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III. Anticipating the role of precedent as a source of law in Vietnam 50 years from now. Over the next 50 years, it is possible that the role of precedent as a source of law in Vietnam will continue to grow and expand. As the country continues to modernize and develop, there is likely to be a greater focus on improving transparency, accountability, and independence of the judiciary. This could involve creating a more comprehensive database of precedents, as well as developing a system of legal education and training for judges and lawyers that emphasizes the importance of precedents in the administration of justice. Additionally, as the use of technology continues to grow, it is possible that new tools and platforms will be developed to make the use of precedents more effective and more accessible to legal professionals.
I Affirming the statement “In Vietnam, precedents are applied to settle civil cases when there are no legal documents or other sources to regulate such cases” The reason for the appearance of the case precedent - When the relationship arises in dispute or the legal change is clear and prescribed by law, the Judge can apply the existing laws to make a judgment, the judgments in these cases not create precedent and are not considered precedents In case the relations arise in dispute or legal variables, although prescribed by law, are not clear, specific or not yet regulated by criminal and civil laws, etc…, require the judge to accept the case The case must consider in applying the law to the actual facts to solve it, so when going to trial, the Judge must find the answer to the legal problem posed in the case, which proves that the Judge created the law and it also means that the Judge's decision in this particular case has created a precedent for future cases that can be applied and implemented Definition of precedent -The concept of case law has been clearly defined, transparent and orthodoxly defined in Vietnamese legal documents: The concept of law has been clearly, transparently and orthodoxly defined in Vietnamese legal documents: “The arguments and decisions made by the judge in the legally effective judgment or decision of the Court The judgment on a specific task is selected by the Council of Judges of the Supreme People's Court and announced by the Chief Justice of the Supreme People's Court as a foundational project for the Courts to study and apply in adjudication" According to (Article Resolution 04/2019/NQ-HDTP) - In Vietnam, the legal system is based on the socialist legal principle, in which laws and legal documents are the basis for settling civil cases However, when there is no legal document or other source governing a civil case, case precedent shall be applied to settle that case - Textbook of State and Law Theory of Hanoi Law University states that: Case precedent is a form of law created by judges with exemplary judgments, bringing justice in society These judgments are considered as templates to be applied to similar cases in the future - From that, case precedent should be understood in a broad sense, which can be understood as follows: Case precedent is one of the important sources of the legal system, including judgments and decisions of the agency The judicial authority is officially recognized by the competent state agency, demonstrating objectivity and fairness, and is considered as a template for dealing with similar cases that occur later Summarizing - Thus, case precedent can be applied to settle civil cases when there is no legal document or other source governing that case - In practice, it can be seen that in order to be recognized as a model for reference and application when adjudicating in Vietnam, it must belong to one of the following documents: Summarized documents guiding professional adjudication of goods; year of the Supreme People's Court to temporarily remove obstacles in the adjudication work of subordinates This document can be a joint circular of the Supreme People's Court with relevant ministries and branches, or a resolution of the Supreme People's Court's Council of Judges - However, it should be noted that case precedent in Vietnam is not the entire judgment or decision of the court but only a "certain part" of the judgment, which is a legally effective decision of the court This "certain part" means the basis of a judgment, or underlying legal principle, of a case, and not a judge's opinion, or comment, which may not be binding on legal side II Assesssing the effectiveness of Vietnam's case precedent - The current Vietnamese case law system has been effective in guiding the Court in handling civil cases The use of precedent in the Vietnamese legal system is a tool to ensure the consistency and predictability of court decisions This has contributed to the stability and fairness of the legal system, and at the same time enhanced public confidence in the administration of justice However, the use of precedent in the Vietnamese legal system is not without its challenges The first challenge is the lack of comprehensive and up-to-date precedent collections This makes it difficult for practitioners and judges to access precedents in a timely manner, which can affect the consistency and predictability of court decisions - Another challenge is the limited scope of precedent in the Vietnamese legal system Case precedent in Vietnam is only applied to settle civil cases, does not have the same authority as laws and legal documents This means that they not have the same degree of impact on the development of the legal system and the resolution of civil cases as laws and legal documents - Case precedent has been recognized and applied in Vietnam in certain historical periods, but then it is not mentioned in any legal documents It was not until 2015 that case precedent was returned as an official source of law However, since case precedent is still relatively new in the thinking of a large number of Vietnamese law practitioners, confusion cannot be avoided in the process of selecting, publishing, apply and invoke case law Vietnam is a country under the civil law system, so legal documents are the basic and important source in regulating all activities of subjects in society, including state agencies in general and court proceedings in particular - Up to now, although "Vietnamese law provides for the legal basis for the operation" apply the Court's precedent clearly not only in Resolution 03/2015/NQ – HDTP, Resolution 04/2019/ NQ – HĐTP but also in the areas of substantive law and formal (procedural) law Specifically, Clause 2, Article 8, Resolution 04/2019/NQ-HĐTP stipulates: “When adjudicating, judges and jurors must study and apply case precedents to settle similar cases, ensuring that cases have legal circumstances and facts the same must be treated equally”1 However, the application of case law in Vietnam in general is still Do Thanh Trung “Activities of applying the charter to the court: Some shortcomings and directions for improvement” electronic people's court journal quite new and has not appeared much As of October 14, 2022, Vietnam has only 56 case precedents published to apply in Vietnam - The application of case precedents is still limited due to inadequacies in the provisions of Resolution 04/2019/NQ-HDTP: Resolution No 04/2019/NQ-HDTP also has provisions on the abolition of case precedents Specifically, Article stipulates that 02 cases of precedent are annulled, which is automatically annulled in case the precedent is no longer relevant due to a change in the law and the case is annulled by decision Decision of the Council of Judges of the Supreme People's Court - this is also the subject who has the right to decide to adopt precedents to apply The current problem is that Resolution No 04/2019/NQ-HDTP does not stipulate procedures for annulment of case precedents, thus setting the initiative for law-applicants to research and update provisions of the law from which to evaluate and analyze to see if that provision is recognized in the case law or not, creating a lack of consistency in the perception and application of precedent, leading to the same situation There are legal situations, but in some places, case precedents are applied (because the applicable subject has not updated the governing regulations), in some places, case precedents are not applied because there are already governing regulations Invoking and applying precedent now faces many difficulties and obstacles, in which it is difficult to determine whether the case being resolved is in a similar case to apply precedent or not due to the law on invoking , the application of precedent still has many problems - Finally, the use of precedent in the Vietnamese legal system is limited by the lack of judicial independence The judiciary in Vietnam is not yet fully independent, and the influence of the executive and legislative bodies on the judiciary can affect the application of case law in civil cases III Anticipating the role of precedent as a source of law in Vietnam 50 years from now - Over the next 50 years, it is possible that the role of precedent as a source of law in Vietnam will continue to grow and expand As the country continues to modernize and develop, there is likely to be a greater focus on improving transparency, accountability, and independence of the judiciary This could involve creating a more comprehensive database of precedents, as well as developing a system of legal education and training for judges and lawyers that emphasizes the importance of precedents in the administration of justice Additionally, as the use of technology continues to grow, it is possible that new tools and platforms will be developed to make the use of precedents more effective and more accessible to legal professionals - In summary, the use of precedent is an essential aspect of the Vietnamese legal system, and it is likely that its role will continue to grow and expand in the coming yearss However, it is important for governments and the legal community to address current challenges facing the system, such as lack of transparency and accountability, to ensure that judicial enforcement is consistent , predictable and transparent That way, Vietnam can build a stronger legal system that serves the needs of its people and promotes economic growth and development