Hanoi-Vietnam: Clarification on reference and application of precedents in adjudication

According to the regulations, when adjudicating, the Judge and Juror must research and apply precedents to settle similar cases, ensuring that cases with similar legal facts and events must be settled in the same way. The reference, application, or non-application of precedents when adjudicating and settling specific cases must be carried out in accordance with the guidelines provided in Resolution 03/2015/NQ-HDTP.

Article 8 of Resolution 03 stipulates the principles for applying precedents in adjudication in Vietnam as follows:

1. Precedents are studied and applied in adjudication after 45 days from the date of publication or as recorded in the decision to publish the precedent by the Chief Justice of the Supreme People's Court.
2. When adjudicating, the Judge and Juror must research and apply precedents to settle similar cases, ensuring that cases with identical legal facts and events are settled in the same way. In the event of applying precedents, the court's judgment or decision containing precedents, the nature and facts of the similar cases mentioned in the precedents, and the nature and facts of the case being settled, the legal issues in the precedent must be referred to, analyzed, and clarified in the court's judgment or decision; In the case of not applying precedent, the reasons must be analyzed, argued, and clearly stated in the court's judgment or decision.
3. In cases where the Law, Resolutions of the National Assembly of Vietnam, Ordinances, Resolutions of the Standing Committee of the National Assembly of Vietnam, and Decrees of the Government of Vietnam change, making the precedent no longer appropriate, the Judge and Juror shall not apply the precedent.
4. In cases where the precedent is no longer appropriate due to changes in the situation, the Judge and Juror shall not apply the precedent, and must immediately propose to the Council of Justices of the Supreme People's Court (through the Department of Legal Affairs and Scientific Management) to consider its abolition according to the guidance in Clauses 2, 3, 4, and 5 of Article 9 of this Resolution.

Based on the above principles, the Supreme People's Court off Vietnam answers questions about reference and application of precedents in Official Dispatch 146 as follows:

- When adjudicating and settling cases that have precedents, the Judge and Juror must research those precedents to decide whether to refer to, apply, or not apply them.

- If applying the precedent, the precedent number, the judgment number, court decisions containing the precedent, the nature and facts of similar cases mentioned in the precedent, and the legal issues in the precedent must be referred to and analyzed in the "Court's Findings" section. The core content of the precedent may be quoted verbatim to clarify the court's perspective in adjudicating and settling similar cases.

- If not applying: In case the Judge and Juror find that the precedent and the case being settled do not share similar characteristics or due to legal changes or changes in the situation making the precedent no longer appropriate, but one of the parties involved, their lawyer, or legal representative requests the application of the precedent, the reasons for not applying the precedent must also be clearly stated in the court's judgment or decision.

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