1. In feudal times (before 1864)

The Vietnamese legal system before 1864 was typical of a Far East legal systemFootnote ²³ in that the king held the supreme position and possessed all powers: legislative, executive, and judicial.Footnote ²⁴ Codes – written laws enacted by the kings – were supposed to be constant and unchangeable. As a result, when there were societal changes, the laws from another era became obsolete and no longer suitable,Footnote ²⁵ so there was a demand to supplement existing laws. This paved the way for judicial law-making. One of the methods used by kings to solve the problem was that, whenever a judicial decision that could be applied for similar situations in the future was found, the king would make it into a general rule under the enacted code.Footnote ²⁶ This method, however, did not create precedents due to two main reasons: (1) judges had to follow the rules in the codes and could not overstep them; (2) they also could not approach all the cases and make commentaries on them.Footnote ²⁷ In the codes, every article prescribed specific crimes and sanctions; every judge had to refer to the articles, and could not increase or decrease the sanctions.Footnote ²⁸

2. In colonial times (1864–1954)

The French legal system was introduced to Vietnam along with the French colonial invasion,Footnote ²⁹ by which the Vietnamese legal system underwent a comprehensive change that made civil law a very important branch, and also imported new characteristics from Western theories.Footnote ³⁰ The colonists, with the aim of easing governance, then promulgated three different legal systems in three separate regions, with three different civil codes which were generally similar because they were all based on French jurisprudence,Footnote ³¹ particularly influenced by the Napoleonic Code 1804.

Consequently, the French model of precedent also found its way into Vietnam. The reception and use of precedent in this period could be attributed to two main reasons. First of all, civil law in Vietnam at this time was not unified.Footnote ³² Although all civil codes were codified on the basis of French law, they were not suitable to Vietnamese legal traditions,Footnote ³³ and did not provide enough solutions for the diversity of legal cases. Hence, judges had to seek remedies by interpreting and supplementing legislation with principle judgments (arrêts de principe).Footnote ³⁴ Moreover, as Vietnam became a French colony, the Vietnamese tribunal system became a part of the French judiciary, with the Court of Cassation in Paris as the Supreme Court, and Vietnamese judges were undoubtedly influenced by prestigious French judges.Footnote ³⁵ This probably formed a trend of applying judicial precedent in Vietnam during the colonial period.

In this period, judgments were collected and published. For example, ‘Jurisprudence générale de la cour de Cassation, du Conseil d'Etat et des Cours, Tribunaux et Conseils du Contentieux de l'Indochine: En matières civile, commerciale, criminelle, administrative et indigène concernant les possessions Françaises d'Extrême-Orient’ by Grabiel Michael, ‘Recueil de jurisprudence en matière indigène, années 1880-1885: Lois, décrets et arrêtés’, ‘Répertoire méthodique et alphabétique de législation de doctrine et de jurisprudence indigène’ by F Lasserre, and ‘Recueil de jurisprudence en matière civile à l'usage des juridictions indigènes du Tonkin: Arrêts rendus par la deuxième Chambre de la Cour d'Appel de Hanoi du 1er Juillet 1931 au 1er Juillet 1936’. There was also some research on precedent, such as two parts of ‘Doctrine et jurisprudence en matière civile indigène’ by Durrwell, which analyzes Annam's Civil Law and indigenous judicial trials through cases in 1898 and 1899.Footnote ³⁶ With the strong influence of French legal theory, precedent in Vietnam during this period had the same role as in France, ie as a supplementary source of law alongside codes and statutes.Footnote ³⁷

3. In the regimes of South Vietnam (1954–1975)

The republican regimes in South Vietnam maintained the civil law system. Prior to 1972, these regimes still retained the codes enacted by the French.Footnote ³⁸ Because of the similarities in the structure of law, the use of precedent was crucial to the judges and to the legal system as a supplementary source. Precedent had two main roles: to interpret the law and to prepare for legal reforms.Footnote ³⁹

Precedent in these regimes had non-binding authority, as it did in France, and its application was the result of the control mechanism of the Court of Appeal and the Court of Cassation.Footnote ⁴⁰ The Court of Appeal was responsible for direct control in that it had to consider both points of fact (points de fait) and points of law (points de droit). Meanwhile, indirect control was exercised by the Court of Cassation; when there was an appeal against a final judgment, the Court of Cassation would not reconsider all points, but only points of law. Correspondingly, the Court of Cassation would control not only the application of law, but also the uniformity of the interpretation of the law in the system.Footnote ⁴¹ Unfortunately, this meaningful tradition of applying precedent was lost with the collapse of the Republic of Vietnam in 1975.

4. In the socialism-building period in North Vietnam (1954–1986)

The term ‘precedent’ was popularly used during this period.Footnote ⁴² Its popular usage was due to a number of reasons. The most important reason was the abolition of all colonial laws while not having promulgated enough replacements. In 1959, the Supreme People's Court (SPC) promulgated Instruction No 772/TATC, which suspended the application of feudal and imperial laws. It marked an end to all colonial laws, including judicial precedents that supported them. However, at that time, Vietnam had not built or enacted new provisions to replace the abolished ones. Therefore, the courts faced a huge challenge in settling disputes brought before them. Thus, they had to resort to precedent for guidance. On 11 November 1959, Joint Circular No 92-TC of the Ministry of Justice was issued to reinstate the use of precedent, and the SPC demonstrated clearly the role of courts of appeal in the management of lower courts through the use of precedents.Footnote ⁴³

The Judicial Journal (Tạp chí Tòa án), now Vietnamese Judiciary Journal (Tạp chí Tòa án Nhân dân), in a section titled ‘Judicial Terms’ in issue No 03/1964 said: ‘Precedent includes rules made by the courts in the application of law to judge a particular case that progressively formed by same adjudicative understandings and manners in some legal points, applying law the same way in many cases.’Footnote ⁴⁴ In 1965, this journal included the section ‘Commentary on precedent’, but then changed it to ‘Commentary on cases’ without any explanation. From then on, instead of the term precedent, they used the term legislation.Footnote ⁴⁵ Precedent has since then gradually faded and fell into disuse.

