Nature of precedents in Vietnam
NATURE OF PRECEDENTS IN VIETNAM
Vu Kim Hanh Dung
University of Economics and Law, National University Ho Chi Minh city, Vietnam
Phan Thi Huong Giang
University of Economics and Law, National University Ho Chi Minh city, Vietnam
ABSTRACT
The global legal diffusion has permeated the concept of precedents to socialist
countries, including Vietnam. In 2015, the Supreme Court of Vietnam has established an
official precedent system by the issuance of Resolution No. 03/2015/NQ-HDTP on
Process for Selecting, Publishing and Adopting Precedents, which was replaced by
Resolution No. 04/2019/NQ-HDTP on Process for Selecting, Publishing and Adopting
Precedents. Since the first precedent issued in April 2016, up to now, there are fourty
three precedents have been issued and widely adopted by other courts in the country.[1]
This article is intended to explain why precedents appear in the Socialist Law countries
such as Vietnam and compare precedents in Vietnam with those in other legal systems,
thereby addressing the possibility of referring to foreign precedents in Vietnam as one
direction of development for Vietnamese precedents in the future.
Key words: Precedents, Vietnamese precedents, Socialist Law, Precedent Development in
Vietnam
INTRODUCTION
Scholars have revealed that the legacy of precedents in Vietnam date back to the
feudal dynasty of Vietnam (Supreme People’s Court, 2021). The Hong Duc Code of the
Le Dynasty issued in the 15th century contained several rules that summarized certain
precedents related to land issues and an extract from these rules. Hoang Viet Luat Le
(Hoang Viet Law and Precedents) of the Nguyen Dynasty was issued in 1815, and its
name is comprised of two elements: law and precedents. A precedent is a previous ruling
that is important and, therefore, integrated in law.
Precedents were also applied in Vietnam during the French colonial legal system.
Precedents were mentioned in periodic legal publications, such as Recueil De Jurispru-
dence Générale En Matière Administrative, Pénale, Civile, Française Et Indigène. Prece-
dents were also applied by the Republic of Vietnam in the South during the period of the
Vietnam War. Precedents were compiled in a number of publication volumes, such as:
Recueil de Jurisprudence 1948-1967 by Judge Tran Dai Kham. Precedents were also
translated and published by Judges Tran Thuc Linh and Nguyen Van Tho in Vietnamese
Henri Capitant’s Les Grandes Arrêts De La Jurisprudence Civile. These practices origi-
nated from the fact that French law was used under the Republic of Vietnam.
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Since the establishment of the Socialist Republic of Vietnam in 1976, precedents
no longer existed in legal documents and were only presented in academic studies. In-
stead, there were a number of other guidance forms issued by the court as an instrument
for precedent initiatives. Firstly, there was an annual summary report from the SPC [2] in
which the courts drew lessons from trials as well as general guiding principles for con-
sistent application of law for the future. Secondly, cassation trial decisions of the courts
contained general legal provisions that may have had the potential to be developed into
precedents. Since 2004, the courts have compiled and published cassation trial decisions
into volumes. Finally, the courts regularly issue legal instruments called “Resolutions” to
guide domestic courts on how to apply the law when the law in effect fails to meet exist-
ing circumstances of society.
In 2005, the Politburo of the Communist Party of Vietnam issued two important
resolutions: one was Politburo Resolution 48-NQ/TW, dated May 24, 2005 on the Strate-
gy for the Development and Improvement of the Vietnamese Legal System to 2010 and
Direction for the Period up to 2020 (Resolution 48-NQ/TW), drafted largely by the Min-
istry of Justice and other state agencies and focused on legislative and institutional devel-
opment; the other was Politburo Resolution 49-NQ/TW, dated June 2, 2005 on the Strat-
egy of Judicial Reform up to 2020 (Resolution 49-NQ/TW), drafted largely by Party offi-
cials. The first resolution clearly mentions the applicability of “precedent”, [3] while the
second one goes one step further by stating that the Supreme Court is responsible for the
development of precedents.[4]
The Party’s actions led to academic and judicial disputes over precedents in Vi-
etnam. Some argued that precedents were inappropriate in Vietnam for a number of rea-
sons: Vietnamese law relied heavily on written laws, so applying precedents would result
in arbitrary trial; substantive law could be revised to better adapt to social context, and
thus precedents were unnecessary; and the Supreme Court’s judgments might not be cor-
rect, and therefore might not be used as precedents for future trials. Another opposing
opinion with persuasive arguments stated that precedent did not comply with the concept
of socialism by the nature of law that accepts only substantive law.
