What is precedent? Criteria for selecting precedents in Vietnam

1. What is precedent? Criteria for selecting precedents in Vietnam

What is precedent?

According to Article 1 of Resolution 04/2019/NQ-HDTP, a precedent means arguments and rulings in a legally effective judgment or decision (hereinafter referred to as “judgment") of the courts that are selected by the Council of Justices of the Supreme People’s Court and published by the Chief Justice of the Supreme People’s Court in order for other courts to study and apply them when deciding later cases.

Criteria for selecting precedents in Vietnam

According to Resolution 03/2015/NQ-HDTP, the precedents to be selected must satisfy all the criteria below:

- Being able to clarify ambiguous provision(s) of the law which have differing interpretations, analyze and explain legal issues or events, and point out legal principles and guidelines to be followed in a specific situation or equality to be displayed in issues which lack specifying provisions of the law;

- Having normative value;

- Ensuring the consistency of law in adjudication.

2. What are the cases of applying precedents in Vietnam?

Pursuant to the provisions of Article 8 of Resolution 04/2019/NQ-HDTP, regulations on applying precedents in adjudication in Vietnam are as follows:

- Each precedent shall be studied and applied in adjudication after 30 days from the date on which it is published.

- The judges and the lay judges must study and apply the precedent to settle similar cases so that the two cases had similar facts to one another shall have the same settlement results. If the precedent is not applied in a case with similar facts, the Courts must provide explanation in the judgment.

- If a precedent is used, name of the precedent, legal cases, legal solutions in the precedent and legal case of the case being adjudicated must be cited and analysed in the section of “The Court’s remark”; depending on specific situations, the whole or part of the precedent can be cited to clarify the point of the Courts while adjudicating, handling similar cases.

Thus, the application of precedent does not require that precedent to be announced before bringing the precedent to a first-instance trial. Therefore, the court of appeals can apply precedent for trial.

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