1. Doi Moi and the demands for legal reform

In the early years of building socialism, the Vietnamese legal system was built with the Soviet system as its initial model, characterized by the prominence of public law over private law and the tutelary role attributed to public authority in social life, even to the extent of refusing to divide between public and private law.Footnote ⁴⁶ This was due to the nature of the state and the characteristics of a centrally planned economy in which social relationships were regulated by the state.Footnote ⁴⁷

The ineffectiveness of the planned economy put Vietnam in a state of socio-economic crisis, which led to the idea of a transition to a more market-based economy. However, the socialist legal system completely lacked essential laws for a market economy.Footnote ⁴⁸ While the field of public law could still be regulated by a socialist type of law, in order to meet the need to adjust the new social relations derived by the market economy in the field of private law such as civil law, labour law, and trade law, legal reform recognizing the position of private law was necessary.

In 1986, at its Sixth National Congress, the Communist Party of Vietnam endorsed a series of reforming initiatives known as Doi Moi or ‘Renovation’. The Doi Moi process provoked many changes, firstly for the national economic system and then for the legal system. It created a disorderliness resulting from the simultaneous reception of three streams of thoughts and legal doctrines.Footnote ⁴⁹ To keep pace with the changes in the economy and to move forward from rule by law to the rule of law for a mixed-market principle, Vietnam's government started a strong codification campaign to rapidly create legal ‘corridors’ for emerging social relationships.Footnote ⁵⁰ The codification was energetically implemented with a series of private laws: the 1987 Law on Foreign Investment in Vietnam, the 1990 Law on Company, the 1990 Enterprise Law, and the 1995 Civil Code of the Socialist Republic of Vietnam, to name but a few.Footnote ⁵¹ However, this process was not an easy one.Footnote ⁵² These acts have been rapidly and constantly amended; according to an unofficial statistic, the average lifespan of each form of these laws has been only approximately ten years.Footnote ⁵³

The constant amendments, though having some advantages as they were responsive to change, produced many shortcomings and challenges in building a stable, predictable, and enforceable legal system. The borrowing of legal theories and practices from a variety of sources and jurisdictionsFootnote ⁵⁴ in a short period of time, when law-making skills had not been highly developed and mastered,Footnote ⁵⁵ and when legislators lacked experienceFootnote ⁵⁶ and were still unfamiliar with new legal theories,Footnote ⁵⁷ resulted in a problem whereby the resulting laws were not synchronous, coherent, and logical.Footnote ⁵⁸ In addition, the incomplete reform exposed the weaknesses of a legal system that depended only on enacted law and excluded other legal sources. These weaknesses were mainly: (1) the incoherence and conflict between written laws or their obscurity in meaning, leading to many difficulties in implementation; (2) legislation could not provide solutions for all the cases; and (3) legislation quickly became outdated.Footnote ⁵⁹ In order to solve the first problem, judicial interpretation of the law is needed, while the second and third disadvantages can be addressed by creativity and flexibility in the application of the law.Footnote ⁶⁰ In this context, therefore, precedent re-emerged as one of the most suitable solutions to solve these problems effectively, aiding judges and arbitrators in settling disputes more fairly and, especially, making the legal system more stable, predictable, and enforceable.

2. The recognition of precedent in modern Vietnam

Despite its necessity, the recognition of precedent in Vietnam took place very late, after the legal reform. This was because within a socialist legal system, judges do not have the function and power to interpret law.Footnote ⁶¹ This view of socialist states seems similar to that of nineteenth century Europe, but it is based on a different theoretical ground from the strict separation of powers. In a socialist legal system, instead of being free to do all that the law does not prohibit, subjects may only do what the law allows. As a result, statutes are regarded as the official source of law, and the only source of law that governs social life, which has to be promulgated and interpreted by the legislature, while judges are obliged to merely apply the law. Furthermore, the high demand for discipline within the socialist legal system does not allow the creation and development of law in the form of judicial discretion.Footnote ⁶² In case of difficulty in solving a specific case, especially if the law is silent, the lower court must ask the superior court for an opinion; if the competent higher court does not determine the legal grounds in the statute to resolve the matter, the court shall have the right (and the obligation) to refuse to adjudicate.Footnote ⁶³ This point of view is definitely contradictory with the core principle of private law that individuals and legal entities may do all that the law does not prohibit, which would not be ensured if judges can still refuse to adjudicate.

For example, China, a country with a socialist political system and Communist ideology, and a country within the civil law tradition, also encounters many difficulties in establishing the manner of transplanting a model of precedent into the judicial process. The dominant Stalinist conception of law in China asserts the fundamental power of the National People's Congress Standing Committee of China to interpret the law.Footnote ⁶⁴ Instead of recognizing precedent as a source of law, China has chosen alternative solutions, namely ‘Judicial Interpretation’ and the ‘Guiding Cases System’,Footnote ⁶⁵ in order for the Supreme People's Court of China to interpret laws and provisions, and also to constitute guiding solutions for lower courts when they have troubles in various issues.Footnote ⁶⁶ But in practice, the impact of these alternatives remains fairly limited.Footnote ⁶⁷

In Vietnam, rather than addressing the main issue, some solutions have been launched to help fill loopholes and lacunae in the law, such as the summaries of judicial experience of the SPC – a distorted kind of precedentFootnote ⁶⁸ to guide the resolution of cases in the lower courts. In such forms, like resolutions, dispatches, reports, conclusions, official letters, and so on, they provided practical and more appropriate solutions to ensure unity in judicial activities and brought non-binding norms to the judges.Footnote ⁶⁹ However, this approach is unlikely to be effective in improving trials. It only partially solved the problem, and could not compensate for the defect of the enacted laws. It also did not provide reasoning such as legal analysis and comments for each specific caseFootnote ⁷⁰ to justify their solutions, which made it difficult to apply these to actual practice and to future cases. Above all, they were not precedent in its true sense. Although some of these forms were binding on the courts, especially the Chief Justice's Circulars and the resolutions of the Council of Justices of the Supreme People's Court, they were essentially delegated legislation.