In contrast, most scholars and lawyers supported the establishment of precedents
in Vietnam. A survey conducted by the Supreme Court showed that local courts in 63
provinces agreed with this idea. The reasons for this support could be divided into 3 cate-
gories: historical element, practical requirements, and international element. Firstly, prec-
edent was not a strange concept in the legal history of Vietnam, as mentioned above.
Secondly, the application of precedents derived from actual demands of the current legal
system to improve the system, as written laws may be unclear and fail to anticipate prac-
tically different cases; to unify the application of law; to ensure a fair treatment for each
citizen under law; to promote the court’s role in interpreting the law; to promote the ca-
pacity and independence of judges; and to ensure the predictability of law. These domes-
tic concerns were the most important reasons for establishing a precedent system. Third-
ly, transnational debates include, among others, international trade disputes involving Vi-
etnam as a state member of the WTO in which precedents may be applied; the involve-
21
ment of Vietnamese citizens or organizations in disputes in Common Law countries;
precedents have become a global trend and become increasingly common even in Civil
Law states; and former socialist countries in Eastern Europe have also accepted the exist-
ence of precedents.[5] These opposing opinions were mainly derived from the fact that
Vietnam has deeply integrated itself into the international community.
In response to the majority approval, the Chief Justice issued Decision 74/QD-
TANDTC on Approval of the Supreme Court’s Precedent Development Project on Octo-
ber 31, 2012 (Decision 74). The greatest concern in this decision is about developing cas-
sation trial decisions of the Supreme Court into precedents. The decision specifies com-
mon objectives, specific objectives and solutions for the development of precedents (in-
cluding recommendations for making adjustment to the constitution,[6] Law on
Organization of People’s Court and others), methods to select and publish cassation deci-
sions in the form of precedents, and methods to guide lower courts to apply precedents.
The decision also has two appendices: one clarifies the definitions of relevant legal terms
while the other presents the main characteristics of precedents in three Common Law
states (the United States, the United Kingdom, and Australia), and three Civil Law states
(France, Germany, and Japan).
To implement the Constitution 2013 and the Party’s Resolutions on precedents,
the National Assembly approved of the new Law on Organization of People’s Courts on
November 24, 2014. This Law allows the Justice Council of the SPC, [7] “to select its
cassation decisions and judgments and decisions of courts which have taken legal effect
and are of standard nature, summarize and develop them into court precedents and publi-
cize court precedents for courts to study and apply in trial.”[8] To develop a unified and
comprehensive legal system for precedents in Vietnam, the Justice Council of the SPC
issued Resolution 03/2015/NQ-HDTP on the Selection, Publication and Approval Pro-
cess on October 28, 2015 (Resolution 03/2015). However, after three years of applica-
tion, Resolution 03/2015 has revealed some shortcomings. For example, the process of
selecting and issuing precedents is complicated; there are no specific instructions on how
to invoke precedents in judgments and decisions of the court; there is no process for ap-
proving the precedents according to the shortened procedure for the cassation decisions
that the Justice Council chose to develop into the precedents at the casassion trial; a num-
ber of general guidelines of the resolution led to many different understandings in prac-
tice; using the term “cancel of precedent” is not appropriate, etc. To overcome those
shortcomings, the Workshop on the Process of Selecting Precedents was held by the SPC
in Hanoi in April 2019. As a result, Resolution 03/2015 was replaced by Resolution No.
04/2019/NQ-HDTP on Process for Selecting, Publishing and Adopting Precedents issued
by the Justice Council of the SPC dated June 18, 2019.
