On 23 March 2015, the Supreme Court issued the Official Letter No. 53/TANDTC-KHXX to instruct Chief Judges of the Provincial Level People’s Court and equivalent Courts to collect effective judgments with a number of conditions and send to Supreme Court before 25 April 2015 so that the Supreme Court can prepare a set of precedent cases, which can then submitted to the Judges’ Council for approval.
This could be considered as a clear action from the Supreme Court to implement a policy that had been approved by the Politburo of Vietnamese Communist Party, first announced in 2005.
To be concise, although not formally introduced as a legislative document until present, a number of Judges have been using a kind of precedent when adjudicating cases. This is in the form of cassation judgments approved by the Judges’ Council of Supreme Court. Of course, not every cassation judgment is used to adjudicate any other similar cases, but when one Judge adjudicates a case, another Judge can make use of the legal analysis and arguments to apply to their case. This method however is not an official application of judicial precedent in Vietnamese Courts.
Judicial precedent in lawsuit adjudication has been a model to other foreign law systems, especially countries with a common law system, where legislative provisions are formed by the Judges themselves, or even in countries with civil law system, but where laws only provide legal framework and leave the adjudication to Judges.
As a member of WTO, Vietnam has been attempting to demonstrate greater transparency in general, with particular focus on its judiciary system. Consequently, the introduction of judicial precedent is a principle that Vietnam cannot ignore.
Along with the set of precedent cases, what we are also waiting for is the guidance on the application of the Official Letter (53/TANDCKHXX); hopefully to be announced together as a set.
By Vietnam Law Insight, LNT & Partners
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