Hence, after a long period of refusing to acknowledge the role of precedents, in 2005 the Politburo of the Communist Party finally announced Resolution No 48-NQ/TW and Resolution No 49-NQ/TW, which define the direction for the development of precedents in Vietnamese law.Footnote ⁷¹ In these resolutions, precedent is considered as a necessary solution to carry out the mission of overcoming the defects of written laws, creating stability, and securing transparency for the judgments.Footnote ⁷² The agency that was assigned to develop precedent was the SPC, a body with experienced, competent, and prestigious judges.

However, it took nearly ten years for the SPC to put these policies into effect. The process of realization of these two resolutions began with Decision No 74/QD-TANDTC of 2012, approving the project ‘Developing precedent of the Supreme People's Court’ and preparing the first steps for the creation of case law. However, the true milestone on the recognition and application of precedent in Vietnam lies in the promulgation of the 2013 Constitution of the Socialist Republic of Vietnam (2013 Constitution) and the codification of the new 2015 Civil Code. The 2013 Constitution, on the one hand, reaffirms the constitution and law-making powers of the National Assembly in Article 69. On the other hand, it stipulates in Article 102 that the judiciary is entrusted with the judicial power to protect and uphold justice. This later proved to be crucial as it laid down a constitutional foundation for the endorsement and use of precedent by the courts. On this basis, a series of statutes was enacted endorsing the use of precedent in their applicable fields. While the 2014 Law on the Organization of People's Courts authorizes the Council of Justices of the Supreme People's Court to choose and promulgate precedent, the 2015 Civil Code was the first code that recognized precedent as a source of law, followed by the 2015 Code of Civil Procedure (2015 Civil Procedure Code), and the 2015 Law on Administrative Procedure.Footnote ⁷³ From this time on, precedent has officially been resurrected and become part of the national legal system, assuming its role as a source of law. But this is just the beginning of a much more complex and unsettled issue involving the role, nature, formality, and analysis of precedent in contemporary Vietnam. Issues have arisen due to the reception and combination of the elements concerning precedent from both civil and common law models. Resolution No 03/2015/NQ-HDTP (Resolution No 03),Footnote ⁷⁴ issued by the Council of Justices of the Supreme People's Court, is the document which demonstrates most clearly the hybrid nature and complexity of precedent in Vietnam today.

1. Precedent in general

Often, we face a certain problem and have to make a decision to resolve it. It would be reasonable in that situation to consider decisions made in the past in order to make decisions in similar circumstances in the present, especially when the prior decision seems right to us. As a result, we often regard the former decision as trustworthy guidance for the latter.

Precedents are commonly used in every human rational activity, and judicial activity is no exception. According to Neil Duxbury, ‘a precedent is a past event – in law, the event is nearly always a decision – which serves as a guide for present action’.Footnote ⁷⁹ Similarly, Neil MacCormick and Robert S Summers describe precedent as ‘prior decisions that function as models for later decisions’.Footnote ⁸⁰ Black's Law Dictionary gives a more precise definition: ‘precedent is an adjudged case or decision of a court of justice, considered as furnishing an example or authority for an identical or similar case afterward arising or a similar question of law’.Footnote ⁸¹ To a lesser extent, in civil law countries, precedent or jurisprudence is not considered as a source of law, having binding authority on the dispute settlement activities of the judges.Footnote ⁸² In general, not every judicial decision could create a precedent, but only those that contain within itself a principle, which can be followed by later similar cases.Footnote ⁸³

The idea of following precedents appears fairly early in legal history. It first appeared at the end of the sixteenth century in English courts,Footnote ⁸⁴ but only as a form of customary law.Footnote ⁸⁵ It was not until the late eighteenth and nineteenth centuries, with the rise of Bentham's positivism,Footnote ⁸⁶ the professionalization of judges’ positions, and improvements in the system of reporting prior decisions,Footnote ⁸⁷ that the concept of formally binding rules of precedent was established, and precedent thenceforth became the primary source of law in England.Footnote ⁸⁸ On the other hand, in nineteenth century Europe, the doctrine of separation of powers was so strictly applied that the role of judges was restricted to being ‘only the mouth that pronounces the words of the law’,Footnote ⁸⁹ which meant that judges were forbidden to create law, and there was no place for precedent.Footnote ⁹⁰ However, European jurists gradually recognized a lack of flexibility in the system; thus, a need for a system of ‘informal precedent law, where a sequence of analogous cases acquired persuasive force as a source of law’,Footnote ⁹¹ emerged. History has proven that the role of precedent is indispensable in any judicial system, which leads to the undeniable value of precedent in both common law and civil law legal systems, although each system has its own approach for the use of precedent.

2. Common law approach

Conventional wisdom has it that precedent has a very important role in the common law legal system, in which a large part of law derives from and is essentially based on judicial decisions. Within the context of the common law approach, precedent can be considered from a number of fundamental perspectives, including its role, authority, hierarchy, as well as interpretation technique.

Taking the role of precedent into consideration first, in the common law tradition, precedent is an essential source of law. Indeed, looking at the history of law in England, from the common law courts to the courts of Equity, it is undoubtedly true that laws were principally formed by judicial practice and decisions.Footnote ⁹² That is why the common law body of English law is often referred to as ‘case law’ or ‘judge-made law’.Footnote ⁹³ During much of the history of common law development, precedents were regarded as the primary source of law.

