What is precedent? Criteria for selecting precedents in Vietnam

What is precedent?

Pursuant to Resolution 04/2019/NQ-HDTP, a precedent means arguments and rulings in a legally effective judgment or decision 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 precedent? Criteria for selecting precedents in Vietnam (Internet image)

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.

Ratification of precedents

Pursuant 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.

Procedures for publication of precedents in Vietnam

Pursuant to Article 7 of Resolution 04/2019/NQ-HDTP, 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.

Apply precedent in trial
Pursuant to Article 8 of Resolution 04/2019/NQ-HDTP, it is stipulated that case law shall be studied and applied in trial after 30 days from the date of publication.

During trial, judges and jurors must research and apply precedents to ensure that cases with similar legal situations are resolved equally. In case the case has similar legal situations but the Court does not apply the precedent, the reason must be clearly stated in the Court's judgment or decision.

In case the Court applies precedents to resolve the case, the number, name of the precedent, legal situations, legal solutions in the precedents and legal situations of the case being resolved must be cited and analyzed. analysis in the "Court's Comments" section; Depending on each specific case, all or part of the content of the precedent can be quoted to clarify the Court's viewpoint in adjudicating and resolving similar cases.

Mai Thanh Loi

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