On October 29, in Hanoi, the Supreme People’s Court (People’s Court) introduced Resolution 03/2015/NQ-HDTP of the Judicial Council of the Supreme People’s Court on the process of selecting, announcing and applying use case law. This Resolution takes effect from December 16, 2015. This is an important step in the judicial reform process and implementation of the 2013 Constitution and the 2014 Law on Organization of the People’s Courts. To have an overview of the case law, the Editorial Board For Justice would like to introduce The article analyzes from the perspective of legal science about case law in legal history and its application in Vietnam.
How to understand the case law?
From the perspective of legal science, it has been recognized and implemented by many countries around the world. Case precedent is understood as judgments and decisions that have been issued before by the Court to deal with specific facts in reality. These judgments and judgments are then recorded in case law journals, case reports, etc., which is an important basis for the judgment, which becomes a template and a basis. The basis for the court to use in the trial to make a judgment in cases with similar circumstances and issues later. The basic for a judgment or decision of the Court to become a precedent is that it must have a pattern, be re-appliable later, to serve as a basis for adjudicating cases where there is no legal regulation. adjusted or yes, but not suitable for practice.
The synthesis, promulgation, regulation of the standards of judgments and rulings that are allowed to be used as precedents in many countries around the world are associated with legislative activities, it is almost a process of making laws of the Court. according to specific and strict procedures from promulgating selection principles, selection process to recognition and practical application.
Thus, to understand in the simplest terms, case precedent is a judgment or decision that has been declared by the Court and then recorded and published by the Supreme Court or a competent agency according to precedent sources based on precedent. certain rules, henceforth called precedent. The following cases of similar nature can apply this case law for reference or even to make a judgment, having the same value as that provided for in any other existing legal documents.
How has precedent been applied in the legal system of countries around the world?
Case precedent is not too strange for countries that apply common legal systems in the world such as the common law system, the continental law system, etc.
For the legal system Civil Law, case law has a long history of formation and development. Originating from Emperor Severus’ rule of Rome from 193 to 211, it allowed judges to fill in gaps in the law with the custom and practice of adjudicating similar cases. Although the history of applying case law has had many ups and downs, the current Civil Law system is still an extremely important source of law application in these countries. René David, a French lawyer once observed: “Starting at the beginning of the twentieth century, the illusion of the validity of written law as a single source of law has gradually been eliminated.”
The law of the Federal Republic of Germany can be cited as a representative country of the Civil Law legal system. In the German Civil Code of 1900, provisions on contracts, compensation for damages etc. has been supported by a series of precedents, such as the provisions of Article 181 of the German Civil Code 1900. Even in Germany, compliance with precedent is not only the responsibility of the Court but also of the lawyers, Because of its wide application value, if not paying attention to the cases of high courts, lawyers may have to compensate clients for improper advice.
For the common law legal system. One of the basic points of the countries under this System is that case law is seen as one of the sources of mandatory applicable law, at least in court. In the United States, under the Common Law system, the lower federal courts and state courts are obligated to comply with the previous decisions of the federal supreme court but the decisions of the lower courts. Subordinate judgments on federal matters are not binding on other states but are still carefully considered and considered.
Although there are many differences in the use of case precedents of the two basic legal systems in the world mentioned above, in general, it can be concluded that the application of case precedents of many countries in the world is very difficult. popular, especially in developed countries, in which some laws consider it as a mandatory source of equal value as written law and are widely applied in court proceedings. In Vietnam, case law is still a story that needs to be discussed a lot.
Case law in Vietnamese legal history
This is not a completely new term in legal science or Vietnam’s legislature, the legal history of our country has but the provisions on case law, but only until Resolution 03/2015/NQ-HDTP, the the new regulations on case law are really given a new layer, more important and more applicable.
Before this time, the 2013 constitution and current legal documents of Vietnam such as the Law on Organization of the People’s Courts, the Code of Civil Procedures, Criminal Procedures, and the Law on Administrative Procedures… all recognized the original principle. Rule: In hearings, judges and jurors are independent and subject only to the law. Law here is understood as legal documents promulgated by the National Assembly, other legal documents guided by the Government and functional agencies, nah means written law. Thus, the adjudication and application of law to specific cases must be based on the enacted and valid laws, not on case law. But this does not mean that we do not acknowledge the existence of case law in legal life.