However, since legislation has been strongly developed and codified since the seventeenth centuryFootnote ⁹⁴ under the doctrine of the sovereignty of Parliament,Footnote ⁹⁵ the relationship between statutory law and case law has changed, with the result that the former is now superior to the latter. Accordingly, precedent cannot contradict or modify statutory law, whereas statutory law can modify or repeal precedent.Footnote ⁹⁶ This is not the case in the United States, where the US Supreme Court can sometimes overrule statutory precedents.Footnote ⁹⁷ However, it is noted that, compared to the evolution of Parliament, the growth and consolidation of the court system in England took place much earlier chronologically.Footnote ⁹⁸ Furthermore, in common law countries, statutory law is basically the codification of customary law,Footnote ⁹⁹ and English courts regard a statute as a declaration of the law.Footnote ¹⁰⁰ As such, precedent is no longer the primary source of law in modern-day common law systems, although it is still a very important source of law.

In addition to its role as a source of laws, precedent has both binding and persuasive authority. The binding authority of precedent in common law systems is based on the doctrine of stare decisis, which represents a constraint on judicial decisions, and the principle of distinction between ratio decidendi and obiter dicta, which decides which part of the case is binding, while other parts are non-binding or persuasive.Footnote ¹⁰¹

The doctrine of stare decisis came from the original Latin maxim, which is translated as ‘to stand by things decided and not disturb settled points’.Footnote ¹⁰² According to James Holland and Julian Webb, the stare decisis principle means that when a court makes a decision in a case, any court which is of equal or lower status to that court must follow that previous decision if the case before it is similar to the earlier case.Footnote ¹⁰³ Otherwise, not all precedents are binding, and the non-binding ones, which usually are decisions of coordinate courts or lower courts in the hierarchy, are said to be merely persuasive.Footnote ¹⁰⁴ It should also be noted that the decision referred to here is the whole reasoning process, not just the final decision itself.Footnote ¹⁰⁵ Thus, it is crucial for judges and parties in the proceedings to analyze this reasoning process, which leads to the distinction between ratio decidendi and obiter dicta in a case.

Neil Duxbury simply mentions ratio decidendi as the reason for deciding, and obiter dicta as ‘the tangential observations’, normally provided for by judges in the process of reaching the decision.Footnote ¹⁰⁶ He admits, however, that ‘speaking of the distinction is often much easier than making it’Footnote ¹⁰⁷ because it is not usually specified in the decision, but depends a lot on the legal reasoning of lawyers and judges. This is the reason why the doctrine of binding precedent sounds simple but is in fact very complicated.

Third, statutory precedent plays the main role in judges’ statutory interpretation discretion. Statutory interpretation is a process of interpreting statutes by the judges. With the rise of legislation, judges are required to interpret statutory law in order to apply the law to the case before them. In principle, in their role as statutory interpreters, judges have less discretion than they do as developers of case law.Footnote ¹⁰⁸ Judges are meant to constrain themselves in cases governed by statutory law and respect the decision of legislature; therefore, such cases are meant to resolve ambiguities in the text and enforce the legislative will.Footnote ¹⁰⁹ With the binding authority of precedent in general, the use of statutory precedent plays the main role in statutory interpretation.

Fourth, the authority of precedent depends very much on the hierarchy of the courts in a common law system. The court hierarchy is a fundamental principle of the doctrine of binding precedent. Besides the principle of ratio decidendi, a ‘clear-cut judicial hierarchy’ is one of the basic features of the doctrine of stare decisis: ‘at the apex of the judicial hierarchy there is one sole court that monitors all lower courts, and lower courts are bound by previous decisions of higher courts.’Footnote ¹¹⁰ The typical court hierarchy of England can be described as follows:

3. Civil law approach

Contrary to the common law, the basis of the civil law is legislation, with the codification of large areas of law as the distinctive feature of the system. The civil law approach is therefore very different from the common law approach in terms of precedent.

The most striking difference is the fact that precedent is not formally recognized as a source of law, but as a means of statutory interpretation. In civil law systems, there is great respect for legislation as the basic source of law.Footnote ¹¹² Unlike statutes in the common law tradition, which consist of particular rules for specific legal situations,Footnote ¹¹³ codes in the civil law tradition are rather ‘a body of general principles carefully arranged and closely integrated’.Footnote ¹¹⁴ As a result, the purpose of the codes is to cover the entire subject matter, not in detail but in principle, and to be comprehensive enough to provide solutions for any litigation or legal problem in the future.

This has led to the view that, in such a legal system, the only task left for judges is to decide which rule they have to apply to the facts of a case, and then apply it to adjudicate the case.Footnote ¹¹⁵ The fact is that this task is not easy, although it is true that the first thing they do, after determining the legal relationship in a case, is to look for the rule in written law that regulates this legal relationship. They will find only one rule, but cases can be extremely diverse from one to another, or the rule may be so ambiguous that it cannot be merely applied, or there may even be gaps and shortcomings inherent in the rule itself. Therefore, the next step is interpreting that rule, moving from the general concepts of the rule to the particular facts of the case by applying deductive reasoning. In the case of silence or insufficiency in the written law, the interpretation by courts can be considered as making law.Footnote ¹¹⁶ This interpretation can be consulted in the future to solve similar cases; in this manner, the utilization of prior decisions is mainly on points of interpretation of the written text.Footnote ¹¹⁷

As a result of the role of precedent in civil law countries, precedent is said to have persuasive authority only, not binding authority. In civil law systems, there is no place for the doctrine of stare decisis, but the French doctrine of jurisprudence constante influences the entire civil law tradition.Footnote ¹¹⁸ Under this doctrine, the court may refer to a judgment in the past only if there is sufficient consistency over time, which means the prior decisions have been reiterated enough to form a line of precedents that has persuasive authority. The higher the level of consistency, the greater the persuasive force of the precedent.Footnote ¹¹⁹ This doctrine is the result of French jurists’ efforts to enhance the judiciary's role in the era of legis centrism (legislative supremacy), as a way to promote certainty, consistency, and stability in the legal system, which codifications had failed to achieve, while still adhering to the principle of separation of powers.Footnote ¹²⁰ In the French Civil Code, Article 5 even forbids judges to create law by making ‘general and regulatory provisions’,Footnote ¹²¹ because only the legislature has the power to make such provisions and to codify them. A court may not render a judgment in the nature of a general rule.Footnote ¹²² Accordingly, in these systems, courts are not bound to follow previous judicial decisions; each case must be decided on the primary authority of the legislation.Footnote ¹²³ But following the doctrine of jurisprudence constante, when a certain question of law has been consistently decided in the same way by an appreciable number of cases, that way of reasoning can gain persuasive authority.

