Disputes with No Applicable Law: Resolution Methods

In reality, numerous disputes have previously arisen, leaving the Courts perplexed due to the lack of laws addressing such disputes. Consequently, many such cases have been refused for trial by the Courts.

Deriving from the reason that civil cases lack applicable laws, and fall under the scope of civil law regulation, the 2015 Civil Procedure Code (BLTTDS 2015) allows the Courts to apply customs, analogous application of law, or the fundamental principles of civil law, precedents, and fairness to resolve such cases.

The principle of application is stipulated in Article 45 of the BLTTDS 2015. To be specific:

- Application of customs: In cases where the parties have no agreement and the law does not provide for the issue, the applicable custom must not contravene the fundamental principles of civil law prescribed in Article 3 of the Civil Code;- Analogous application of the law: In cases where the parties have no agreement, the law does not provide for the issue, and no custom exists, analogous application of the law is permitted;- Application of the fundamental principles of the law, precedents, or fairness in cases where neither customs nor analogous law can be applied.

Particularly regarding precedents, applicable precedents are those selected by the Judicial Council of the Supreme People’s Court and promulgated by the Chief Justice of the Supreme People’s Court. Up till now, the Supreme People’s Court has issued a total of 16 precedents in various fields such as marriage and family, inheritance distribution, contract disputes...

For more notable updates, please refer to the 2015 Civil Procedure Code.

- Doan Trinh -

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