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Locating Authority
UEL. 2021
Dr Hien Trinh

SOURCES OF LAW
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SOURCES OF LAW IN VIETNAM

• Legal normative document

• Legislation and subordinate legislation
• Precedent (case law)
• Custom (customary law)

Laws enacted by competent government authorities

• Legislatures by the National Assembly: Constitution, Law, Code,

Resolution
• Laws by other governmental authorities (also called regulations):
• Ordinance by the Standing Committee of National Assembly
• Decree by the Government
• Circular by the Ministry
•…

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Hierarchy of Legal normative documents: in brief

• Legislation
• Ordinance of the Permanent Committee of National Assembly
• Decision of the State President
• Decree of the Government
• Decision of Prime Minister
• Resolutions of the Justice Council of the Supreme Court
• Circulars of Ministers
• ...

Customary law

• Law consisting of customs that are accepted as a legal requirement

or obligatory rules of conduct; practices and beliefs that are so vital
and intrinsic a part of a social and economic system that they are
treated as if they are laws
(Black’s Law Dictionary, 9th edition)

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Customary law: some comparisons

• In very contrast with enacted laws:

• Develop through time
• No exact day it first come into full effect
• No author
• No verbal declaration

Case law

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Case law

• Legal rules made by judges, when they decide the case, where no constitution
and laws exist to resolve the dispute

Terms

• Case law (caselaw, case-law, common law, judge-made law)

• The law to be found in the collection of reported cases that form all or part of the body of
law within a given jurisdiction
• Court opinion (judicial opinion, case, decision)
• A court’s written statement explaining its decision in a given case
• Judgement
• Final determination of the rights and obligations of the parties in a case
• Ruling
• The outcome of a court’s decision either on some point of law or on the case as a hold
Black’s Law Dictionary 10th edition
• Precedent: Án lệ

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How can case law evolve?

• Rules of law may be created when:

• The court interpret the existing statutory law
• The court creates new law in the absence of statutory law
• Courts make an analogy between their case at hand with previous cases by
figuring out similarities and distinctions
• Some decisions are taken as normative for solving future disputes
• A solution for a legal dispute must be universally accepted to be a judge-made
rule of law
• What is (are) the difference(s) between a statutory and a judge-made rule of
law?

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Components of a court opinion in the USA

• Caption
• Parties, the court, date, citation
• Statement of facts
• Procedural facts
• Evidentiary facts
• Issues
• Law-centered
• Fact-centered
• Discussion of legal rules
• Court’s holding on each issue
• Court’s rationale for the holding

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caption

Body of opinion
begins

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Evidentiary facts

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Procedural facts

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Statement of facts

• Procedural facts
• What happened at the lower court(s)
• Evidentiary facts
• What happened/gave rise to the dispute before the court
• Distinguish
• Factual or background context
• Legally important facts
• Outcome determinative facts: without them, the court will not come up with
the decision
• Legally significant facts

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Issue 1: law-
centered
Issue 2: fact-
centered

Issue 3: fact-
centered

Court’s holding
for Issue 1
Court’s holding
for Issue 2

Court’s holding
for Issue 3

Court’s judgement

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Issues

• Legal questions answered to solve the dispute

• Law-centered issues:
• Meaning of a particular rule or rules
• Not dependent on the facts
• Ex: Does the customary usage prevail the parties’ understanding in their course of
dealing in interpreting a term in the contract?
• Fact-centered issues:
• How the rule applies to the dispute
• Ex: Did the plaintiff/appellee mitigate the loss?

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Legal rules
applied

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Argument of
the
defendant/ap
pellant

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Court’s
rationale for
Issue 1

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Rationale/Application

• How the court applies the rules to the facts of the case
• Legal reasoning
• Broad and general
• Narrow, involving specific facts
• Important as precedential value
• Which kind of reasoning is likely to set up a precedent? Broad or narrow?

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Court’s holdings

Judgement

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Holding and Judgement

• Holding
• Answer for the legal question raised at the issue
• Judgment/Disposition
• Outcome/Formal action as a result of the holding
• Appellate court
• Affirm the trial’s court decision
• Reverse the trial’s court decision

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• Rules of law governing the

dispute are discussed in depth
Common law • Figure out the ambiguity of
lessons statutory rules if any
• Statement of issues and holdings

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Vietnamese Court system

Cassation reviewing
Supreme
Court
3 High Courts for the North,
Center and South of Vietnam
Cassation reviewing Superior Central
Appelate court Court. Military Court

63 Provincial Courts
Court of
Appelate hearing Provincial Military
Court
First instance court Zones

710 District Courts Court of

District Court Military
First instance hearing Regions

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History of precedent: From Socialist Republic of

Vietnam

• Before 16 December 2015

• Supreme court’s resolusion
• Supreme court’s annual report
• Supreme court’s cassation decisions
• After 16 December 2015
• Precedent formally recognized as a source of law
• Resolution of the Supreme Court No. 04/2019/NQ-HĐTP on Process for
selecting, publishing and adopting precedent (Formerly Resolution No.
03/2015/NQ-HĐTP)

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Creation

• Not all court decisions recognized as precedent

• Court decisions selected, published and adopted to be precedent
• Formal and complicated procedure
• Criteria - Resolution No.04/2019/NQ-HĐTP Art. 2
• Being able to clarify ambiguous provision(s) of the law which have differing
interpretations, analyze and explain legal issues or events, and point out legal
principles and guidelines to be followed in a specific situation or equality to be
displayed in issues which lack specifying provisions of the law;
• Having normative value;
• Ensuring the consistency of law in adjudication.

