Vietnam’s adherence to the civil law system provides a clearer, more stable, and transparent legal framework compared to countries under the common law system. However, this also poses some challenges when society faces disputes or issues without clearly defined methods of resolution in legal documents. So, in these cases, what provisions do litigation authorities rely on to resolve civil matters?
To address emerging social relations without precedent, the 2015 Civil Code, Law No. 91/2015/QH13 (“2015 Civil Code“), stipulates in Article 14(2) that courts must not refuse to resolve civil cases due to the absence of applicable legislation.
In such cases, the provisions regarding the application of practices and the application of analogy of law, as stated in Article 5 and Article 6 respectively, will be applied.
Similarly, Article 4(2) of the 2015 Code of Civil Procedure, Law No. 92/2015/QH13 (“2015 Code of Civil Procedure“), also mandates that courts must not refuse to resolve civil cases due to the absence of applicable legislation.
Resolving civil cases lacking specific legislation is conducted according to the principles outlined in the 2015 Civil Code and the 2015 Code of Civil Procedure.
In this article, ASL LAW will analyze and clarify the fundamental and essential factors in applying practices, applying analogy of law, or applying basic principles of civil law, precedents, and fairness when there is no legislation for resolving civil disputes in Vietnam. In addition, the article will highlight the differences between the civil law and common law systems, as well as the advantages that the legal systems of various countries can exploit.
Principles for Resolving Disputes and the Sequence of Alternative Methods When There Is No Legislation for Resolution in Vietnam
When there is no applicable legislation, according to Article 45 of the 2015 Code of Civil Procedure, the Vietnamese courts apply alternative methods in the following order:
- Application of practices: Courts apply practices to resolve civil cases when the parties do not agree and there is no legal provision. The application of practices must not contradict the basic principles of civil law specified in Article 3 of the 2015 Civil Code.
- Application of analogy of law: In cases where there is no legal provision, agreement between the parties, or applicable practices, courts apply analogy of law.
- Application of basic principles of civil law, precedents, and fairness: When there are no legal provisions, agreements, practices, or analogy of law to apply, courts use the basic principles of civil law, precedents, and fairness to resolve civil cases.
In cases where there is no governing legislation, litigation authorities are not entitled to choose alternative methods for processing but must adhere to the above sequence to ensure the legitimate rights and interests of the parties involved are protected, establishing a fair, rigorous, and orderly judicial system in society.
Applying Practices to Resolve Civil Disputes in the Absence of Legislation
Article 5(1) of the 2015 Civil Code defines practices as rules of conduct with clear content to determine the rights and obligations of individuals, legal entities in specific civil relations. These practices are formed and repeated over a long period, recognized, and widely applied in a region, community, or in a specific civil field.
In the spirit of Resolution 04/2012/NQ-HĐTP, practices are rules of conduct formed, repeated over a long period, recognized, and widely applied in a region, community, or in a specific civil field.
In different fields or issues, practices can be classified as social habits of a community, a region where residents have lived for a certain period, or may be widely recognized practices in commercial activities in a geographical area or commercial field. It could also be customary in international trade, the behavior between commercial entities widely acknowledged.
For instance, practices may include conventions within a group of vendors and buyers in a traditional market, where they understand without written documentation that a “cân” is a kilogram, or a “chục” is 12 fruits instead of 10 fruits which should be the correct translation. These practices are not specifically regulated but become formulas, regulations, and understood practices passed down through generations, usually orally.
One of the common civil disputes often resolved through practices is disputes over real estate boundaries. Article 175(1) of the 2015 Civil Code stipulates that the boundaries between adjacent real estates can be determined by practices or by existing boundaries for 30 years or more without dispute in cases of no agreement or decision from competent authorities.
Therefore, in localities such as villages, remote areas without clear boundaries, dispute resolution will be based on the practices of that locality if there are relevant practices for identifying and resolving land disputes.
Another example is in cases of marital conflicts regarding the determination of the children’s surname, Article 26(2) of the 2015 Civil Code provides that the surname of an individual is determined by agreement between the parents. If there is no agreement, the child’s surname is determined by practices. Thus, if in a community both parents traditionally give their children the father’s surname, this custom will be applied.
Conversely, some practices, despite their long existence, will not be recognized by the Court, if they contradict basic principles of law, social ethics, are no longer suitable for societal and legal changes, as regulated in Resolution 04/2019/NQ-HĐTP.
For instance, in some ethnic minority areas with extreme patrilineal practices, daughters are automatically considered inheritors of their parents’ property if there are no other agreements between the parties like wills or testaments. However, if this custom is invoked in inheritance disputes involving other sons in the family, the Court will reject this argument as it is an outdated custom regarding marriage and family, which the Vietnamese government advocates eliminating.
When requesting the Court to resolve a civil case in the absence of agreement and legal provisions, the parties have the right to invoke practices for the Court to consider applying. The Court is responsible for determining the applicability of practices in accordance with Article 5 of the 2015 Civil Code.
Furthermore, the law also provides that in cases where parties invoke different practices, the applicable practices are those recognized in the place where the civil dispute arises. However, this provision currently lacks basis and has not been widely applied in practice.
In civil transactions, freedom and voluntary agreements between parties are always encouraged and recognized by the law, as long as they do not violate prohibitions or basic principles of civil law. Therefore, acknowledging and applying practices in civil transactions will help prevent and limit disputes arising from the continuous changes in civil transactions.
Applying Analogy of law to Resolve Civil Disputes in the Absence of Legislation
In cases where there is no specific legislation for resolution, nor agreements between the parties or practices to apply, the court will resort to applying analogy of law to resolve civil disputes according to the provisions of Article 5 of the 2015 Civil Code and Article 45(1) of the 2015 Code of Civil Procedure.
