Án lệ hình sự ở việt nam hiện nay tt tiếng anh

VIET NAM ACADEMY OF SOCIAL SCIENCES
GRADUATE ACADEMY OF SOCIAL SCIENCES

NGUYEN THANH MAN

CRIMIAL PRECEDENT IN VIETNAM TODAY

Major in: Criminal and criminal procedure law
Code: 9 38 01 04

SUMMARY OF DOCTORAL THESIS OF LAW

HANOI – 2019


This dissertation completed at
Graduate Academy of Social
Sciences Under Vietnam Academy
of Social Sciences

Supervisor: Assoc. Prof. PhD. Tran Van Do

Reviewer 1: Prof. PhD. Nguyen Ngoc Anh
Reviewer 2: Prof. PhD. Ho Trong Ngu
Reviewer 3: Assoc. Prof. PhD Truong Quang Vinh

The dissertation will be defended at the Academy level Council of
Dissertation Assessment
Venue: Doctoral dissertation defending room ...... Graduate
Academy of Social Sciences under Vietnam
Academy of Social Sciences,

No 477, Nguyen Trai road- Thanh Xuan District - Hanoi. Time:
…...hours, date………, month………..year 2019

The dissertation could be found at:
- Vietnamese National Library
- Library of Graduate Academy of Social Sciences.


INTRODUCTION
1. The urgency of the project
Firstly, building a socialist rule-of-law state of the people, by the
people and for the people is one of the top priority tasks in the contents
of judicial reform in Vietnam today. The administration of the State and
the society by law is just a necessary factor but not the sufficient
element of a rule-of-law state. The rule-of-law state requires that the
law shall be applied in a tailor-made way. The fact that the court applies
the law in an uniform manner shows in similar cases, they must be
treated equally. The precedent in general, criminal precedent in
particular has long been very popular and beyond the borders of the
common law tradition, becoming a legal source of many legal systems
in the world. That is the inevitable result of the process of globalization,
integration and cooperation which has been taking place strongly in the
economic, political and legal life of the modern world. Currently, in the
context of increasingly widespread and deep international integration,
issues of disputes and relations arising in economic activities, types of
crimes in Vietnam tend to be more complicated with many more
sophisticated forms. The statutory law has gradually revealed gaps that
need to be supplemented and improved. Thoroughly grasping the points
of view in the Resolution No.48 and the Resolution No.49 of the
Politburo is an urgent requirement. Recognizing and applying the

precedent is consistent with the Constitution and laws of Vietnam.
Furthermore, according to the applicable regulations, the Council of
Supreme People's Court Judges shall guide the courts to apply the law
uniformly, which can be implemented through the issuance of a
Resolution guiding the application of law. and also through selection
and publication of case law
Secondly, the practice of applying the statutory law in judging
criminal cases in Vietnam has achieved many achievements but still has
unresolved problems. The experience of the countries in the world is to
acknowledge the the precedent, in order to solve problems in trial
activities where the statutory law is unclear or there is no regulation.
The precedent has become more popular, contributing to overcoming
the gaps of the statutory law. In the current trial of criminal cases in
Vietnam, many cases have similar behaviors and circumstances, but
there are still different understandings, leading to the unification of the
law. The trial result is different. This practice poses the need to apply
the precedent to resolve criminal precedents as an objective
indispensable requirement. Therefore, studying the criminal precedent
and thoroughly understanding of the manner and the process
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of developing and applying the criminal precedent is an essential and
urgent task in the current period. This is an important reason for the
researcher to study the topic “Criminal precedent in Vietnam today” in
order to seek breakthrough solutions, contribute to the formulation and
application of the precedent in adjudicating criminal cases in an
effective way.
Thirdly, currently, the selection, publication and application of the
Resolution No.03/2015/NQ-HDTP, on the process of selecting,