This leads to the third characteristic of precedent in the civil law tradition, which is that a judge's discretion on statutory interpretation is limited to the text. In civil law systems, there were times when judges’ discretion in statutory interpretation was prohibited.Footnote ¹²⁴ This period did not last long because the court, not the legislature, was the body that applied the statute in specific cases. As a result, the interpretive discretion was gradually transferred to the judges in order to help them fulfil their task of applying laws in a consistent, stable, and harmonious way. Surprisingly, despite these systems having a strong codification tradition, there are no provisions regarding methods of interpretation of law to be found. It is up to judges to find ways to interpret statutes.Footnote ¹²⁵ In practice, they employ a variety of methods of interpretation, including reasonableness, equity, morality, and social needs, to adapt an old rule to modern life.Footnote ¹²⁶ Contrary to common law judges’ approach to statutory interpretation, civil law judges regard their obligation as furthering the purpose of the statute, without surpassing the statutory languageFootnote ¹²⁷ and openly freeing themselves from the text.Footnote ¹²⁸ Another difference is that, due to precedent's non-binding authority, the judges’ statutory interpretation is limited to the decisions concerning specific instances.Footnote ¹²⁹ However, if other judges agree with the interpretation, then the method of interpretation in one case can be repeated in subsequent cases. Therefore, the persuasive force can become stronger, giving the interpretation an affirmation for being accurate.

Finally, appellate review in civil law courts is aimed at ensuring the stability of law in precedent. In civil law courts, judicial decisions, in general, are not binding. Decisions of higher courts can be overturned by lower courts; only administrative and constitutional court decisions on laws and regulations are binding on all.Footnote ¹³⁰ Civil law courts can be considered more independent of each other than their common law counterparts, but the key feature to ensure their uniformity lies in the fundamental principle of ‘double degree of jurisdiction’: any person whose case has already been tried in the first instance may, if he does not agree with the decision, request that the case be reconsidered.Footnote ¹³¹ This right to demand reconsideration is called the right to appeal, a fundamental safeguard of justice in civil law systems.Footnote ¹³²

Some of the highest courts that exercise appellate jurisdiction are the SPC in Vietnam, the Cour de Cassation in France, and the Tribunal Supremo in Spain, whose major function is to take into account all the questions of law, and maintain the stability and uniformity of law in all the jurisdictions.Footnote ¹³³ These are also the only courts that generate precedents, as all precedents are based on questions of law.

In short, although precedents in civil law systems do not have binding effect but only persuasive authority, it is the court hierarchy that makes precedent an indispensable feature of the stability and uniformity of law in adjudication.

1. On the formality and the structure of precedent

The most important difference between the model of precedent in Vietnam and that of other countries is that Vietnamese precedent, naturally, does not consist of judgments of courts (or more precisely, the legal reasonings advanced by the judges who tried the case), but instead comprises opinions generated and proposed by the Council of Justices of the Supreme People's Court upon having read particular court decisions, especially the cassation decisions of the SPC, which the Council deems to be well-articulated, well-reasoned, and good models for other courts to follow.Footnote ¹³⁴ There is no similar model in either common law countries or civil law countries. In the common law, a precedent is a judgment by itself. In civil law countries, a precedent is not a judgment, but the reasoning whose authority to other judges derives from a consistent reiteration over time, and not by a selection process of a third party.

To illustrate, the details of Precedent No 7 in Vietnam are as follows:

One of the reasons that the lawmakers of Vietnam put forward to explain the existence of this process is the low quality of both the judgments and the professional ability of judges.Footnote ¹³⁵ In fact, the Vietnamese government acknowledged the weakness of the judges in trials which fail to meet the requirements of the current situation.Footnote ¹³⁶ According to statistics of the SPC, for ten years from 2000 to 2010, the rate of reversed, overturned, or quashed first-instance judgments in civil and family cases increased from 82.6 per cent to 90.7 per cent, as the number of first instance judgments increased remarkably.Footnote ¹³⁷ This partly reflects the fact that the quality of the first instance decisions, and hence of the judges, does not meet the expectations of society. Much effort has been expended in order to increase the quality of judgments, such as providing detailed guidance on the structure of a decision and the way to write a decision. The issue of the structure of a judgment has been defined by the SPC in guiding documents.Footnote ¹³⁸ According to that guidance, there must be a section named ‘Reasoning’ in all decisions. In that section, judges will have to provide their considerations, arguments, and, most importantly, the interpretation and application of a particular rule to the facts in the case – in other words, the legal reasoning.Footnote ¹³⁹ While all current judgments have the required section, many still fail to provide legal reasoning, even in the judgments selected to become precedent; in the first ten of these, true arguments are found only in Precedents No 02 and No 04.Footnote ¹⁴⁰

As can be seen, the current Vietnamese precedent structure is not well-established. It thus leads to a number of problems, two of which are: (1) there is no uniformity in the established precedent; and (2) it is hard to determine the content which can be invoked in the application.Footnote ¹⁴¹ When comparing the first six established precedents and the four later ones, there is a clear difference between their structures: the later precedents are supplemented with a section on ‘Position of the content of the precedent’, and also separate ‘legal situations’ and ‘legal solutions’ subsections within the section ‘General content of the precedent’.Footnote ¹⁴² The first six do not have these sections. The cause of this difference is the fact that the early judgments lack arguments, and this makes it difficult to apply these precedents in similar cases arising in the future.

