07/10/2022 10:17

Similar application of law – trial practice in Vietnam

Similar application of law – trial practice in Vietnam

In the trial practice of the Court of Vietnam, the same application of the law is often applied in some cases. So when does the Court apply the same law in trial and with what arguments?

At the Judgment 25/2019/DS-ST dated June 7, 2019 on the dispute over the contribution contract, the content is as follows:

“In the years 2017 and 2018, Ms. T1 participated in 01 period of ten months and three weeks of fortification, which was commission-free and profitable by Mrs. Mai Thi C (named in the drying session is N2), Mr. Tran Quoc T2 and Mr. be the head of the draft. Each of Mrs. T1 participated in 1 part, all the parts were still alive and had contributed money until August 23, 2018, the lunar calendar, when Mrs. C announced that she had stopped opening.

Mrs. T1 has paid an amount of VND 18,600,000, so when Ms. C broke up, Ms. T1 asked to force Ms. C and Mr. T2 to return the money to Mr and Mrs. T1.

The Tam Binh District People's Court has decided to accept the lawsuit claim of Ms. Vo Thi Tuyet T1. Forcing Mrs. Mai Thi C and Mr. Tran Quoc T2 to jointly pay Ms. Vo Thi Tuyet T1 and Mr. Nguyen Van T3 the amount of VND 18,600,000.

The application of similar provisions of law is the judgment of applying the provisions of the law established for a specific situation to a similar situation but without a clear solution.

One of the features of civil law is that the ability to apply similar provisions is widely recognized. In many specific cases, the Civil Code has recognized this possibility and the following provisions demonstrate this.

The Civil Code 2005 of Vietnam has provisions on housing in Articles 492 to 499, but there is no provision for renting houses to live in. With regard to renting a house for non-residential purposes such as business or factory, the 2005 Civil Code recognizes the possibility of applying a similar provision in Article 500, accordingly, "unless otherwise provided by law, the provisions of Articles 492 to 499 of this Code shall also apply to the rental of houses used for purposes other than residential rentals". Similarly, the Civil Code 2005 has provisions on buying and selling houses from articles 450 to 454 but there is no regulation on buying and selling houses without residential purposes and in Article 455 stipulates: In cases where there is no law otherwise, the provisions of Articles 450 to 454 of this Code shall also apply to the purchase of a house used for a purpose other than the purchase of a house.

In addition, the 2005 Civil Code contains provisions on the sale and purchase of property from articles 428 to 448, but there are very few provisions related to the exchange of property in Articles 463 and 464. Therefore, the legislators have applied Similar to the law in Clause 4, Article 463, whereby: “The provisions on sales contracts from Articles 428 to 437 and from Articles 439 to Article 448 of this Code also apply to property exchange contracts.”

The Civil Code 2015 of Vietnam has provisions on contracts from Article 385 to Article 429 without any provisions on invalid contracts. Meanwhile, in essence, the contract is also a civil transaction, so in Clause 1, Article 407, "The provisions on invalid civil transactions from Article 123 to Article 133 of this Code also apply to with a void contract”. Similarly, in the civil code, there is a reciprocal application of the provisions of different types of contracts, as in Clause 2, Article 455 of the property exchange contract, which stipulates: “Stipulations on the sale and purchase contract from Articles 430 to Article 439, from Articles 441 to Article 449 and Article 454 of this Code also apply to property exchange contracts”; Clause 1, Article 501 on contracts on land use rights: “The general provisions on contracts and the contents of relevant common contracts in this Code also apply to contracts on land use rights,

In the practice of adjudicating in the above judgment, the Court applied the provisions of Decree No. 19/2019/ND-CP to settle disputes. Although the law does not stipulate that the owner of the tontine will voluntarily stop opening the tontine, the members who have contributed and have not yet received the tontine are considered automatically withdrawing from the tontine and receiving their money back.

However, the Court has additionally applied Article 6 of the 2015 Civil Code of Vietnam on the similar application of the law, which stipulates: "In case a relationship arises within the scope of the civil law and the parties do not have an agreement If the law has no provisions and no applicable custom, the provisions of the same law governing civil relations shall apply. Where it is not possible to apply the same law as prescribed in Clause 1 of this Article, the basic principles of civil law prescribed in Article 3 of this Code, case law, and fairness shall apply" and Point a, Clause 2, Article 10 of Decree No. 19/2019/ND-CP stipulates: “members who have contributed them but have not received them… get their share back as agreed. In case there is no agreement, members who withdraw from the line will be entitled to receive back the shares they contributed at the time of termination of their line…”.

Therefore, the fact that Mrs. T1 asks Mrs. C and Mr. T2 to be jointly responsible for returning the money contributed to her and Mr. T3 is grounded in accordance with the rights of members and the obligations of the employer to participate in the enjoyment of commissions and profits as specified in Clause 3, Article 15, Clause 8, Article 18 of Decree No. 19/2019/ND-CP, consistent with fairness.

The above is a practical example of the application of the same law in court proceedings, readers for reference and comments.

>> CLICK HERE TO READ THIS ARTICLE IN VIETNAMESE

Quang Chinh
15


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