METHODS
The article was based on doctrinal study, legal interpretation and comparative
analysis. For details, the doctrinal study and legal interpretation were applied to find out
the characteristics of precedents in Vietnam. Besides, under comparative perspective,
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precedents in Vietnam were analyzed from the comparision with those in other legal sys-
tems including Common law, Civil law and Chinese laws. Especially, the article used
various sources of data from primary, secondary, and tertiary legal materials to build the
arguments, discussion and conclusions of the research.
FINDINGS AND DISCUSSION
Characteristics of Precedents in Vietnam
Definitions
It is defined in Resolution 03/2015 that: “Precedents are arguments and rulings
written on effective judgments or decisions of the courts that are selected by the Justices
Council of the SPC and published by the Chief Justice of the SPC in order for other
courts to study and adopt them when deciding later cases.” [16] This definition remains
in Resolution 04/2019. It refers to the nature of content, procedures and functions of
Vietnamese precedents. Accordingly, effective rulings and decisions of any court can be
developed into precedents. In terms of procedures, such rulings and decisions can only
become precedents when they are selected and issued by the SPC. In terms of functions, a
precedent will be referred to as a precedent in subsequent cases of a similar nature.
The Process of Precedent Issuance
A precedent is selected, reviewed, and approved through a formal and complex
procedure based on established criteria. The resolution provides three criteria for select-
ing a precedent. Accordingly, a precedent must meet the criteria of “containing argu-
ments to clarify the provisions of the law which have differing interpretations, analyze
and interpret legal issues or events, and legal principles and guidelines to be followed in a
specific situation; having normative value; and ensuring the consistency of law in adjudi-
cation and the same settlement results from the two cases having the same facts or
events.”[16] [17]
Resolution 04/2019 allows all individuals, agencies and organizations to send pro-
posals for suitable effective proposed judgments to the SPC.[17] The SPC will review,
select, and decide on such proposals every six months according to Resolution 03/2015.
However, this provision is not kept in Resolution 04/2019. Accordingly, the SPC will
decide by itself the time to issue the precedents based on the real necessity.
When a proposal is reviewed by the SPC, it will go through a public discussion
procedure, including: publication of the proposal with the SPC’s legal assessment on the
website for public discussion for thirty days,[17] organization of seminars and confer-
ences where lawmakers, professionals, and practicing lawyers will be invited to discuss;
and the legal department of the SPC will report, review, and assess these discussions. Fi-
nally, the proposed precedents will be discussed by the Precedent Advisory Council. This
council is founded by the SPC with 9 members as representatives of the SPC, MOJ, Su-
preme People’s Procuracy, Bar Association, leading legal experts, other agencies, and
one senior representative of the Department of Legislation and Science management of
the Supreme People’s Court.[17] Based on the council’s proposals, the Supreme Court
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will discuss and approve the proposals for precedents at its plenary meeting, and then of-
ficially issue the precedents by the Chief Justice.
One of the highlighted changes in Resolution 04/2019 compared with Resolution
03/2015 is the simplified procedure of ratification of precedents. In Resolution 03/2015,
every case must follow the strict procedure as mentioned above to be ratified as a
precedent. However, according to Resolution 04/2019, in addition to the normal process
of ratification as such, there are cases in which the procedure is shortening, which are in
cases:
the precedent is proposed by the judges of the SPC;
the precedent is proposed by the Boards of Justices of the High courts;
the precedent is selected by the Justice Council of the SPC during
reopening procedure and cassation procedure.
For these cases, the cases will become the precedents without the strict ratification
process needed. Thus, it can be seen that the procedure of issuing the precedents in
Vietnam is developing towards the direction of becoming more simple.
The standard form of a precedent consists of the following elements: title of the
case to be resolved by the court; number of valid court judgments or decisions for devel-
opment of precedents; keywords of legal issues that are resolved in the precedents; de-
scription of facts of the case, and precedent-related judgment; and identification of legal
issues to be resolved with instructions. Then, precedents will be published in the legal re-
view of the SPC and on the website, sent to the courts, and compiled into annual volumes
of Precedents.
