Vietnam: Case law and the role of case law in the Court's judicial activities

Regulations on the tasks of the Judicial Council of the Supreme People's Court, in Clause 2, Article 22 of the Law on the Organization of People's Courts 2014, state: "Selecting the precedent decision of the Judicial Council of the Supreme People's Court, the effective judgments and decisions with the legal force, the standard of the Courts, summarizing the development into precedents and publishing precedents for the Courts to study and apply in trials."

1. What is case law?

Case law (Jurisprudence, in French), is understood as the interpretation and application of laws by courts regarding a legal point. This approach is considered a precedent, which allows subsequent judges to follow in similar cases. In simple terms, following jurisprudence means that lower courts apply previous rulings of higher courts to make similar rulings in similar cases.

According to the perspective of legal scholars in the Anglo-Saxon legal system (English - American law), jurisprudence has two meanings. In a narrow sense, jurisprudence includes all decisions, judgments declared by the court that have legal value as a source of law, establishing principles and foundations for applying to future cases, or using existing principles as a basis for deciding future cases. In a broader sense, jurisprudence is the mandatory principle requiring Judges in the court system to rely on previous judgments, especially those of the higher courts (High Court), Court of Appeal, and Supreme Court, or on principles not defined by law, but established through court decisions.

In countries following the continental European legal system (Civil Law system), such as France, Germany, Italy, and Japan, jurisprudence is seen as a way of legal interpretation. These judgments are not considered laws and do not have legal binding force, but lower courts must refer to them; otherwise, the risk of being overturned by higher courts is high.

The basis for the formation of jurisprudence is the shortcomings of the legal system. When there are shortcomings in the legal system, the court will cite legal grounds that are considered reasonable to make a breakthrough ruling, and this ruling will be published by the Supreme Court as a precedent to be applied to similar cases where there are shortcomings or no clear legal provisions. In foreign countries, the concept of case law is also known as precedent, which is one of the official and important sources of law in the legal system of a country and is widely applied. Accordingly, the judgments and decisions in case law journals become models and a basis for courts to make rulings in subsequent cases with similar circumstances and issues. Precedent in foreign countries is also the process of making law by the court in recognizing and applying new principles in trials.

From the broadest perspective, it can be seen that the term jurisprudence contains the basic content of the term precedent, and although there are differences in terminology, they both refer to the same concept. In essence, jurisprudence is also precedent, as both originate from the court and are formed through the trial process. On the other hand, precedent is a term used to refer to a legal form, while jurisprudence refers to the source of law, which is also a legal form. In other words, precedent is a legal form or the process of making law by the court, while jurisprudence refers to the judgments and decisions that the court uses as a basis for future cases with similar circumstances. Although these are not truly synonymous, usually, subsequent rulings that have similar applicability and are selected and published by the competent state authorities for scientific research and reference purposes are called jurisprudence.

However, another viewpoint argues that precedent and jurisprudence are independent concepts. Precedent is understood as the court's law-making process for recognizing and applying new principles based on previous cases for similar cases and issues. On the other hand, case law is a collection of cases that have been tried by the judiciary, or simply the court's judgments (judgments), which are used as a basis for resolving similar cases in the future.

In other words, legal precedents are a form of law or the process of making laws by the Court; Case law refers to the judgments and decisions that the court relies on to apply to similar cases in the future. These are not synonymous and do not refer to each other. In the field of international justice, case law is also understood as precedent or court practice. It refers to judgments or decisions of the Court that reflect the Judge's views on legal issues that are decisive in resolving certain cases and have significant implications for corresponding relationships in the future.

It is also important to distinguish the concept of model cases. Model cases are judgments built on very strict legal grounds in situations where it is difficult to make different rulings. Therefore, in similar situations, the court must make similar rulings as in model cases. One thing to note is that when a judgment is considered a model case, the Supreme Court will transmit it to lower courts as a reference, and the lower courts will consider it a "template" for adjudicating similar cases.

The similarity between case law and model cases is that under similar conditions, the court must make common rulings that are considered standards, and these rulings are recognized as binding values. The author believes that this has caused a lot of confusion between case law and model cases if not carefully studied. While case law is developed from judgments, decisions of the Court before legal regulations are available and are still applied by the Courts when legal regulations are available, unlike case law, the application environment of model cases in legal relationships seems to have no restrictions in the legal field because the application of model cases usually does not violate ordinary legal principles. As mentioned above, the birth of model cases is based on very strict legal grounds in situations where it is difficult to make different rulings. For example, Article 278, Clause 1 of the Penal Code stipulates the crime of "embezzlement", in which the minimum and maximum prison sentences range from 02 to 07 years, with a considerable gap between the upper and lower limits. To avoid situations where there are the same legal signs, the same circumstances (no aggravating circumstances, no mitigating circumstances of criminal responsibility; good personal profile of the offender, etc.),  there are cases in which the Judging Panel sentences this defendant with the lowest sentence of the range; there are cases in which the Judging Panel sentences a 3-year prison sentence and grants a suspended sentence; there are cases where a 4-year or 5-year prison sentence is imposed;... completely lacking in fairness that the law has provided for them. This has in practice caused much controversy in judicial proceedings, so model judgments will be selected and recommended by the competent courts to lower courts, especially judges, as a reference for similar cases in order to come up with the most appropriate handling solutions.

