Jurisprudence in Vietnam – Lexology
In many countries, when a court considers a case, it would be required to follow (or at least take into account) the rules or principles established by other (usually superior) courts in previous similar cases. Meanwhile, in Vietnam, judges adjudicated cases based on the application of legal principles and traditionally were not required to follow or review judicial precedents. However, since 2005, Vietnam has taken steps to recognize and apply judicial precedents with the aim of ensuring consistent application of the law in arbitration. For the first time, the new Civil Code and the Code of Civil Procedure, adopted in 205, oblige the courts to apply, among other things, case law to settle cases where there are no express legal provisions applicable2 . Several legal instruments have been issued to establish regulations regarding judicial precedents.
This article discusses Vietnam’s current regulations regarding announcing and enforcing judicial precedents.
II. Selection of judicial precedents
Under the People’s Courts Organization Law of 2054, the People’s Supreme Court has been instructed to select some relevant cassation decisions and other judgments which have entered into force, summarize them and develop them into judicial precedents that the courts can study and apply during trials3.
Under Resolution No. 04/2059/NQ-oDTP of June 58, 2059 of the Council of Judges of the Supreme People’s Court (“Resolution 04”), a judicial precedent is defined as meaning the arguments and decisions in a judgment or a decision having the force of law. of Courts which is selected and published by the Supreme People’s Court so that other courts can study and apply it when deciding subsequent cases. The criteria and process for selecting judicial precedents are set out in Resolution 04.
Accordingly, one of the most important criteria for selecting a judicial precedent is that it must be able to clarify ambiguous provisions of the law that have different interpretations, analyze and explain issues or events and to specify legal principles and guidelines. to be followed in a specific situation or equality to be applied in matters not governed by any provision of law.
Judgments proposed for selection as judicial precedents will be reviewed by the Judicial Precedents Advisory Board4 and then decided by majority at a meeting of the Supreme People’s Court Judges Council in the presence of at least ¾ of its members. Judicial precedents are published on the Supreme People’s Court website (https://anle.toaan.gov.vn/webcenter/portal/anle/home).
It is reported that as of 2056, 5.35 judgments were considered for selection as court precedents, but as of June 30, 2022, only .2 court precedents have been issued, of which only 50 are commercial cases. According to information available on the Supreme People’s Court website, another precedent is expected to be released soon.
III. Application of the precedent
Once a court precedent is issued, Resolution 04 requires judges and juries (if applicable) to study and apply the precedent to settle similar cases so that both cases with similar facts have the same settlement results. . If the precedent is not applied in a case involving similar facts, the court settling the case must provide explanations in the judgment.
However, according to article 4 of the code of civil procedure, it seems that the court can only apply case law to settle the case if there is no legal provision applicable to the case and the court cannot apply established customs or legal analogy to the case.
At this stage, the application of the case law by the courts in practice is very limited. According to the report of the Supreme People’s Court dated January 8, 2022, during the period between October 5, 2020 and September 30, 2025, out of 436,660 cases settled, the courts only applied the jurisprudence to about 200 cases5. It is also reported that as of 2056, court precedents only applied to about 5,200 cases. It is expected that more court precedents will be published in the near future and widely applied.
IV. Cancellation of previous
The precedents will be canceled if they are no longer appropriate due to changes in the laws or when the Council of Judges of the Supreme People’s Court decides the cancellation of the precedent under certain circumstances specified in the resolution 04.
If the Chief Justice of the Supreme People’s Court receives a proposal6 to set aside a judicial precedent, he must, within 30 days, hold a meeting of the Council of Judges of the Supreme People’s Court to consider the setting aside of the precedent. The Council of Judges of the Supreme People’s Court votes for annulment in the same manner as the selection of precedents (as noted above). However, so far no precedent has been set aside.