The Validity of Precedents
Scholars have categorized two forms of formal binding authority of precedents: (i)
strict binding, which must be applied in all cases; and (ii) revocable binding, which must
be applied in all cases except for any exception. Resolution 04/2015 states that: “The
judges and the jurors must study and adopt the precedent to settle similar cases so that the
two cases had similar facts to one another shall have the same settlement results...”[16]
[17] This means that precedents have official binding authority. However, this official
binding authority is not completed because Resolution 04/2015 also states, “If the prece-
dent is not adopted, they [the judges] must provide interpretation in the judgment.” It
should be further noted that Decision 74/QD-TANDTC requires the establishment of a
mechanism to supervise the judges’ responsibility for negligently making judicial deci-
sions without considering precedent. [6] According to the opinion of a representative of
the SPC,[18] in the process of reappointing judges, the professional qualifications of
judges must be taken into account. If a judge has many decisions canceled or corrected
due to not following the precedents, he or she will not be reappointed. However, it should
be noted that this spirit has not been regulated under legal provisions yet.
Application of Precedents
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When a precedent is applied, the court, in its judgment, must cite, analyze, and
clarify the following elements of the relevant precedent: the number of the precedent,
similar facts and issues raised in the precedent, and legal issues that are resolved in the
precedent. The SPC also issued an official document, which is Official Letter No.
146/TANDTC-PC on Refering and Applying Precedents in Trial, to guide all courts in
the application of precedents. In order to support the application of precedents of local
courts, the Chief Justice issued Directive No. 04/2016/CT-CA, dated May 30, 2016, to
promote an “emulation movement” to “improve the quality of court decisions and judg-
ments to create a source of precedents.” Moreover, the SPC also organized training con-
ferences in different regions and a national online conference to guide local courts on the
application of precedents.
Non-Application and Cancellation of Precedents
The precedent system of Vietnam predicts three situations where a precedent may
not be applied: (1) the case in question does not have the same legal circumstances; (2)
the precedent is no longer appropriate due to a change in the substantive law (new enact-
ment or change of law by the National Assembly or a regulation of the government); and
(3) the precedent is no longer appropriate due to changing circumstances or changes in
political, social, and economic conditions.[17] Furthermore, Resolution 04/2019 allows
for official replacement of a precedent by a law, a guiding document, or a decision by the
SPC. When there are laws or guiding documents by the National Assembly and the gov-
ernment to fill in the gaps, the precedent will be automatically nullified. In addition, the
Justice Council may consider nullifying a precedent when it is no longer appropriate due
to any change of circumstances even though no written law exists to fill in the gap.
Precedents in Vietnam from a Comparative Perspective
Since the formation of the precedent system in Vietnam was derived from the
global concept of precedent, it shares common characteristics with the precedents in
Common Law and Civil Law states. However, depending on the guidelines, organiza-
tions, regulations and procedures for formulation of a precedent, and its implementation
and effectiveness that are shaped by Marxist legal positivism, the “socialist legality” and
“democratic centralism” still have an influence upon the Vietnamese legal system. This
leads to distinctive characteristics of the precedent system in Vietnam, including an offi-
cial precedent system, a low position of precedents as the source of law, regulatory char-
acteristics of the precedent system, a theoretical basis for precedents, a centralized crea-
tion process, mandatory effect, and cancellation of precedents. This section explains the
characteristics of socialist precedents and compares them with precedents in Common
Law, Civil Law jurisdictions, and “guiding cases” in China.
Socialist Precedent System in Vietnam
Over the past three decades, the Vietnamese legal system has become complex
and adaptive to the changing domestic socio-economic and international context. More
specifically, the Vietnamese legal system maintains highlighted points that reflect the na-
25
ture of a socialist legal system. It is also sensitive to external factors, such as domestic
socio-economic changes and international relations dynamics, which allow the formation
of new legal elements, including the development of precedents. Nevertheless, Marxist
legal positivism, “socialist legality,” and “democratic centralism” remain core elements
that shape the overall legal system in general and the precedent system in particular. The
dominant influence of Marxist positivism determines two institutional characteristics of
the socialist precedent system in Vietnam. Firstly, it is the formal recognition: the whole
precedent system is recognized and created officially through the enactment of statutory
laws. Therefore, despite the lack of a constitutional role, the formal system of socialist
precedents was formed and implemented in Vietnam through a number of laws. The Law
on Organization of People’s Courts 2014, a constitutional law, empowers the supreme
court to develop precedents. Moreover, other important laws provide for their application.
