Case law – legal technique applied in Vietnam for a long time

Choosing to use judgments that have been heard by judges and judges for each specific case as a precedent for future trials with similar circumstances is a common legal technique applied. widely used in most of the advanced countries in the world; In our country alone, there was a history of more than 500 years ago, under the absolute monarchy.

In an effort to improve our country’s legal system, the building of case law has been agreed by experts and a resolution has been issued for implementation.
The Hong Duc Code and the Gia Long Code are two typical codes of the Vietnamese monarchy.
Talking about ancient history, today we can only confirm that until the 15th century, the first Le Dynasty. Because before that, through the invasion of the North (from 1400 to 1427), the Ming invaders seized all bibliographic materials and legal documents of our country and brought them to Kim Lang (China) or destroyed them in the North. So far, we can’t find it again, so we just want to review the history from the Le Dynasty – Later Le (1428-1789) to the Nguyen Dynasty (1802-1945). It was the independent and private period of the State of Dai Viet – Vietnam under the centralized monarchy, with the rule of law, culminating in the Ministry of National Court and Criminal Law (commonly known as the Hong Duc Code). was born in the 15th century and Hoang Viet’s law (often called Gia Long Code) was born in the early 19th century. These two laws were in effect continuously in our country from the 15th century to the middle of the 20th century and after that, until now, there is still a profound influence in the customs of our people.

In the legislative technique of the ancients, in addition to official laws, the state also issued “rules” or “orders” to guide the way of adjudication when the law was incomplete and did not stipulate all aspects. details or regulations already but not clear. The Vietnamese monarchies thoroughly applied this approach.

  1. Case precedent in the law of the Le Dynasty

Under the Le Dynasty, under the reign of Hong Duc, King Le Thanh Tong (1460-1497) took advantage of the technique of “making the law complete and easy to understand” by summarizing the judgments that were heard by the judges. Then, choose as a typical precedent to follow in the future to handle similar cases. Specifically, in the Hong Duc Code , Articles 396 and 397 on the division of incense estates are essentially summaries of judgments, copied into the code.
Hong Duc Thien Chinh Thu is a treasure trove of valuable documents on both aspects of case law and law of the Le dynasty. In which, most of the judgments that became old precedents were related to land. In addition, there are precedents related to many other areas, especially marriage and family. The law on “marriage to death” (Paragraph 101) states: “If the parents are in debt and run away, the children must pay; If children and grandchildren run away with debt, their parents and grandparents are not responsible.” The law on “no husband but pregnant” (Paragraph 262), Poinsettias Luong The Vinh (1441-1496) submitted the judgment approved by the king as a rule: “The pregnant woman’s side has evidence; and the south husband because there is no evidence, he can only punish the wife for the crime of treason”…[1]
Using the previous judgment as a precedent to help set the way for the later cases to be adjudicated. is a good legislative technique, easy to read, easy to apply in practice. These judgments are judged by judges who apply their legal knowledge to real-life situations, thereby providing a general approach to handling.

  1. Case law in the Nguyen Dynasty’s law

At the beginning of the nineteenth century in our country, the Gia Long Code (Hoang Viet’s laws) was promulgated in 1815 and took effect in 1818. This code consists of 22 volumes with 398 articles. In terms of form and content, they are imitated by the Qing Dynasty law in China, so the two sets of laws are similar from naming to content arrangement. The Qing Dynasty Code of China called it “Dai Thanh Law “, the Nguyen Code of Vietnam called it “Hoang Viet Law “, because each article in both of them included the content of the law and the law of the Vietnamese people. rate. Professor Vu Van Mau, Dean of Saigon University of Law, has an analysis of the case precedents recorded in Dai Thanh’s law and Hoang Viet’s law as follows: “The original precedents are judgments that have been tried in practice and are considered. is important should be added in the code [2] ; “At the top of the page, there are footnotes in small print indicating the judgments related to those laws” [3] ; “After each law and the official commentary, there are more rules related to that law”…[4].
Sharing the same opinion, Assoc. Prof. Dr. Nguyen Van Nhat, Director of the Institute of History (2009), also analyzed: “Hoang Viet’s laws were modeled and compiled in the manner of Dai Thanh’s (Chinese) laws from the provisions (laws), regulations (judgments actually heard), to the glossary (explanation) and printing. Therefore, the code of the Nguyen Dynasty (…) is called the Hoang Viet Law, as well as the law of the Qing Dynasty called the Dai Thanh Law [5]. In addition, under the Nguyen Dynasty, the Kham Dictionary. The Law of the Southern Conference also has a copy of the case law .
In general discussing case law and ancient law, Professor Vu Van Mau commented: “In terms of case law, in our ancient law, there are no special magazines or books to publish or annotate. judgment; therefore, in ancient law, judgments could not constitute a precedent in accordance with the professional sense we now give to this term. However, the old adjudication cases are not so unimportant. It is clear that typical judgments are often studied and submitted to the king for legal approval. Thus, although there is no precedent, but thanks to the control of the central machinery in charge of the case, this precedent has also constituted an additional source for the law.