publishing and applying the precedent (hereinafter referred to as the
Resolution No.03). The construction and application of the criminal
precedent also follow this process. With the above process, the Supreme
People's Court has issued 04 criminal precedents (hereinafter called the
criminal precedent), in which 01 criminal precedent has become legally
effective and 03 criminal precedents will be effective since December 3,
2018. This result has affirmed the correct policy of the Party and the
State of Vietnam and the high efforts and determination of the leaders of
Vietnam court system.
However, the current number of the criminal precedents is too
small. The main reason is due to the fact that the process of construction
and selection is not currently reasonable, short of separate criteria and
the not clearly defined application. Many issues and contents related to
the criminal precedent have not been studied and clarified.
From the above reasons, the doctoral researcher has chosen the
topic Criminal precedent in Vietnam today as the doctoral thesis in law
with the major in criminal precedent.
2. Research purposes and tasks
2.1. Research purposes
In response to the requirements of judicial reform and the
implementation of the Constitution 2013, the construction and
application of the precedent in general and the criminal precedent in
particular in the trial is an urgent task. Because, the the precedent is
expected to overcome the gaps of the statutory law. But how decisions
and judgments become criminal precedents, and how criminal
precedents apply are not a simple matter.
Recognizing the above importance, the research purpose of the
thesis is to clarify theoretical issues about the concept of the precedent,
the nature and characteristics of the criminal precedents; theories on
construction and application of the criminal precedents; practical

construction and application of the criminal precedent in Vietnam. On
that basis, the thesis proposes the requirements and solutions to improve
the quality of building and applying the criminal precedent in Vietnam
in the coming time.
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2.2. Research tasks
To achieve the above goal, the research task is to:
Firstly, analyze and clarify theoretical issues of the criminal
precedent (concept, nature, characteristics of the criminal precedent);
theories on construction and application of the criminal precedent.
Secondly, assess the achievements and limitations and the causes
of achievements and limitations in practical construction and
application of the criminal precedent in Vietnam.
Thirdly, propose requirements and solutions to contribute to
improving the quality of building and applying the criminal precedent in
Vietnam.
3. Subjects and scope of the study
3.1. Research subjects
Theoretical issues of the criminal precedent; theory and practice
of building and applying the criminal precedent in Vietnam, solutions to
improve construction quality and apply criminal precedent in the
coming time.
3.2. Research scope
- About the content:
The thesis studies the theory and practice of building and
applying the criminal precedent in Vietnam today.
- About the time:
The thesis has been studied since 2005 until now (From the the

Resolution No. 49/NQ-TW dated June 2, 2005 by the Politburo,
Regarding the judicial reform strategy up to 2020).
Besides, in order to ensure the system and achieve the research
purpose, the thesis has mentioned some contents about precedents and
criminal precedents before and after the above timeline.
4. Methodology and research methods
4.1. Methodology
The thesis researches on the viewpoints of Marxism-Leninism
and Ho Chi Minh Ideology, the viewpoints of the Communist Party of
Vietnam and the State on the state, the law, building the rule-of -law
state, about judicial reform, theories and history of the state and the law,
criminal laws and criminal procedural laws, reflected in the process of
directing judicial reforms to meet the requirements of building a
socialist rule-of-law state in Vietnam.
4.2. Research Methods
The thesis uses specific research methods such as systematization
method, analytical method, logic method, criminal statistical method,
summarization method, collation method, comparison method, proving
method, practical survey methods. In addition, the thesis is studied on
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the basis of legal science majors such as: History of law, theory of law,
criminal law, criminology, criminal procedural law, sociology of law.
Thereby, the researcher draws conclusions and appropriate proposals to
complete the regulations on construction and application of the criminal
precedent.
5. New scientific contributions of the thesis
Firstly, to develop concepts, internal analysis, nature and
characteristics of the criminal precedent, thereby proposing criteria to

have a basis for building criminal precedent as well as selection
proposals.
Secondly, the dissertation analyzes and clarifies the concepts,
characteristics and principles of the principle of building and applying
the criminal precedents in trial activities, thereby proposing the
selection process and the compulsory nature in the application of the
criminal precedent.
Thirdly, by analyzing achievements, limitations and causes of
such achievements and limitations in the formulation and application of
the criminal precedent, the thesis clarifies the practice of building and
applying the criminal precedents in Vietnam since the first criminal
precedent was announced.
Fourthly, on the basis of the requirements set forth, the thesis
boldly proposes solutions to improve the quality of construction and
application of the criminal precedent in Vietnam in the coming time.
6. The theoretical and practical significance
6.1. The theoretical significance
The thesis overcomes the lack of scientific researches on criminal
precedents in Vietnam today.
The thesis is the first and sole project at the present time to study
the criminal precedent in Vietnam, contributing to supplementing the
theory of the criminal precedent, theories on the construction and
application of the criminal precedent in Vietnam.
The thesis elaborates and clarifies some theoretical issues about
criminal precedents such as: Building the concepts, analyzing internal
functions, nature and characteristics of the criminal precedents; at the
same time, analyzing and clarifying the concepts, characteristics and
principles of building and applying the criminal precedents in trial
activities.
These contributions will contribute to building and completing

