Regulations on application of analogy of law in Vietnam

Regulations on application of analogy of law in Vietnam (Source: internet)

Regulations on application of analogy of law in Vietnam

The Civil Code 2015 stipulates the application of analogy of law in Vietnam as follows

In cases where an issue rises under scope of civil law which it is neither provided for by law nor agreed upon by the parties nor, nor applied by practices, analogy of law shall apply.

In cases where it is impossible to apply analogy of law as prescribed in Clause 1 of this Article, basic principles of civil law provided for in Article 3 of Civil Code 2015, case law, and justice shall apply.

In particular, the basic principles of civil law include:

- Every person shall be equal in civil relations, may not use any reason for unequal treatment to others, and enjoy the same protection policies of law regarding moral rights and economic rights.

- Each person establishes, exercises/fulfills and terminates his/her civil rights and obligations on the basis of freely and voluntarily entering into commitments and/or agreements. Each commitment or agreement that does not violate regulations of law and is not contrary to social ethics shall be bound by contracting parties and must be respected by other entities.

- Each person must establish, exercise/ fulfill, or terminate his/her civil rights and/or obligations in the principle of goodwill and honesty.

- The establishment, exercise and termination of civil rights and/or obligations may not infringe national interests, pubic interests, lawful rights and interests of other persons.

- Each person shall be liable for his/her failure to fulfill or the incorrect fulfillment of any such civil obligations.

Based on the above principle, Clause 2, Article 45 of the Civil Procedure Code 2015 also stipulates the application of the same law as follows:

The Courts shall apply law provisions applicable to the same matters to resolve civil cases when the involved parties do not reach agreements on and the law does not provide for such cases as prescribed in Article 5 of the Civil Code and Clause 1, Article 45 of the Civil Procedure Code 2015.

When applying law provisions applicable to the same matter, the Court shall determine clearly the legal nature of the civil cases, determine clearly that in current legal system there is no legal provisions cover such relationship and determine legal provisions cover similar civil relationship

Practical examples of the application of analogy of law in Vietnam

The Judgment 25/2019/DS-ST dated June 7, 2019 on the dispute over the contribution contract has the following contents:

In the years 2017 and 2018, Ms. Vo Thi Tuyet T1 participated in one period of ten months and three weeks of hui, which was commission-free and profitable by Mrs. Mai Thi C (whose name in the drying house is N2). Mr. Tran Quoc T2 is the editor. Mrs. T1 participated in 1 part each. All of them were still alive and had contributed money until August 23, 2018 of the lunar calendar, when Mrs. C announced that she had stopped opening.

Mrs. T1 had paid the amount of VND 18,600,000, so when Ms. C broke down, Ms. T1 asked to force Ms. C and Mr. T2 to return the money to Mr. and Mrs. T1.

The court decided to accept the petition of Ms. Vo Thi Tuyet T1. Mrs. Mai Thi C and Mr. Tran Quoc T2 will pay VND 18,600,000 to Ms. Vo Thi Tuyet T1 and Mr. Nguyen Van T3.

Specifically, the Court applied the provisions of Decree 19/2019/ND-CP to settle disputes.

Because the law does not stipulate that the owner of the hui will voluntarily stop opening the hui, the member who has not yet received the contribution is considered to be automatically withdrawing from the hui hui and receives the contributed money back, so in this case, the same law applies.

Mrs. T1's request that Mrs. C and Mr. T2 be jointly responsible for returning the money contributed to her and Mr. T3 is grounded in accordance with the rights of the members and the obligations of the owner when participating in the commission and earning profits as specified in Clause 3, Article 15, Clause 8, and Article 18 of Decree 19/2019/ND-CP, in accordance with fairness.

Chau Thanh

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