For demonstration, Article 6 of the Civil Code 2015 stipulates that in cases where an is-
sue rises under the scope of civil law which is neither provided for by law nor agreed up-
on by the parties nor applied by practices, the analogy of law shall apply. Article 45 of
Civil Procedure Code 2015 also states the principles of resolving civil cases “when the
law does not provide for such cases” and that in such cases, “precedents shall be studied
and applied.” Other legal documents, such as Commercial Law 2005, Maritime Code
2015, Law on Transfer Instruments 2005, and Law on Insurance 2005, also allow for the
application of precedents.
Marxist legal positivism also shapes the second characteristic of Socialist Law the
lower position of precedents as the source of law in the socialist legal system. Legislation
is still the primary source of law. This is the reason why the Supreme Court carefully
notes in the Decision on Precedent Project that: “The use of precedents is only supple-
mentary and must follow normative legal documents.” In addition, due to a lower posi-
tion, precedents must be supported by a number of relevant provisions in written laws.
This explains why referring to “related legal provisions” is essential in a precedent.
In addition to Marxist positivism, the concept of “socialist legality” continues to
be the basis of Vietnamese law. While it has been officially removed from the latest con-
stitution, and has become less attractive in a legal context, it has shaped the legal system
and mindset in Vietnam for decades and cannot be easily removed from legal and mental
structure. Regardless of its official weakening state, the “spirit” of socialist legality re-
mains. A consequence is the dominance of acts, regulations, and decrees in the decentral-
ized legal system in Vietnam. This shapes the defining characteristic of the socialist prec-
edent system. In addition to the recognition in acts of law, the socialist precedent system
is systematically governed by the Supreme Court. Resolution 03 in 2015, which states the
form as prescribed by the court, defines the meaning and principles of precedents, and
systematically regulates various aspects of the precedent system (selection, validity, ap-
plication, and termination) as mentioned above.
The influence of the concept of “democratic centralism” in the Vietnamese legal
system is clearer and stronger because it is established as a constitutional principle
against Western doctrines of separation of power. The principle of democratic centralism
26
was first introduced in Vietnam’s first socialist constitution issued in 1959, and con-
firmed in the subsequent constitutions, and the current 2013 version. This principle
shapes the external relationship between the courts and other state agencies as well as the
internal relationship within the court. Regarding external relations, the Supreme Court is
the subordinate of the legislative body. It must report annually to the legislative body. It
has no official authority to interpret the constitution and laws, since this authority is given
to the SCNA. The Supreme Court also has no authority to consider and evaluate the con-
stitutionality, as this activity is monitored by the legislature. “Democratic centralism” al-
so shapes the internal structure of the court. The typical structure of the socialist court
system is highly concentrated: local courts are subordinates of the Supreme Court. The
Supreme Court has the right to closely monitor judicial activities of other courts, to assess
overall performance of trial activities of other courts, to enforce the consistent application
of law in judicial activities, and to manage the organization of people’s courts.
“Democratic centralism” shapes the following characteristics of socialist prece-
dents in Vietnam. To begin with, it determines the rationale for the socialist precedent
system. The precedent system acts as a central instrument for the Supreme Court to man-
age the activities of local courts to improve the quality of their judgments, which raises
serious concerns about the number of cases being unfairly tried by local courts. “Demo-
cratic centralism” also determines the centralized formation of precedents. The official
mechanism for selecting, reviewing, and approving the guidelines and precedents clearly
illustrates this feature. The mechanism allows a large number of subjects to propose prec-
edents and open discussions, which reflect the “democratic” aspect of the principle. But
after such “democratic” discussions, the decision making is centralized: only the supreme
court has the authority to decide and issue a precedent. Another feature of the socialist
precedent system, as defined by democratic centralism, is the “guiding” application of
precedents. As a superior organization in relation to local courts, which serve as subordi-
nate organizations, the Supreme Court “directs” lower courts across the country on how
to apply the precedents that it has enacted. Local courts are also encouraged to seek guid-
ance from the Supreme Court on how to apply precedents. A related feature is the manda-
tory effect of precedents. The principle of democratic centralism requires centralized ac-
tions, i.e., subordinates must comply with the decisions of their superiors. In the socialist
judicial system, this means that lower courts must comply with the Supreme Court’s de-
cisions. In addition, the requirement to apply precedents is authoritative, as lower courts
“must study and accept” such precedents. But, as a “democratic” element, the system of-
ficially allows lower courts to not apply a precedent if there is an appropriate interpreta-
tion.