In the author's view, in the context where the legal system of our State has not been perfected and is constantly changing to be in line with the Party's policies and guidelines, building a market-oriented socialist-oriented economy with diverse forms of ownership and economic components, in which the state-owned economy plays a leading role, and deep integration into the world economy, the reality is very diverse and rich, so the selection and issuance of model judgments to ensure uniformity in the application of legal content in the system of our courts in trials is indeed very difficult. And it is also for this reason that the term "precedent" is used in Resolution No. 49/NQ-TW dated June 2, 2005 of the Politburo on the Strategy for Judicial Reform until 2010; at Point c, Clause 2, Article 22 of the Law on the Organization of People's Courts in 2014, instead of the term "model case".

2. Case law around the world

In many countries around the world, the announcement of judgments is carried out regularly, continuously, and widely through many mass media, including the Internet. For countries following the Anglo-American common law system (Common Law), sample judgments are selected, published in case law reports (Law Reports), and become case law (Case Law), a source of law. Particularly in the US, when adjudicating violations of the law and arising disputes, courts need to interpret the law using previous judgments of the Court at the same level or a higher Court. This is called the principle of prior decision, or simply called case law or legal precedent. If faced with unfavorable case law, the defendant will seek to differentiate his case from previous cases. The higher court will then seek to resolve this conflict to supplement the more complete case law. In France, in cases where the law is unclear or incomplete, the judge must still pronounce a sentence if he or she does not want to be sued for denying justice. Therefore, the only stable way is for the Judge to rely on recognized case law to make a decision. On the other hand, in the Federal Republic of Germany, the method of building precedents has created conditions for the Court of this country to play a creative role; especially when interpreting the law, the Court is based on the wording, context, and purpose of the regulation, including the process of drafting that regulation. In particular, the Court also has the right to choose the interpretation most suitable to the constitution. Case law formed from the interpretation of a legal norm is as valuable and effective as the legal norm itself. Clearly, case law is valuable not only in practice, but also as a legal norm. In Spain, influenced by Roman law, case law is still considered a source of law, valuable in supplementing the legal order through doctrines applied by the Supreme Court in the process of explaining and applying laws and customs, including general principles of law. In the United Kingdom, the creative role of case law is highly significant, as demonstrated by the doctrine of precedent that emerged in the early 19th century. This doctrine is understood as an established rule in a previous judgment that is binding on judges when adjudicating similar cases. The construction of case law according to the judicial viewpoint of courts with authority to review judgments of lower courts has contributed to supplementing the shortcomings of legal regulations in practice, so the application of court judgments Customs, including legal customs, are practiced quite commonly. The development of case law through the perspectives of competent courts considering lower court judgments has greatly contributed to supplementing the considerations of legal provisions in practice. As a result, the application of case law, including customary law, is quite common. Therefore, researchers argue that the legal system in the UK follows a flexible approach, not rigidly relying on statutory laws enacted by Parliament, but rather incorporating a flexible and appropriate application of laws that align with practicality, customs, and social justice.

Typically, judgments with similar applications and recorded in publications authorized by the state are referred to as case law. For example, see the case of Moorgate Mercantili v Twitchings [1976].1.QB, 225, CA, is a recognized case law. This judgment was made by the Court of Appeal after reviewing the appealed judgment from the lower court. It involved a lawsuit between Moorgate Mercantili and Twitchings regarding damages caused by the latter's actions that led to misplaced trust. In this case, Lord Denning, a judge in the Court of Appeal, made rulings that explained the doctrine of estoppel as follows: when a person expresses themselves through words, promises, and specific actions, causing another person to believe and enter into a transaction, they cannot abandon the obligations arising from their promises and actions. This judgment became case law, and in subsequent similar cases, if a party enters into an agreement with another but fails to fulfill it, causing harm, they can be sued and ruled against based on this case law.

Currently, most countries with advanced legal systems apply case law in their court systems, driven by the practical requirements of adjudication. Courts are not allowed to reject any citizen's lawsuit, and this deep integration into the global economy has profound reasons, applying to both Anglo-Saxon and Continental legal systems, including those of socialist countries.