  1. Under the French colonial rule and the Republic of Vietnam regime:

The legal system of our country is influenced by the West (continental Europe), specifically the French legal system. Among them, case law is an important source of law. Case precedent was born to explain the law clearly and to fill in the gaps and shortcomings due to the inadequate implementation of the current law. Case precedents are drawn up by the court industry through judgments that have been tried in practice, serving as a precedent for future trials to refer to and apply accordingly. In other words, case precedents are created by the courts while adjudicating cases, if there is an obscure, unclear or contradictory law ; or there is no provision in the law that the judge cannot, in principle, disapprove. This duty of “trial” was clearly stated by all three Civil Codes of the French colonial period: “A judge who argues that because the law is not prescribed or is obscure or insufficient to evade trial, may be prosecuted. about the undecided” (Article 5 of the Northern Civil Code, of the Central Civil Code, Article 4 of the Simplified Civil Law applied in Cochinchina). It was also modeled on Article 4 of the French Civil Code at that time.
It should also be noted: the judgments of the judges at all levels are only valid for trial; in other words, such judgments must not be of a legal nature, forcing other courts to act in an absolute manner. Judgments of all levels of courts will gradually become precedents when they are considered by the courts as a common line, summarized by the Supreme Court and disseminated to the whole country through public journals. Publication of legal documents such as Indochina Judiciary Journal (Journal judiciaire de l’Indochine), Legal Journal, Legal Journal, etc.
In the South under the regime of the Republic of Vietnam (from 1954-1975), in general, the legal system also follows the European school (of France), in addition to practical law, there are case precedents to supplement other schools. The law is unclear and incomplete. For example, the precedent on “value of documents made under Japanese rule” instructs that: “Judicial documents made under Japanese rule are still valid if nothing is contrary to current law” ( Judgment of the Supreme Court of Saigon on June 28, 1951, published in Legal Review 1952, page 52, quoted from the book Recueil de jurisprudence, Tran Dai Kham, Khai Tri Bookstore, Sai Gon, 1969, page 15).
When you want to cite a judgment to prove your deduction, you must include the name of the court, the date of the judgment, the journal in which the sentence was published (which year, which part, which page).

  1. Conclusion
    The above problems are the reality that happened decades ago to more than half a millennium. That is the situation of European case law that has been tested and implemented in Vietnam; that also originated from the traditional legal background of the Vietnamese nation. Professor Vu Van Mau, a leading legal researcher in the South, through current legal scientific works as well. affirmed that he is the leader of the whole country, having taught law students: “Studying law without reading case precedents is like a person who only plays paper flowers and does not know the color of real flowers” [7]. As such, we can urgently build our case law on the basis of practical experience at home and abroad, past and present.

[1] Institute for the Study of Han Nom, Some legal and normative documents of Vietnam from the 15th to 18th centuries, Volume I, rule 8, Social Science Publishing House, 2006, page 475 .

[2] Vu Van Mau, Civil Law, Publication of the Ministry of National Education, Saigon, 1957, p.239.

[3] Vu Van Mau, Phone number, p. 239.

[4] Vu Van Mau, Phone number, p. 240.

[5] Institute of History, Ancient Law of Vietnam – National Court of Criminal Law and Hoang Viet Law, Publishing House. Education in Vietnam, Hanoi, 2009, p. ten.

[6] Vu Van Mau, Preface to the book Hong Duc Thien Chinh Thu, School of Law, Saigon University, Nam Ha An Quan, Saigon, 1959, p. XIII – XIV.

[7] Vu Van Mau, Lecture Law, Law Faculty of Saigon University, 1975, pp.135.

Source: According to tapchitoaan.com

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Post Author: Nguyen Thi Tam