Finally, the principle of democratic freedom determines the mandatory abandon-
ment of socialist precedents, i.e., precedents may be terminated by an act, a regulation, or
a decree. Democratic freedom shapes the organizational relationship with non-court enti-
ties. Accordingly, the courts are subordinate to the legislative body in the socialist consti-
tutional order. For “democracy” aspect, affiliated agencies such as courts, are allowed to
make their owned decisions to deal with their affairs. However, for the “centralism” as-
27
pect, the courts are directly under the legislative body, so the consequence is that prece-
dents are only complementary and subordinate to laws of legislative origin. Moreover,
under the centralized “democratic” constitution, the courts are subordinates of the execu-
tive body or government. As a result, case law may be required to be terminated by regu-
lations and decrees of the government.
Vietnamese Precedents vs. Common Law Precedents
A formal precedent system does not exist in the laws of the United States and
United Kingdom. In the United States, precedent plays a central role in the legal system,
but it is not mentioned in the constitution and has no constitutional status. The legitimacy
of the precedent system is based upon unwritten rules that are valid by the appropriate
harmonization of acceptance and justice, as argued by Richard H. Jr. Fallon.19 The U.K.
precedent system is not different in this regard; there is no written law that governs the
use and reference of precedents. Moreover, it is a constitutional convention based on de-
cisions of a higher court of appeal that are normative and binding upon lower courts – a
long-established tradition for reasons of peace, equality, predictability, and judicial effec-
tiveness.
Socialist precedents were introduced by transnational ideas on precedents, includ-
ing English-American precedents, and thus shared some similar ideas. For demonstration,
like Common Law precedents, socialist precedents were introduced by the idea that the
previous judicial decisions should be binding upon subsequent decisions with similar
facts to ensure a fair treatment for citizens. The similarities in this idea are due to the in-
fluence by the diffusion of the idea of English-American law into Vietnam.
Vietnamese precedents are distinguished from English-American ones in a number
of factors. Firstly, unlike Common Law states, Vietnam does not have a well-established
legal tradition (although there are a number of legacies); thus, when the demand for prec-
edents emerges, it must issue acts and regulations to govern the formation and operation
of the precedent system of case law in a systematic manner. As explained, this is rein-
forced by socialist legality. Secondly, according to socialist experience, only the Supreme
Court may have the authority to issue precedents. Therefore, unlike Common Law prece-
dents, which are created through the use thereof in debate, Vietnamese socialist prece-
dents are formed by a centralized process. Thirdly, socialist precedents, unlike English-
American ones, are not a main source of law but only an additional source of legislation.
Fourth, socialist precedents are enforceable but not because of the doctrine of stare deci-
sis but because of the mandatory authority by the Supreme Court legal instrument. These
differences stem from the fact that the socialist precedent system and the English-
American precedent system are reinforced by different legal principles and run by differ-
ent legal institutions.
Vietnamese Precedents vs. Civil Law Precedents
[19] Fallon Jr, R. H. (2001). Stare decisis and the Constitution: an essay on constitutional methodology. NYUL
Rev., 76, 570, 572
28
Vietnamese precedents share some elements with continental precedents. Like
continental precedents, precedents in Vietnam were also introduced in order to apply the
laws consistently and uniformly, to interpret the general and ambiguous rules of practical
laws, and to serve as a secondary source of law in addition to written laws. These similar-
ities are due to the influence by the diffusion of ideas on Civil Law precedents in Vi-
etnam and the sharing of common characteristics between Socialist Law and Civil Law,
especially regarding the focus on written laws.
However, socialist precedents are fundamentally different from continental ones.