3. Case law in Vietnam

Under the Saigon regime before 1975, case law was also considered a source in the civil field. The Ministry of Justice regularly publishes case law every three months. These publications contained excerpts of viewpoints or guidance on adjudication in judgments from the Supreme Court, Administrative Court, and Appellate Court. These judgments served as legal grounds for subsequent disputes of similar nature. The legal system of the former Saigon regime was influenced by European law, especially French law, with a particular emphasis on civil law. Therefore, the development of case law was also highly valued.

The Law Ministry, under the presidency of Nguyen Van Thieu, issued the Law Code under Decree No. 028 TT/SLU on December 20, 1972, which included provisions related to the requirement of applying case law in adjudication. Specifically, in the introductory section, Article 8 states: "A judge who refuses to adjudicate due to the absence of clear or unambiguous laws or due to deficiencies may be prosecuted for refusing to fulfill their legal duties." Article 9 stipulates: "In cases where there are no applicable laws, the judge shall decide based on customary practices; if there are no customary practices, they shall decide fairly and justly, taking into consideration the intentions of the parties involved." According to research experts, the previous regime's laws, therefore, had case law due to the Court of Appeals (Cour d’appel) and the Court of Cassation (Cour de cassation), which were control bodies reviewing judgments from lower courts. Thus, the Court of Cassation ensured uniformity in the interpretation and application of laws, gradually leading the court system to follow the precedents set by the Court of Cassation.

During the period of advancing socialism in northern Vietnam, in order to unify the punishment of certain crimes, on January 19, 1955, the Prime Minister issued Circular No. 442/TTg on the punishment of certain crimes. According to the Directive, it stated: "...The judicial experience in handling certain types of offenses has become precedents. However, these precedents vary among different localities. The judicial approach, therefore, is not unified, clear, and in some places, it is incorrect. It is necessary to unify these precedents in the following general regulations to guide the courts in punishing certain common crimes.

However, these precedents vary among different localities. The judicial approach, therefore, is not unified, clear, and in some places, it is incorrect. It is necessary to unify these precedents in the following general regulations to guide the courts in punishing certain common crimes.

1. Theft: imprisonment from 3 months to 3 years.

- Organized robbery or theft with violence or the use of weapons to intimidate shall be punished with imprisonment for 3 to 10 years.

- Robbery resulting in murder can be punished by the death penalty.

2. Deception, betrayal of trust: imprisonment from 3 months to 5 years.

3. Assault and battery: imprisonment from 3 months to 5 years.

- Organized assault and battery or causing serious injury or death can be punished with up to 20 years of imprisonment.

- Intentional homicide: imprisonment from 5 to 20 years; if there are mitigating circumstances, the sentence can be reduced to 1 year; premeditated murder can be punished by the death penalty.

4. Careless or unlawful traffic accidents causing injury to others shall be punished with imprisonment from 3 months to 3 years. If the accident results in death, the offender can be sentenced to up to 10 years of imprisonment.

For offenses similar to those mentioned above, the courts may impose punishments as outlined.

During trials, the courts must be cautious, avoiding mechanistic approaches, and should not be overly flexible to stray from the government's policy of punishment. They must follow the guidelines set within the prescribed scope. However, later on, case law was not officially recognized and applied.

The project "Development of the legal precedent of the Supreme People's Court" (issued according to Decision 74/QD-TANDTC on October 31, 2012) aims to improve the quality of judgments and decisions of the court system in general, especially the decisions of the Director of the Judicial Council of the Supreme People's Court and the specialized courts of the Supreme People's Court, in order to ensure the correct and uniform application of the law, thereby guaranteeing equality before the law for all organizations and citizens. The project also sets out the guiding principles to instruct courts to apply the law uniformly, summarize trial experience, enhance the responsibility of judges in trial proceedings, and strengthen the training and development of legal professions to meet the requirements of judicial reform. It proposes several measures to develop the legal precedent of the Supreme People's Court, such as recommending the construction of legal normative documents as a legal basis for the development of legal precedents, improving the writing and approval of court judgments and decisions, especially the decisions of the Director of the Judicial Council of the Supreme People's Court, enhancing the use of legal precedents in trial practice, and establishing a specialized department to collect legal precedents. 

No one can deny the role of legal precedents in trial practice because it is evident that no legal system can cover all social situations. Therefore, supplementing the law with legal precedents is necessary. However, legal experts argue that in order for legal precedents to have a "place" in the legal culture of Vietnam, in addition to unifying the model of developing legal precedents to maximize their positive factors in trial practice in Vietnam, it is also necessary to focus on training lawyers and innovating the legal thinking of judges and lawyers.

