What is the precedent? Criteria for selection and ratification of precedents in Vietnam

Regarding this issue, LawNet would like to answer as follows:

1. What is precedent?

Article 1 of Resolution 04/2019/NQ-HDTP stipulates that 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.

What is the precedent? Criteria for selection and ratification of precedents in Vietnam (Internet image)

2. Criteria for selecting precedents in Vietnam

Pursuant to Article 2 of Resolution 04/2019/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.

3. Cases of ratification of precedents in Vietnam

According to Article 6 of Resolution 04/2019/NQ-HDTP,  The Chief Justice of the Supreme People’s Court shall hold a general meeting of Council of Justices of Supreme People’s Court to discuss and vote on ratification of precedents.

The precedent is to be considered ratified if it falls in any of the following circumstances:

- It is developed from a legally effective judgment of the Court and it has been consulted on according to guidelines specified in Article 4 and Article 5 of this Resolution;

- It is proposed by the Justices of the Supreme People’s Court;

- It is proposed by the Boards of Justices of the Superior People’s Courts;

- It is selected by the Council of Justices of the Supreme People’s Court during reopening procedure and cassation procedure.

A meeting of the Council of Justices of the Supreme People's Court is considered valid when it is attended by at least two-third of members of the Council of Justices; a decision of the Council of Justices of the Supreme People's Court is ratified when it is voted for by more than half of the participating members.

The voting result of precedent ratification shall be recorded in the meeting minutes of the Council of Justices and served as the basis for the Chief Justice of the Supreme People’s Court to publish precedents.

4. Publication of precedents in Vietnam

- The Chief Justice of the Supreme People’s Court shall issue a decision to publish the precedents ratified by the Council of Justices of the Supreme People’s Court.

- A published precedent must contain:

+ Number and name of the precedent;

+ Number, name of the judgment of the court proposed to be developed into precedent;

+ Legal cases and solutions in the precedent;

+ Provisions of the law relating the precedent;

+ Keywords of legal cases and solutions in the precedent;

+ Details of the case and ruling of the Court relating the precedent;

+ Contents of the precedent.

- The precedents shall be uploaded on the website of the Supreme People’s Court; sent to Courts, units affiliated to the Supreme People’s Court and published in the law reports/reporters.

(Article 7 of Resolution 04/2019/NQ-HDTP)

5. What are the cases of annulment of precedents in Vietnam?

According to Article 9 of Resolution 04/2019/NQ-HDTP, precedents will be annulled if they are no longer suitable due to the changes of the lawsoft.

- The Council of Justices of Supreme People’s Court will consider and decide on the annulment of precedent when:

+ The precedent is no longer suitable due to other changes;

+ The judgment on which the precedent is based has been annulled, entirely amended or only the section related to the precedent of the judgment is amended.

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