the theory of the criminal precedent, building and applying the criminal
precedent in Vietnam today. It is the basis for further studies to be able
to inherit and develop the theory of building and applying the criminal
precedent in Vietnam; opening the research direction on criminal
precedents in specific regulations of the criminal law.
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6.2. The practical significance
- The research results of the thesis are references to the
Vietnamese court system to continue to build and apply criminal
precedents.
- As the references for studying and teaching law, law practice ...
In particular, the training institutions can refer to the development of the
program, the curriculum of higher education, judge operation training.
- As the references for individuals and organizations interested in
researching, suggesting some research directions on the precedent in
other fields (research on civil law, administrative law ...). In particular,
it is possible to open an in-depth research on civil the precedent which
is currently an urgent requirement.
7. Structure of the thesis
The thesis includes the introduction, conclusion, list of references
and appendices, the content of the thesis consists of 4 chapters and 10
periods.
Chapter 1: Overview of research situation and issues to be further
researched on the criminal precedent
Chapter 2: Theoretical issues of the criminal precedent,
construction and application of the criminal precedent
Chapter 3: Practice of building and applying criminal precedents
in Vietnam

Chapter 4: Requirements and solutions to improve the quality of
construction and application of the criminal precedent in Vietnam
Chapter 1
OVERVIEW OF THE RESEARCH SITUATION AND ISSUES
TO BE FURTHER STUDIED ON THE CRIMINAL PRECEDENT
1.1. Research situation
1.1.1. Overview of the international study situation
1.1.1.1. The group of research projects on the concepts, position,
role and characteristics of the precedent
The book Precedent In law by Gernald J.Postema; the book
Introduction, quoted by J.A.G. Pacock in The Ancient Constitution And the
Feudal Law by Sir John Davies; the book Institutes, I, Sec.138. quoted by
Gerald J.Postema, Some Roots Of our Nation Of Precedent, In “Precedent
In Law” by Coke; the book Commentaries (13th ed) on the Law of England
by Blackstone; the book “Interpreting Precedents” by the two authors
D.Neil Mac Cormick, Robert S.Summer; the book Jurisprudence Theory
and context by Brian Bix; the book The Rule of Precedent by Theodore
M.Benditt; the book Precedent in the Federal Republic of Germany, in
“Interpreting Precedents A Comparative Study” by Alexy,
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Robert and Ralf Dreier; the book French Legal Method by the French
jurist, Eva Steiner.
1.1.1.2. The group of research projects on criteria,
characteristics, principles of construction and application of the
precedent
The Article “Precedent-related regime of South Korea” by
Yoonmin Rah ; The book “Interpreting Precedents - A comparative
study” by D.Neil Mac Cormick (1997) ; The book "“Judicial Reasoning

and The doctrine of Precedent in Autralia” by Alastair MacAdam and
John Pyke (1998) ; the doctoral thesis Evaluation of the applicability of
Common law approaches to precedent in Vietnam by Do Thi Mai Hanh
completed at University of Wollongong, Australia (2011)
1.1.2. Overview of the research situation in Vietnam
1.1.2.1. The group of research projects on the concepts, positions,
roles, characteristics and history of the precedent
The ministry-level scientific research project Deploying the
precedent into the trial of Vietnam court system by Truong Hoa Binh Chief Judge of the Supreme People's Court (Chairman, 2012) ; The
article “About the current precedent of Vietnam” by Dang Quang
Phuong, the former Deputy Chief Judge of the Supreme People's Court ;
The article “A general awareness of the the precedent, the importance of
the precedent in the trial and generalization of precedent schools in the
world” by Nguyen Van Cuong (2009) ; the article “The problem of
applying the precedent in Vietnam” by Duong Bich Ngoc and Nguyen
Thi Thuy (2009) ; The dissertation The theory and practice on the
precedent in the legal system of England, USA, France and Germany
and proposals for Vietnam by Nguyen Van Nam (2011) ; the article
“Regulations on the precedent in the Law on Organization of People's
Courts 2014 - from the perspective of the precedent nature” by Dau
Cong Hiep and Ha Thi Phuong Tra ; The book “Sociology of Law” by
Vo Khanh Vinh ; The book “ Comparative criminal law” by Ho Sy Son
(2018).
1.1.2.2. The group of research projects on selection criteria,
processes, characteristics and principles of construction and
application of the precedent
The article “Japanese precedents and a number of issues raised
when bringing the precedents to trial in Vietnam Court” by Nguyen Van
Cuong (2009) ; The article “The precedents of the Supreme Court - The
French experience for the development of the precedent in Vietnam”