One of the most important differences in the model of precedent between the civil law and the common law tradition is legal reasoning. Whilst continental European jurists create general principles in written laws to adjudicate particular cases through deductive methods, the common law tradition prefers inductive methods, stemming from the same cases to reach a unified solution for judges in the trial process. Despite the difference, both traditions emphasize the role of arguments, or reasonings, of judges in their decisions, which are the most crucial parts of a precedent. Therefore, when the judicial decisions in Vietnam themselves do not contain adequate arguments, the precedents hardly have a strong influence to persuade lower judges to follow that path. This also results in the fact that judges can simply follow a solution derived from a precedent when applying a provision rather than relying on the rational reasonings, as is done with ‘guiding cases’ in China.Footnote ¹⁴³ As a result, in order to make new precedents understandable and applicable, specific legal reasoning and solutions must be clear and well-articulated; new sections with new requirements for the expression of legal reasoning have been added.

The absence of legal arguments also leads to the second problem of how to determine what values can be invoked. Current Vietnamese precedent structure has some commonality with English and American precedent in that, in these countries, judgments are edited, proofread, and published by professional organizations,Footnote ¹⁴⁴ often supplemented with additional parts with the purpose of making the case reports more accessible and convenient for reading, analysis, reference, and citation.Footnote ¹⁴⁵ However, what is different is that Vietnamese precedents include a section on ‘Content of Precedent’, which in fact is the legal reasoning that the Council of Justices of the Supreme People's Court develop from their reading of the judgment, providing the ratio decidendi for judges to apply in their future adjudication. This, however, creates a serious flaw for judges in future cases because it isolates ratio decidendi from its material facts, complicating the task of deciding whether the two cases at hand are similar for the ratio decidendi to apply. In other words, the ‘Content of the Precedent’ section is sometimes artificial. Moreover, it is a big mistake when the contents of the judgments do not include arguments and considerations of judges from lower courts because if there are only reasonings and decisions of the SPC, and others from the lower court are ignored, precedents will lack strength, and this will reduce their potential for future application.Footnote ¹⁴⁶

In the common law tradition, a precedent contains two parts: (1) ratio decidendi, arguments or reasons which lead to decision-making, and (2) obiter dicta, which includes expandable hypotheses of the case.Footnote ¹⁴⁷ Or in the precedent model of the civil law system, characterized by France, due to merely having persuasive authority, the arguments of cassation (Motif de censure/ motif de cassation) of the Court of Cassation is extremely important. In Vietnam, in analyzing Precedent No 02, Do Van Dai points out two factors that are binding in the Vietnamese case law, including implicit and obvious elements.Footnote ¹⁴⁸ However, as mentioned above, except for precedents No 02 and No 04, the other cases do not contain the judges’ reasoning, or they do but these are very weak.

2. On the nature of precedent

The question of the nature of precedent also highlights a difference in the common law tradition and the civil law tradition, which has influenced Vietnam's legal innovations with regard to precedent. Resolution No 03, the 2015 Civil Code, the 2014 Law on Organization of People's Courts, and other laws answered an important question about the nature of precedent in Vietnam. According to these laws, precedent is one source of law, ranked after enacted law, customary law, analogy of law, and basic legal principles of law in the order of application, but this pronouncement has since been strongly rejected by many scholars, especially those who are influenced by the civil law tradition, creating heated debate among the scholarly community about its true role and nature.Footnote ¹⁴⁹

As a socialist country that upholds socialist legality and prefers written law, Vietnam has had no tradition of applying precedent since 1975. However, in practice Vietnam accepts and develops a derivative version of the stare decisis principle through a different form, requiring lower court judges to respect and adhere to established judicial decisions of the SPC via the medium of the ‘Resolutions of the Council of Justices’.Footnote ¹⁵⁰ This is because of the dominant legal doctrine in the Vietnamese legal system. Based on the doctrine of Marxism in law, Vietnamese legal science has no concept known as complementary sources, or sources interprétatives in French; there are only formal sources.Footnote ¹⁵¹ Hence, when lawyers and judges are not familiar with this theory,Footnote ¹⁵² the application of precedent as a supplementary source will not be appropriate. Before the issuance of Resolution No 03, there were many legal experts who presented solutions to the application of case law in Vietnam. Do Van Dai claimed that Vietnam needs to study the precedent model of Switzerland when recognizing case law as a legal source in the national system of law.Footnote ¹⁵³ This model would raise the judges’ responsibility to develop specific regulations for adjudicating particular cases.Footnote ¹⁵⁴

However, this argument seems to be unreasonable. First, there has been a change in perception of the concept of legal source in Vietnam to ensure the rule of law and international integration.Footnote ¹⁵⁵ There are recommendations to develop the theory about supplementary sources in Vietnam and to accept the existence of precedent with a persuasive value.Footnote ¹⁵⁶ Besides, although there are some similarities in these two legal systems, the transplanting of Swiss law into Vietnam is not appropriate due to differences between the jurisdiction of the judicial systems of the two countries, especially regarding the Swiss Civil Code in 1907, which gave judges the power to make laws as legislators.Footnote ¹⁵⁷

Contrary to the above-mentioned argument, according to a Japanese scholar, as a special form of judgment, precedent should only be an instrument to interpret, seek, and affirm the comprehension of rules in enacted laws to adjudicate particular circumstances, rather than being considered as one source of law, even though it is declared as such in the 2015 Civil Code and the 2015 Civil Procedure Code.Footnote ¹⁵⁸ He also argues that the competence of the Vietnamese judiciary is not so decentralized that the law could be created, and that this matter is more closely related to the constitution and to the issues of the professional competence and capacity of judges in Vietnam.Footnote ¹⁵⁹