However, there are also differing views on the recognition and application of legal precedents in Vietnam. Because our legal system is constantly being amended and supplemented, the policies and laws will not be the same for each specific period. Legal precedents are indeed laws, but applying the rulings of those precedents to subsequent cases while the laws are constantly changing can be challenging. Moreover, in a country with a written legal system like Vietnam, the Constitution is the highest legal document. Article 2 of Article 103 of the 2013 Constitution stipulates: "Judges, juries, and assessors are independent and only obey the law..." Therefore, there is no other choice but to follow the law.

From a legal scientific perspective, our laws are in the form of a framework, so it is normal for trials in different courts to differ. The key issue is to ensure fairness for the innocent and guarantee justice for the parties involved.

The author believes that compiling standardized judgments of the Director of the Judicial Council into legal precedents to fill in the gaps that the written law has not yet addressed is not only a necessity for our judicial system but also for judicial systems in other countries. Firstly, for specific disputes that the law does not clearly regulate or has not yet regulated, judges should apply other provisions of the law to resolve them. If the ruling is not subject to review, it can serve as a reference for similar disputes. This ruling can be considered a legal precedent, and relevant authorities should gather and widely distribute it for reference. This benefits the uniform application of the law and helps litigants predict the outcome of disputes. The solutions derived from these legal precedents will gradually be elevated to written provisions. In another aspect, practical situations always present unexpected challenges that the law cannot anticipate. If judges wait for new regulations, it will affect the right to sue the people. In such cases, applying legal precedents can overcome this drawback. Of course, our country is a multi-ethnic nation living harmoniously in all regions of the country, each with its own long-standing culture, customs, and traditions. In a new context, with the strong development of civil society and the country's strong integration process, we must accept many international commercial practices... However, the laws enacted are increasingly lacking and have many inconsistencies, and the legislative process of the National Assembly cannot be accelerated further. Therefore, we need to recognize and supplement the law with these customary practices in order to effectively manage society.

The issue that many people are concerned about is which judgments will become precedents for courts and judges to refer to. As mentioned in the Development of Precedents Project by the Supreme People's Court, the viewpoint expressed in the decisions of the Chief Justice Council of the Supreme People's Court is considered a precedent, and lower courts should make rulings that are consistent with these precedents. In our country, the authority to interpret the law lies with the Standing Committee of the National Assembly, but in practice, when encountering cases where the law is unclear or not regulated, this agency rarely issues explanatory documents. On the other hand, judges are the ones who directly apply the law to resolve disputes, so it is most appropriate to consider the Chief Justice Council's decisions as legal explanations through judgments. From these legal explanations, lawmakers will elevate them to become legal norms to end the practice of conducting trials without citing any legal basis.

Furthermore, through the practical activities of the judicial system, the Supreme People's Court answers the difficulties of lower courts regarding specific criminal trial approaches or the application of legal provisions, so that lower courts can study and learn from these experiences in similar cases. Although these are not mandatory regulations, they serve as guidance for lower courts to apply uniformity in handling similar cases. Although they are only circulated internally, as stated in the "Introduction" section of the book "Answers to Some Issues in Criminal, Civil, Economic, Labor, Administrative, and Litigation Matters" published by the Supreme People's Court in 1999, it is written: "... To serve the protection of the law and research, the Supreme People's Court compiles the issues that have been answered in official documents into a book...". In addition, the Supreme People's Court organizes annual summaries to draw practical experiences, provide guidance for trial work, and timely resolve professional difficulties in lower courts through summary documents guiding the trial work of the Supreme People's Court. These documents may be resolutions of the Chief Justice Council of the Supreme People's Court, etc. Besides, the Supreme People's Court has facilitated the selection and publication of many decisions of the Chief Justice Council of the Supreme People's Court in various fields, including criminal, civil, and commercial matters, to serve trial work, scientific research, and public knowledge, application, or reference. Therefore, it is clear that the documents containing content that guides trial work are a form of precedent that local courts always apply in their professional work.

In conclusion, applying precedents goes beyond resolving a specific case and establishes a precedent for future similar cases. Therefore, it creates equality in the trial of similar cases, helps predict the outcomes of disputes, saves the efforts of judges, litigants, and prosecuting authorities, and promotes fairness in society. Precedents are a standard measure for judges to follow as they are condensed, carefully selected, and professional. Judges only need to compare and refer to these precedents to make rulings, avoiding individual perspectives and evaluations of the issue. This helps avoid the public perception that court trials are unfair. At the same time, applying precedents also helps entities negotiate, draft, and sign civil and commercial contracts to avoid risks.

MSc. Le Van Sua

Source: Ministry of Justice electronic information portal

Key word: case law | precedent | Vietnam | Court | Supreme People's Court |

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