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Precedent-creating procedure – Resolution

No.04/2019/NQ-HĐTP Art. 4-7

Published by an
Issue of the
Ratified by the Chief Judge of
Council of the Supreme
Consulting at Justice of the Court
the Precedent Supreme Court
Seeking Advisory Board
consultation
Court decisions •Supreme Court’s
proposed Website

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Authority – Resolution No.04/2019/NQ-HĐTP Art. 8

• Binding effect
• Courts must study and apply precedent, ensuring cases having
similar facts should be settled similarly
• Defeasible
• Courts should provide explanation when they decide not to
apply precedent

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Abolition of a precedent

• Automatically abolished due to a change in law

• Abolished under a formal procedure
• Inapproriate due to changing circumstances
• Original court decision is abolished or entirely amended

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Some figures

• 43 precedents from 2016 to March 2021

• 6 criminal cases
• 2 admininistrative cases
• 23 civil cases
• 2 marriage and family case
• 9 commercial cases
• 1 labour case

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Access to precedents and court decisions

• Court decisions
• https://congbobanan.toaan.gov.vn
• Precedents
• https://anle.toaan.gov.vn/webcenter/portal/anle/anle

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Components of a Vietnamese court opinion

• Caption
• The court and the court panel
• The parties and others
• Date and citation
• Contents of dispute (“Nội dung vụ án”, “Nhận thấy”)
• The parties’ statement of facts and opinions
• Summary of the trial court’s decision
• Rationale (“Hội đồng xét xử nhận định”, “Xét thấy”)
• Judgment (“Quyết định”)

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Components of a precedent report (công bố

án lệ)
• Number and name of a precedent
• Number, name of the court decision adopted to be a precedent
• Facts and solution(s) of a precedent (Khái quát nội dung án lệ)
• Related statutory rules
• Keywords of facts and solutions of a precedent
• Content of the original court decision
• Content(s) of a precedent (paragraph(s) in the original court decision selected,
usually in the rationale part) (Nội dung án lệ)

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In practice
• Courts applying “solution(s) of a precedent” (khái quát nội dung án lệ)

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Precedent 04/2016/AL
Background A person transfers marital property but his or her spouse does not
fact sign an agreement of transfer

Relating Law on Marriage and Family 1986

legal rules Effective at the time of the original court opinion (2010)
Consent of both husband and wife to transfer marital property
No requirement of consent formalities

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Precedent 04/2016/AL - Facts

Concerning the contract to sell and purchase a house and land dated 26 April 1996: The transfer had
taken place since 1996, and after the sale, Mr Tien and Mrs Ty paid the full purchase price, took the
house and land, fixed the house and had their relatives moving in. Meanwhile, Mr Ngu, Mrs Phan
and their family continued to live in the unsold and remaining land, next to Mr Tien and Mrs Ty’
house. According to Mr Ngu and Mrs Phan’s children, after the sale, Mr Ngu and Mrs Phan gave the
gold (value received for purchase price) to their children. Additionally, after transferring and leaving
the house to Mr Tien and Mrs Ty, on 26 April 1996, Mr Ngu wrote a “document of undertakings” to
ask for permission to stay at the sold house and land when he was building a house on the
remaining land. In fact, Mr Ngu and Mrs Phan stayed at the house of Mr Tien and Mrs Ty when
building their house. Therefore, it is sufficiently proven that Mrs Phan had known the house and
land transfer between Mr Ngu and the spouses Mr Tien and Mrs Ty, and Mrs Phan had agreed and
performed the contract; thus, her claim that she had not known of the transfer does not have merit.

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Precedent 04/2016/AL – Facts and solutions

of a precedent
When a house and land are common properties of a married couple,
and a husband or wife conclude a contract to transfer of the land and
house to a party without the signature of his/her spouse; if it can be
sufficiently proven that the transferor received full of the purchase
money, and his/her spouse who does not sign the contract
acknowledges and spends the money; the transferee takes control of,
manages and uses the house and land publicly and the spouse of the
transferor who does not sign the contract knows but does not have an
objection, the court shall hold that the spouse at hand has a consent
to transfer the land and house.

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Some remarks

1. Problem of formulating the rule of law

Reccomendations
• When a person transfers a house and land that are marital
property but her/his spouse does not sign the transfer
agreement, the latter is considered to have consent if she/he
knows or ought to know the transfer without objection and
the transferee pays the full purchase money.
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Some remarks (cont.)

2. Not complying with a current statute at the time of creation

Law on Marriage and Family 2014

• Effective at the time of Precedent 04/2016/AL

• Transfer of some marital property including real estate should be made under a consent in writing of the
spouses
• Consequence of transfer without writing consent: the spouse who does not agree in writing is entitled to
bring a lawsuit to declare the agreement void

Many courts applied Precedent 04/2016/AL without mentioning or discussing the Law
on Marriage and Family 2014

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Questions

What is (are) the difference(s) between a

statutory rule of law and a judge-made rule of
law?
Does case law exist in the Vietnamese legal
system?

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