The recognition of precedent as a legal source also opens up questions on the authority and power of judges in legal interpretation. This recognition implies the right of the judges in Vietnam to interpret the laws.Footnote ¹⁶⁰ The 2013 Constitution allocates the function of legal interpretation to the Standing Committee of the National Assembly,Footnote ¹⁶¹ so many experts claim that recognizing precedent will create a contradiction with the current constitution.Footnote ¹⁶² However, the problem of legal interpretation in Vietnam is quite complex. Granting the right of interpretation to the Standing Committee of the National Assembly is one of the features of the Soviet legal system which is still rooted in Vietnam.Footnote ¹⁶³ In addition to the official interpretation of the Standing Committee of the National Assembly, the 2014 Law on the Organization of the National Assembly of the Socialist Republic of Vietnam recognizes the unofficial interpretation of other executive and judicial bodies.Footnote ¹⁶⁴ In fact, any law without informal interpretation cannot be applied in reality in Vietnam today.Footnote ¹⁶⁵ However, the informal interpretation of judicial activity is not based on any principle, which leads to the arbitrariness of judges.Footnote ¹⁶⁶

Other scholars point to South Korea, a country with a civil law tradition. In South Korea, the nature of precedent is still being discussed.Footnote ¹⁶⁷ The arguments there are based on two theories: affirmation and negation. The theory of affirmation holds that case law should be considered as a source of law on the grounds that it has the function of formulating new provisions, overcoming the shortcomings of written laws, and having a strong influence on the lower courts in trials.Footnote ¹⁶⁸ On the other hand, the theory of negation denies the role of creating new regulations of precedent, considering it only as applying the law to a particular case so that it shall not itself be regarded as law.Footnote ¹⁶⁹ And the Court Organization Act 2014 of South Korea accepts the theory of negation, giving precedent merely persuasive authority.Footnote ¹⁷⁰

3. On the role and the authority of precedent

It is still arduous to determine the role of precedent in court trials in Vietnam. Only Article 2 of Resolution No 03 mentions the role of case law through the criteria of selecting judgments, but it does not explicitly point out the roles that precedent can play.Footnote ¹⁷¹ From the provisions of this document, it is possible to speculate that precedent has three main roles: (1) to explain the laws when they are unclear or can be understood in different ways; (2) to create new provisions in situations which the law does not regulate; and (3) to guide the application of written laws in specific cases. Along with these three roles, precedent also has binding authority, requiring judges to follow the published judicial decisions of the SPC.Footnote ¹⁷² This is the result of the influence of legal experts and scholars supporting the transplant of the common law doctrine into the Vietnamese legal system, such as Do Thi Mai Hanh, who advocated this based on the theories of Alan Watson and Otto Kahn-Freund on legal transplants.Footnote ¹⁷³ These roles of precedent are not completely unfamiliar to the legal systems of other countries throughout the world, but in Vietnam, they are capable of causing disturbances and conflict in the order of the sources of law, especially in relation to the 2015 Civil Code.

The uncertainty of current regulations on precedent raises serious questions about, and may hinder, its supplementary role. One of the new points of the 2015 Civil Code is to recognize that precedent and equity are two sources of law.Footnote ¹⁷⁴ When there are difficulties in determining the hierarchy of sources, judges can resort to precedent and equity for the protection of justice.Footnote ¹⁷⁵ It is then possible for the judgment to create a new legal solution that the enacted laws did not provide. However, unlike in Western countries, where the judiciary is an independent branch of government, in Vietnam the judicial system is considered a derivative body of the National Assembly, which does not give the judges the power to act creatively, even in interpreting legal rules. This difference lies essentially in the principle that the ‘state power is unified and delegated to state agencies which coordinate with and control one another in the exercise of the legislative, executive, and judicial powers’,Footnote ¹⁷⁶ a combination of the principle of democratic centralism and the legal principle of the socialist system, and a weak version of the theory of separation of powers of Montesquieu.Footnote ¹⁷⁷

While it is obvious that the courts in general, and precedent in particular, cannot violate or infringe upon the legislative power of the Assembly, they can create delegated legislation. The verb ‘delegate’ means to pass power, responsibility, or authority to another person or body, and ‘delegated legislation’ means laws made by a person or body to whom the Assembly has delegated law-making power.Footnote ¹⁷⁸ When legislators passed an Act that accepted the role of precedent, it opened up the possibility that the judicial branch may set new provisions by creating and following precedent. This means precedent as a source of law was approved by the National Assembly when it delegated the legislative power to the SPC to make new rules.

According to the 2015 Civil Code, judges use precedents when there are no other prior sources of law.Footnote ¹⁷⁹ However, when precedent is created to interpret and guide the application of the rules to adjudicate future cases, it is inevitable that in those cases, precedent will prevail over other sources. This is due to the obligation on the judges to study and apply precedent to the trial in order to ensure uniform application of the law; judges will have to give priority to precedents over other sources such as customary law, application of analogy of law, and basic legal principles. It means, in effect, that precedent is second only to legislation. For example, Precedent No 09 reasons that the fine for the breach of contract does not generate interest. However, this decision is criticized as being contradictory to the principle of good faith in the 2015 Civil Code. Nonetheless, because of the requirement of the application of precedent, it is likely that judges will have no choice but to follow this line of adjudication.Footnote ¹⁸⁰

All things considered, the perception about the role and authority of precedent in Vietnam today is really diverse and contradictory, and rather insufficient. In many journals and researches, scholars still disagree on this subject. Some authors claim that any judicial decision, to become a case law, must be applied in previous subsequent cases, and then through time, it will take effect.Footnote ¹⁸¹ These common misconceptions prove that the role and authority of precedent in Vietnam remain controversial.