Socialist Law is strengthened by “democratic centralism” (“tap trung dan chu”) – a fun-
damentally distinctive and normative commitment from the division of power accepted
by many Civil Law states. Consequently, the unification of the law must be directed,
guided, and controlled in a unified manner by the Supreme Court, which in turn is under
the control of the communist party, to ensure the party’s policies as expressed in laws
will be implemented consistently. The centralized institutional arrangement also led to
another difference between socialist case precedents and Civil Law precedents: unlike
Civil Law, socialist courts are not allowed to develop constitutional precedents because
of a centralized arrangement to prevent socialist courts from considering the constitution-
ality of a legislation. Moreover, Civil Law precedents are not formulated by a formal pro-
cess like Socialist Law. In addition, unlike socialist precedents, which are binding upon
the compulsory jurisdiction of the Supreme Court, Civil Law precedents often serve “per-
suasive authority,” which is consolidated by the doctrine of jurisprudence constante, alt-
hough they may be de facto mandatory. These differences are because Socialist Law and
Civil Law precedents are reinforced by different legal principles and different institu-
tions.
Vietnamese Precedents vs. Guiding Cases of China
China, another socialist country, has developed a system of “guiding cases” that
shares some features in common with Vietnam’s socialist precedent system, but there is
also a significant difference between two systems.
The system of guiding cases in China shares the characteristics with Vietnam’s
precedent system. This is because of the fact that the two countries share the same social-
ist legal system. Most notably, China’s guiding cases and Vietnam’s precedents are se-
lected, reviewed and approved through a similar formal process. Like the story of Vi-
etnam, China’s guiding cases are shaped by democratic centralism. As a consequence,
while local courts, legal scholars, lawyers, and others may propose guiding cases, the
highest court upholds the rights to select, approve, and issue guiding cases. In addition,
because the courts are directly under the legislature, such guiding cases may not replace
the legislation. Supreme Court Judge Tao Kaiyuan commented in November 2016 in an
intellectual property context that the development of China’s guiding case system is not
intended to form a new source of law but to seek a broader consensus in the industry, to
refine the legislation and to provide better laws for society.
29
Although China’s guiding case system and the Vietnam’s precedent system share
common socialist characteristics, their relationship is not outstanding. China’s guiding
case system was formally established before Vietnam’s precedent system: 2010 vs. 2015.
In its precedent development project, the Supreme Court of Vietnam does not have any
reference to China’s experience. In the same way, China’s experience of guiding cases is
almost unmentioned in academic studies on precedents in Vietnam. The absence of this
interaction can be explained by at least two factors. Firstly, well-established and success-
ful lessons create a lot of motivation for subsequent learning, and as mentioned above,
this explains why Vietnam is looking for legal experiences from Western developed
countries. Secondly, Vietnamese jurists, due to their background from foreign legal edu-
cation, are more familiar with the legal experience of Western states and developed coun-
tries than with China’s legal experience.
Therefore, the interference characteristics of the two systems seem to be due to the
nature of natural transformation of Socialist Law. Socialist Law in China and Vietnam
has changed to meet the complexities of society caused by socio-economic changes. In
addition to other changes, complex social relations and civil disputes cannot be complete-
ly solved by general, legal regulatory requirements that require judicial development,
such as the development of guiding cases and precedents.
Although there are interference characteristics, a significant difference is that Chi-
na’s guiding cases are not the same as precedents in Vietnam. The name of the system is
significant, too. According to Deng Jinting, the Chinese Supreme Court “deliberately us-
es the phrase” guiding case (zhidaoxing 指导 性) “instead of “panli” as a warning that
guiding cases are different from Common Law and Civil Law precedents. Vietnam, by
using a different approach, borrows a public foreign term of “precedent” to name its sys-
tem. The difference is not just a matter of terminology; it is a matter of content as well.
China’s system only requires lower courts to “refer” to guiding cases, while Vietnam’s
system requires lower courts “to study and apply” precedents. Therefore, Vietnam’s
precedents are officially binding, while China’s guiding cases only have persuasive au-
thority. Moreover, while Chinese courts are only advised to refer to guiding cases in a
court case, the Vietnamese courts are required to study all details of precedents, including
the trial proceedings and juridical facts.