was published in the People's Court Journal by Do Van Dai, Issue No.13
(2011); the article “Discussing criteria and procedures for selection of
the precedent” by Tran Van Tuan (2015) ; the article “The process of
selecting, announcing and applying the precedent in
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Vietnam” by Chu Thanh Quang published in the Workshop Proceedings
Precedent - Theory and practice in Vietnam and some countries held at
Hanoi Law University (2017); The article “Challenges and orientations
for implementing the precedent in Vietnam” by Chau Hoang Than
published in the State and Law Magazine (Issue No.2/2016); the
doctoral dissertation Functions of establishing the precedent of the
court by Do Thanh Trung (2018); The book Source of Vietnam's
criminal law by Nguyen Anh Tuan (2010); the article Content, manners
of building and applying criminal precedent number 01 by Tran Thi
Quyen published in the Proceedings of the International Scientific
Conference titled “Precedent - Theory, Practice in Vietnam and some
countries (2017).”
1.2. Comments on the research situation
1.2.1. General comments
By reviewing the research projects on precedents and criminal
precedents, which have been published both at home and abroad, we
can realize that:
Firstly, the projects primarily focused on the history, the process
of recognizing the precedent as as source of law in the countries which
apply the Common law and Civil law systems. Conceptions on notions,
characteristics, roles, construction methods and principles of the
precedent application of different schools in Vietnam and around the
world. For each different court system, the application of the the

precedent is different. Due to the legal system and the organization of
the court system of those countries. In addition, when building the
precedent, the projects note the criteria for selection, publication,
proposal of construction and development of law and how to apply. This
is considered an experience for Vietnam when recognizing, developing
and applying the precedent.
Secondly, the research projects of domestic authors initially
clarified the concept, characteristics and role of the precedent in
general.
Thirdly, there are some projects mentioning the application of the
precedent in resolving criminal precedents.
Fourthly, in addition to the research projects directly to the issue
of construction, application of law in general, Criminal precedent in
particular, there are also some deep researches on sociology of law and
mechanism. guarantee and protection of human rights . These are
systematic studies on the improvement of the law in order to build a
mechanism to ensure and protect human rights and to improve the law
on the basis of practicality and sociality of the law. .
1.2.2. Some issues need to continue research
The thesis focuses on clarifying the following contents:
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Firstly, analyze, clarify theoretical issues about criminal
precedent, develop and apply criminal precedent .
In the Vietnamese legal system, criminal precedent in general,
criminal precedent in particular is still a new issue . Therefore, in order
to achieve the purpose of the study, the thesis topic clarifies the
theoretical issues of the criminal precedent, formulating and applying
the criminal precedent law ie focusing on analyzing and clarifying the

conceptual content. Criminal precedent, showing the nature,
characteristics and role of the criminal precedents . Besides, the thesis
analyzes and clarifies concepts, characteristics, principles of
construction and application of the criminal precedent . This is the basis
to point out the characteristics of the criminal precedents compared to
other types of the precedent.
Secondly, analyze and clarify the practice of building and
applying the criminal precedent in Vietnam
In Vietnam, the recognition of precedents in general, criminal
precedent in particular in the legal system is a very long process. In
general, criminal precedent has been acknowledged as a source in the
history of Vietnamese law. Therefore, when studying the practice of
construction and application of the criminal precedent in Vietnam, the
thesis will study through 2 phases: Phase 1: Practical construction and
application of the criminal precedent before 2015 ; Phase 2: Practical
construction and application of the criminal precedent from 2015 to
present. At each stage, clarify the characteristics in the selection and
publication of the criminal precedents through the competent authorities
and the activities of the competent subject to apply Criminal precedent
in trial practice. . On the basis of practical analysis to build and apply
criminal precedent, the thesis topic initially assesses the achievements
and limitations that exist in the process of developing and applying the
criminal precedents. aiming to find solutions to overcome that
limitation.
Thirdly, propose solutions to improve the efficiency of building
and applying the criminal precedents in Vietnam .
The above issues will be analyzed in depth by the researcher in
the next chapters of the thesis.
1.3. Research hypothesis and research questions
1.3.1. Research hypothesis