Our legal system is established according to the concept of the Socialist State, which originated in the Soviet Union. From an academic perspective, the Vietnamese legal system does not admit to belonging to the Civil Law or Common Law schools specifically, but is a socialist legal system, with the interference between many legal systems in the world. world, specially and harmoniously built in accordance with the particular characteristics of political institutions. Since 2004, the Supreme People’s Court (TANDTC) of our country has regularly selected and published the cassation decisions of the Judges’ Council of the People’s Court or the publicization of judgments on many mass media channels or the public media. in the judge’s handbook. The Supreme People’s Court also has annual summary documents guiding adjudication operations. However, the use of public judgments in current legal practice is for reference only in the process of researching and solving the case, not as a legal basis for the trial. The existence of the principle of “stare decisis” (the principle of obligatory compliance with case law) has never appeared in legal practice in Vietnam, which means that case precedent has always been a source for reference, not is a source to apply.
Resolution No. 49/NQ-TW on the Strategy for Judicial Reform to 2020 of the Politburo dated June 2, 2005 set out the purpose of building and gradually completing the operation of the People’s Court as “TANDTC” has the task of summarizing trial experience, guiding the uniform application of the law, developing case law, and conducting cassation and reopening trials. The use of the term precedent in Resolution 49/NQ-TW 2005 is a major change in policy. Then with Resolution 03/2015/NQ-HDTP on the process of selecting, publishing and applying case precedent is a big step forward in practical terms for the application of law in Vietnam.
Article 8 of Resolution 03/2015/NQ-HDTP clearly stipulates the principle of application of case precedent in trial
“1. Case precedents shall be studied and applied in trial after 45 days from the date of publication or recorded in the decision on precedent publication of the Chief Justice of the Supreme People’s Court.
Is it reasonable to use case law in trial practice in Vietnam at this time?
There are two opposing views on this issue. Many opponents of precedent say that our country’s law is more inclined to the Civil Law system, mainly written law, built according to a strict and specific process, if applied at this time, it will create therefore arbitrariness in adjudication, because the meaning of the word “similar” is always very vague and difficult to explain absolutely. The application of case law to the trial is completely inappropriate, and because the legal system is constantly changing and supplementing to suit reality, in each specific period, legal policies are not completely the same. Currently, our country should only follow the way that the judgments must be summed up and summed up daily, if there are problems, they should issue a guiding document and then raise it to law. Because even the Supreme People’s Court does not dare to confirm that its cassation and reopening judgments are completely correct, what should be based on to set a template for a judgment or decision. This should not be arbitrarily ambiguous.
The consensus view is that the promulgation of laws is increasingly lacking and there are many loopholes because the speed of social development is accelerated very quickly, the speeding up of legislative activities despite great efforts, still cannot keep up. . The law is set up to maintain social order, so why not recognize a legal practice that has been adopted by many progressive countries to partially solve those gaps, the purpose of using criminal justice? Regulation is also the purpose of the law, if you have seen its advantages, you need to boldly apply it to be able to effectively manage society.
To look at this issue realistically, the point of view does not apply case law because it can lead to arbitrary application because it is difficult to interpret the word “corresponding”. That means we always have to find perfection in the written law, from which to speculate if we encounter a case where the written law itself cannot be adjusted, a form of legal speculation and the principle of application of the law. similar law. But it should be understood that the law itself can never guarantee absolute accuracy or demand perfection because after all, in fact, perfection is only a relative concept. Written law or case law, after all, is the wisdom of a group of people, if it is not possible to handle all social relations arising from written law with certainty, it is necessary to acknowledge the existence of a written law. practice in adjudication. The most important change of the Vietnamese legal system in the current era of international integration is the effective reception of foreign legal elements. Applying case law to the trial not only means solving a specific case, but also the basis for handling similar cases in the future. It has the effect of creating equality in the trial of similar cases, helping to predict the outcome of disputes, saving the effort of judges, individuals, agencies and organizations. participate in litigation.
Reform, if necessary, is reasonable to serve the purpose of building a Vietnamese legal system in line with the development of a socialist-oriented market economy. Conventional and conservative thinking needs to be changed because society never stops to conform to the thoughts of any individual. The Supreme People’s Court issued Resolution 03/2015/NQ-HDTP admitting that the application of precedent to trial is a progressive step, but it is not the end because behind it is a long process. consider the selection, publication and application of case law appropriately and accurately so that this provision ensures the highest effectiveness in practice to bring benefits to society.
Source: According to tapchitoaan.com
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