Existing Problems
Precedents in Vietnam still have some theoretical and legal problems.
Firstly, the interpretation of the law through precedents contradicts the previous
constitutional right to interpret the law. The constitution grants exclusive rights to inter-
pret the law to the SCNA. However, the precedent system allows judicial authorities to
interpret the law, which is a considerable deviation from the original constitutional con-
tent. In fact, this derives from the nature of judicial power. In order to apply the law to
resolve disputes, the courts cannot contend with the need to interpret the law. Therefore,
the Vietnamese courts always exercise the right to interpret the law in practice, but their
30
interpretation only affects the specific cases they are dealing with. The case law system
allows judicial interpretation of the law to effectively enforce general rules for subse-
quent trials. This significantly extends the judicial power of legal interpretation.
Secondly, the creation of new legal regulations represents a strong expansion of
judicial power. The previous Constitution 1992 states that the National Assembly is the
agency with exclusively legislative power. This provision is revised in the Constitution
2013, which only states that the National Assembly would exercise legislative power.
This means that the National Assembly is not the exclusive legislative agency. This pro-
vides a constitutional basis for law making outside the sphere of the National Assembly.
This constitutional change may be a response to the legislative body authorized by law
enforcement agencies. The constitution does not allow the judicial agencies to enact laws,
but the system and the enforcement of law may direct the active constitutional power of
the judicial agencies to make laws.
Vietnam’s precedents serve as new, controversial legal property. The original
precedent system, its activities, and issued precedents were always associated with con-
flicting arguments among the legal community and citizens. On the one hand, the factors
of debate evaluate the idea of the application of precedents in Vietnam, the issuance of
resolutions, the promulgation of precedents, and the identification of factors that are con-
ducive to the operation of the precedent system, is the legal framework for the selection
of precedents, support by the Supreme Court leaders, and compliance with trial experi-
ence of local courts. Some are optimistic that today’s “precedent” is a new legal term that
is officially accepted in Vietnam’s legal system, which is conducive to its practical appli-
cation, to the assessment of practical laws, and to the development of a new legal culture.
On the other hand, the current system formed by Resolution 03 is still in its early
days, controversial and revisable. Lawyers have seriously discussed nullification and
made several proposals for amendments to this resolution. For example, there have been
some comments that since a precedent contains a system of legal content, it is unclear
which factors have binding authority. The Supreme Court also reviews the implementa-
tion of the system and may amend Resolution 03 to further clarify the validity of prece-
dents, the criteria for selecting precedents, and the contents of the precedents. Some have
identified the factors that prevent the selection and application of precedents. A concern
is that it will be difficult to choose quality standards due to the labyrinth of Vietnam’s le-
gal system in general. Another concern is the lack of highly qualified people to choose
quality precedents. Some believe that Vietnamese judges are not adequately trained to
determine basic legal details with similar characteristics, which may lead to different un-
derstandings of the same or a similar legal situation, and the consequence is the different
application of the same precedent.
The controversial nature of Vietnam’s precedent system is understandable. Since it
appears as a new form, it must interact with existing forms that have been established. In
terms of prospective, it can adapt its content to domestic legal and institutional reforms
and be exogenous to socio-economic development and transnational cooperation. This
31
system, therefore, is still developing, incomplete, and subject to change. One of those de-
velopments, which is the content of this study, is a question of the ability to cite foreign
law as a persuasive source in the process of adjudicating international disputes in Vi-
etnam.
CONCLUSION
The precedents of Vietnam are still limited compared to those in other contries
where such type of law is widely applied. While there are some problems existing in legal
interpretation and in the contents of Resolution 03, the formation and development of
precedents in Vietnam legal system strongly mark the opened-mindedness and the efforts
of the lawmakers in Vietnam to improve the effectiveness of laws. Beside the need of
improvement, the possibility of referring to foreign precedents in Vietnam may be con-
siderred as one direction of development for Vietnamese precedents in the future.
REFERENCES
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32
[11]
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[15] Politburo of the Communist Party of Vietnam, Resolution 03/2015.
[16] Council of Justices of the Supreme People’s Court (2015), Resolution 03/2015 on
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