With the topic “Criminal precedent in Vietnam today”, the
doctoral researcher sets the research hypotheses as follows:
- Since the year 2004 now, the Supreme People's Court regularly
announced the cassation decisions of the Judges Council of the Supreme
People's Court . This is one of the necessary preparation steps for
recognition and development of The precedent in Vietnam. In the
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spirit of the Resolution No. 49/ND-TW dated June 2, 2005, the
Supreme People's Court shall be responsible for reviewing trial
experience, guiding the uniform application of law, developing the
precedent and judging review, retrial. The study of the precedent in
general, criminal precedent in particular in Vietnam is now an urgent
matter.
- Criminal precedent is recognized as an important guest element
of the legal system, it contributes to ensuring fairness, unity, easy
assessment and predicting the application of law and the precedent. The
role of promoting practicality in law training in Vietnam
today. Studying theoretical and practical issues to build and apply
effective criminal precedents will overcome the shortcomings of the
law. This is an important content in the process of renovating and
building a socialist rule-of -law state in Vietnam. However, the
construction and application of the criminal precedent in Vietnam
currently has limitations that need to be overcome, contributing to
promoting the role of the criminal precedent in practice to compensate
for the limitations. of the law of writing.
1.3.2. Research question
To solve the content of the topic, the author gives some research
questions that need the following answers:

The first question: The theory of establishing and applying the
criminal precedent in Vietnam today?
The second question: What is a Criminal precedent (in Vietnam
today)?
This question aims to clarify the definition of the concept of
" Criminal precedent ", to determine which scope of the criminal
precedent covers the scope, part of civil liability in Criminal precedent
is considered to be a criterion to build. Is the civil the precedent made in
criminal?
The third question: Currently, how is Criminal precedent in
Vietnam built?
This question aims to clarify the process of selection and
publication of precedents in Vietnam today. In addition to the
advantages, there are limitations and shortcomings in the process of
selecting the Court's precedent. What is the difference between the
process of selection of the criminal precedents and the selection process
of other precedents? in order to perfect the legalization of this process.
The fourth question: How is criminal justice practice applied in
practice?
This question is aimed at clarifying how the current law
enforcement situation in Vietnam is, what advantages and difficulties to
overcome.
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The practice of applying the part of determining criminal charges
and deciding the penalty and the determination of civil liability in
criminal precedents.
The fifth question: What are the achievements and limitations of
the establishment and application of the criminal precedent in Vietnam,

the causes of achievements and limitations?
The sixth question: What are the solutions to improve the quality
of building and applying the criminal precedents? (Requirement,
solution to build and apply effective case to overcome limitations of
statutory law)
This question aims to clarify requirements and solutions, to improve
the effectiveness of construction and to apply criminal precedent .
Conclusion of Chapter 1
In the world, along with the history of birth and great valuable
contributions of the the precedent in practice of judicial activities, the
position of the precedent in research projects cannot be absent, even the
scientific research products on the precedent are also considered to be
massive. However, for Vietnam, the the precedent in general, the
criminal precedent in particular is a very new issue. The precedent
officially recognized in Vietnam in church law for 03 years (2015-201
9). The above time period marks the first steps for the practice of
developing and applying the precedent in Vietnam, which is also the
beginning of the research, summarizing the practice of building and
applying the precedent with merits. submit their c. However, at present,
there is no comprehensive and comprehensive research project on
Criminal precedent in Vietnam today, this is the gap that the doctoral
researcher continues to clarify in his research work, contributing to on
building and improving the theory of the criminal precedents .
Chapter 2
THEORETICAL ISSUES OF CRIMINAL PRECEDENT,
CONSTRUCTION AND APPLICATION OF THE CRIMINAL
PRECEDENT
2.1. Concepts, natures, characteristics and roles of the
criminal precedent
2.1.1. Criminal precedent concept

