Doctor of Philosophy
Faculty of Law
Do, Thi Mai Hanh, Evaluation of the applicability of common law approaches to precedent in Vietnam, Doctor of Philosophy thesis, Faculty of Law, University of Wollongong, 2011. http://ro.uow.edu.au/theses/3318
Vietnam is in the midst of legal and judicial reforms as it attempts to construct an appropriate framework for a successful market-based economy. It is increasingly likely that as its legal system has been changed to complement a market economy, an added degree of unpredictability has entered the situation, particularly due to the degree of legal transplantation involved. Vietnam has imported legal rules from the Civil Law and the Common Law, altering its legal system and blurring previously clear structural lines. Further change can be anticipated, and with due consideration, welcomed.
Recently, the Vietnamese government has been planning to transplant common law approaches to precedent as a solution to fill the gaps created by its reliance on sources of law traditionally of legislative origin, with such sources including Codes, Laws, Ordinances, Decrees, Resolutions, and Circulars, while judicial precedents and customary laws have not been officially recognised. The application of law in Vietnam has generally been critically evaluated as not being consistent, uniform and effective, mainly due to that acceptance of a single type of source of law, that is, written law. A lack of adequate legal interpretation, the uncertainty and the deficiency in the legislation itself constitute shortcomings of the legal system.
As a typical source of law in the Common Law, judicial precedents are usually considered to possess merits that make the legal system certain, predictable and stable. Therefore, with those strengths, precedents can potentially supply the certainty and stability which legislation on its own lacks.
However, according to the theories of legal transplant, the fact is that not all legal transplants can be successful. On the one hand, transplanted law sometimes may not be viable, or applicable and may be even harmful to the legal system of the recipient country. On the other hand, in some cases, the recipient country cannot meet the requirements or conditions for the viability of the transplanted law. Therefore, it is extremely necessary to evaluate the possibility of adoption of any legal transplant of the recipient country before it is practically processed. For these reasons, the thesis aims to evaluate the applicability of Common Law approaches to precedent (which is, from Chapter 1 to the end of the thesis, later abbreviated and refered to judicial precedents) in the Vietnamese legal system. Two main questions which need to be addressed in the thesis are: (i) Are Common Law approaches to precedent viable in the Vietnamese legal system?; and (ii) To what extent can Common Law approaches to precedent be applied in Vietnam? To carry out this evaluation, the discourse on legal transplants is to be examined, and an analysis of Common Law approaches to precedent and a review of the legal and court system in Vietnam are to be conducted.
Having examined all research questions and related evidence, the thesis argues that the viability of Common Law approaches to precedent in the legal system of Vietnam is fairly high although Vietnam needs the time to tackle the problems that would hamper the adoption of such an approach, and to make this viability possible. In terms of the applicability of the Common Law approaches to precedent, it is unavoidable that there are several modifications to and limitations in applying judicial precedents in Vietnam. Those changes are to accommodate the current and near future legal context of Vietnam and simultaneously to avoid weaknesses existing in the application of judicial precedents in the Common Law.