4. On the establishment, modification, and abolition of precedent

The process of publicizing precedents in Vietnam, as set out in Resolution No 03,Footnote ¹⁸² is a coordinated effort of many agenciesFootnote ¹⁸³ through quite complex phases.Footnote ¹⁸⁴ According to this Resolution, in order to have authority as a precedent, a judgment must meet three criteria: (1) contain arguments that resolve legal issues not stated in written law or stated in unclear regulations; (2) reach standards of both content and form; and (3) have clear and persuasive arguments. Based on these, the selection process of judgments has four specific phases: proposing precedents, seeking opinions on the proposed precedents, selecting and recognising the precedents, and publishing the precedents.Footnote ¹⁸⁵ Again, this process of selection in Vietnam does not exist in any other country. However, when considering social conditions in the application of precedent in Vietnam, in principle, this model has three advantages.

First, judgments carefully selected by judicial experts and experienced judges of the SPC will fully meet the criteria stated above, while other judgments may fail to do so.Footnote ¹⁸⁶ Second, the central role of the SPC in this process is to maintain the consistency and unification of precedents. There is a similarity to the French precedent model, in which the persuasive value of a case is only recognized by the Court of Cassation to let it become precedent, otherwise it has only guidance value.Footnote ¹⁸⁷ In Vietnam, the role of the SPC is even more important, because, as specified in the 2014 Law on Organization of the People's Court, one of the SPC's functions is to unify the trial system of the entire country.Footnote ¹⁸⁸ Third, this process is a means to quickly bring precedent into application in Vietnam. Continuing with the example of France, it could take a very long time for a judgment to become a precedent because the persuasive force of precedent can be gained only if there are several similar cases decided in that same way.Footnote ¹⁸⁹ The need for the use of precedents in Vietnam is very urgent, so this process will empower the judges more swiftly in the application of precedents.Footnote ¹⁹⁰

In order to enhance the use of precedents in various cases, the SPC of Vietnam has devoted its best efforts to improving the competence of lower court judges, through various ways. On the one hand, the SPC promulgated Resolution No 03 on the publicity of judgments and decisions on the web portal of the SPC. This was the first step in the process which improved access to important decisions, including crucial arguments which could become a precedent. On the other hand, the highest court of Vietnam has implemented Scheme No 230/TANDTC-TCCB on the organising of online training courses in 2018 for judges of lower courts.Footnote ¹⁹¹ These training courses have been organized through telecommunication means and have comprised seventeen contents spread over various legal issues that are obstacles to the trial process of lower courts. The efforts of the SPC have brought positive results. Up to July 2018, there have been at least forty-five decisions of lower courts applying the established precedents, with Precedent No 08/2016/AL being the most cited.Footnote ¹⁹²

However, this process is not an effective solution to improve the legal system and the judicial system in Vietnam due to its own nature, which could be explained with three reasons. First, the criteria set in the Resolution No 3 are unclear and ambiguous.Footnote ¹⁹³ Looking at those selected and published precedents as the most standardized judgments, many of them do not properly explain the legal issues,Footnote ¹⁹⁴ but merely summarize and guide the judicial activity instead.Footnote ¹⁹⁵ Second, the selected precedents do not reflect the diversity of the vast amount of court decisions; probably, they could even omit or ignore related judgments that are of high quality,Footnote ¹⁹⁶ which may lead to failure in delivering the goal of ‘like cases should be treated alike’.Footnote ¹⁹⁷ Consequently, the weakness of the judicial activityFootnote ¹⁹⁸ and the process that detaches precedent from the cassation review of the SPC by a heavily administrative procedureFootnote ¹⁹⁹ significantly diminish the true effectiveness of precedent.Footnote ²⁰⁰

Third, this process, in which judgments must go through too many phases to be recognized as precedents, makes them lose flexibility,Footnote ²⁰¹ and hinders the timely supply of written law. Precedent No 14/AL/2017 could be seen as a typical example of the rigidity of the process of editing judgments into precedents. This precedent was chosen with the aim of unifying the different interpretations of Articles 125 and 470 of the 2005 Civil Code, corresponding to Articles 120, 121, and 462 of the 2015 Civil Code, which accept the validity of conditional contracts for gifts of land-use rights for which conditions are not included in the main contract. On examining the arguments in the judgment, we found that this interpretation did not depend on the object of the contract and might also be applied more broadly to other contracts with moveable property. However, due to the edits, the precedent provides only a solution for limited cases concerning contracts for gifts of land-use rights, which loses its nature of flexibility.

Recognizing changes and then resisting precedent provides for change of the law in reasonable situations. However, determining what is reasonable is a matter worth discussing. There is no provision in the United Kingdom or the United States that regulates the binding force, changes, or dismissal of precedents.Footnote ²⁰² In the United States, precedent dismissal is possible in three instances: (1) when the precedent obstructs the development of the law, (2) when the principle that it contains is no longer applicable, and (3) when the argument is no longer consistent with present values.Footnote ²⁰³ Unlike common law courts, the civil law courts can dismiss their own precedent without declaring it, due to precedents' non-binding or merely persuasive authority.Footnote ²⁰⁴ In Vietnam, there are two possible reasons for dismissing or replacing a precedent, namely: (1) a change of law that leads to conflict between precedent and written law, and (2) a change of situation that makes precedent no longer suitable.Footnote ²⁰⁵ This work continues under a three-phase process, in which the precedent is announced by the President of the SPC following the vote of the Council of Justices of the Supreme People's Court. Besides this process, Resolution No 03 does not have any provisions for cases where there are mistakes in precedent in terms of the analysis or conclusion of legal issues.Footnote ²⁰⁶ Thus, similar to the selection of judgments, this process limits the adaptability of precedent to changes in social life, especially in cases where developments create a need for rapid updates of the law.