When applying analogy of law, the court must clearly determine the legal nature of the civil matter, identify within the current legal system the absence of legal provisions regulating that relationship, and identify similar legal provisions regulating similar civil relationships.
Therefore, applying analogy of law to resolve civil disputes is a temporary method to overcome and compensate for the deficiency of the current legal system, based on legal provisions regulating other cases with similar or analogous dispute content requiring resolution, or based on general legal principles.
For example, if Vietnamese laws or statutes do not have specific provisions regarding a certain issue, such as addressing the liability for property damage caused by individuals without clear or detailed regulations, then the court will apply analogy of law to resolve such disputes.
During the process of developing the legal system, especially in countries following the Civil law system, legislators always strive to establish comprehensive laws covering all possible cases or dispute scenarios. However, predicting or listing all cases comprehensively is impossible. Currently, legislators are still expeditiously constructing and refining laws related to cyber space, online dispute resolution, digital fraud, unresolved disputes, etc.
For instance, when the Vietnamese National Assembly drafted and enacted the Penal Code of 1985, Law No. 17-LCT/HĐNN7, there were no provisions regarding illegal racing resulting in serious consequences because at that time, Vietnam did not have the capacity to experience such incidents. However, as technology developed, violations related to illegal racing became increasingly common as people gained access to advanced means of transportation easily, making the application of analogy of law insufficiently detailed and no longer suitable. This led to the need for specific regulations on different types of illegal racing behaviors as well as corresponding penalties based on the damages caused.
However, in the absence of detailed provisions, when there is an immediate need to resolve such cases to protect the legitimate rights and interests of the parties involved, the court will have to resolve them by applying analogy of law.
Furthermore, it’s important to note that applying analogy of law can only be used to resolve civil disputes due to the flexibility of this field. This is because according to the provisions of the Penal Code of 2015, Law No. 100/2015/QH13, an act is only considered a crime when it is regulated by the Penal Code. If there are no legal provisions in the Penal Code regulating a certain act, then that act is not considered a crime.
Criminal liability is the most severe and strict legal responsibility under Vietnamese law. Legal certainty is the most important principle of criminal law. If criminal offenses can be resolved by applying analogy of law, it would diminish the value of legal certainty, undermine legal rigor, and reduce the solemnity of the judicial system.
Applying Basic Principles of Civil Law, Precedent, and Fairness to Resolve Civil Disputes in the Absence of Legislation
In cases where there is no specific legislation to resolve civil disputes, no practices or analogy of law to apply, the court will apply the basic principles of civil law, precedent, and fairness to resolve the matter.
The basic principles of civil law are outlined in Article 3 of the 2015 Civil Code.
According to Article 45(3) of the 2015 Code of Civil Procedure, fairness is determined based on principles that must be recognized by society, consistent with humanitarian principles, impartial, and ensuring equality of rights and obligations of the parties involved in the civil dispute.
However, the provision on applying fairness in resolving civil disputes is still rudimentary and lacking foundation. Since the 2015 Civil Code came into effect, there have been no guidelines related to applying fairness as a legal basis to resolve disputes, leading to the current situation where no civil case has been resolved through the application of fairness.
Although recognizing the use of fairness in dispute resolution as a legislative advancement, merely stopping at the level of orientation is insufficient for practical application.
Conversely, specifying that the court will resolve disputes through precedent is a more practical approach. Precedent is researched and applied by the court in resolving civil cases when selected by the Judicial Council of the Supreme People’s Court and announced by the Chief Justice of the Supreme People’s Court.
Precedent is a vital element in the legal systems of Western countries, originating from England nearly a millennium ago. Judges at that time established a common law system based on national practices and royal decrees, rarely written as formal documents.
Despite the development of formal legal texts over the years, precedents still play the most important role in legal jurisprudence. When resolving civil disputes, the court relies on past precedents with similar characteristics to the case at hand to make decisions.
In the common law system, the judiciary plays a crucial role in developing the legal system through the issuance of precedents, rather than focusing on drafting legal texts. Lower courts tend to follow precedents set by higher courts in similar cases.
In Vietnam, precedents selected by the Judicial Council of the Supreme People’s Court and announced by the Chief Justice of the Supreme People’s Court are considered precedents for courts to study and apply in accordance with Resolution No. 03/2015/NQ-HĐTP.
Precedents must meet criteria regarding standards, provide guidance for uniform application of law in trials, ensure that cases with similar legal events are treated equally, clarify different interpretations of legal provisions, analyze and explain legal issues and events, and identify principles, approaches, and legal norms to be applied in specific cases.
However, as part of the civil law system, precedents play a much more limited role than formal legal texts. Typically, in cases where there are laws, precedents only serve as reference points and do not have binding force.
In terms of nature, civil law and common law systems each have their own unique characteristics, developed and refined over many years, demonstrating the effectiveness of these two legal systems.
The common law system may be more flexible and adaptable to societal changes without waiting for subsequent amendments or supplements to laws to issue timely decisions to protect the legitimate rights and interests of the parties involved. However, the existence of multiple precedents may lead to conflicts and overlapping, adding burden to the judicial system and legal entities during litigation.
Conversely, Vietnam’s civil law system, with comprehensive laws covering most cases, offers stability, fairness, and transparency when laws are publicly enacted without being influenced or adjusted by any particular precedent.
In practical application, most countries and territories currently deploy both legal systems, although there is a tendency to lean towards one primary system. However, it can be argued that in the future, the gap between the application of common law and civil law will narrow, creating a unified system where formal legal texts serve as the legal framework while precedents are exceptions to be considered when making decisions in the absence of detailed legislation.
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