Criminal precedent in Vietnam is a type of the precedent, formed
by the Court, which contains arguments in a legally enforceable
judgment or decision to clarify and explain the legal provisions of the
law. There are also different understandings, selected, published in a
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certain order and procedures, valid for uniform application of the
criminal precedent to similar cases later.
2.1.2. Nature and characteristics of the criminal
precedents * The nature of the criminal precedent
When referring to the nature of the criminal precedent, it is
impossible to separate the nature of the law (including the statutory law
existing in the form of legal documents and precedents).
On the basis of the theory of the formation of law (including the
law of written and the precedent) in social history and the nature of the
law. Some of the following may be drawn:
Firstly, the construction of laws and criminal precedents comes
from the practice of adjusting social relations in a society with class
division leading to the formation of the state and the law.
Secondly, the law-issuing subjects (law of written and judgmental
cases) are the people at the ruling level who have the role of social
management. However, statutory law is formed on the basis of issuing
legal documents of the state authority of the Authority.
Thirdly, in a society with a state class, the law may exist only in
the form of legal documents, precedents, or only exist in the form of
legal documents. This depends on the historical context, the legislative
tradition ...
* Characteristics of the criminal precedent
Firstly, the subject creates a criminal precedent which is a Court,

another characteristic of a the precedent in general, a criminal precedent
in particular, which is a the precedent formed from reality in each
specific Criminal precedent. .
Secondly, the content characteristics Criminal precedent cases
contain arguments to explain clearly the legal grounds that are not
uniform in the way of understanding, behaviors and circumstances that
have not been clarified. Thus, criminal precedent only clarifies the rules
of behavior and circumstances prescribed in criminal precedent without
creating new regulations on crime, or creating a new crime .
Thirdly, criminal precedents must be selected according to a
certain order and procedure. This ensures the Criminal precedent of
strictness and quality assurance to overcome the limitations of statutory
law and ensure practical implementation because it is universal .
Fourthly, criminal precedent can change according to the change
of time, which shows the flexibility and flexibility of the case in
accordance with the rapid change of society.
2.1.3. The role of the criminal precedent

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Firstly, criminal precedent plays a role, contributing to
supplementing and completing the process of building and applying the
criminal precedent;
Secondly, the criminal precedent contribute to strengthening the
principle of ensuring equality before the law as applied the precedent
criminal ;
Thirdly, criminal precedent contributes to concretizing the
meaning of abstract criminal precedent provisions through the
interpretation of the criminal precedent;

Fourthly, a criminal precedent is unified in the application of the
criminal precedent, ensuring the stability of the criminal precedent.
2.1.4. Discrimination of the criminal precedents with other
types of the precedent
Firstly, the relationship between Criminal precedent and
administrative law
Secondly, the relationship between Criminal precedent and civil law In
summary, the analysis and comparison make clear the difference
between criminal precedent and other types of the precedent
(Administrative, Civil, Commercial Business, Labor, Family Marriage)
with important significance. for determining criteria to select criminal
precedent in accordance with practice to promote the effectiveness of
the construction and application of the criminal precedent. Since then,
there is a basis to propose the selection process and apply the individual
Criminal precedent.
2.2. Concepts, characteristics and principles of the criminal
precedent construction
2.2.1. Concept of the criminal precedent construction
The process of building the law or the way to formulate laws is
essentially the process, the way to create laws in history. The law is not
accidental but it is not the phenomenon that is imposed from the outside
into society but it is the product of human consciousness, in a class
society. It is the result of the process of human subjective awareness of
the objective world.
Building criminal precedents in Vietnam today is the process of
selection and announcement by competent agencies according to the
process, self-procedures, forms prescribed by law, to apply for solving
case cases. the same afterwards .
2.2.2. Characteristics of criminal criminal construction
Firstly, building criminal precedent is a state-owned activity ;

Secondly, building criminal precedents of commonality, stereotypes and
legal standards ; Thirdly, building a criminal criminal systemic system ;
Fourthly, building criminal precedents must
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comply with a strict process according to certain procedures ; Fifthly,
the subject who created the Criminal precedent is the Judges.
2.2.3. Principles of building the criminal precedent in Vietnam
Activities to build criminal precedent of state power affect the
whole society. Therefore, the construction of the criminal precedents
must comply with the basic principles to ensure that state power is
implemented and strictly controlled.
Firstly, the principle of ensuring the leadership of the Communist Party
of Vietnam for law-building activities in general and construction of the
criminal precedents in particular. Secondly, the objective principle
Thirdly, the rule of law
Fifthly, scientific principles
Fourthly, the democratic principle
2.3. Concepts, characteristics and principles to apply criminal
precedent .
2.3.1. Concept of applying the criminal precedent
Application of the law in general and the application of the
criminal precedent in particular is the form of law implementation, in
which the state adopts state agencies or authorities competent to
organize law enforcement entities laws, the implementation of the
provisions of the law or by themselves according to the provisions of
the law to make decisions to generate, change, suspend or terminate
specific legal relations .
It is possible to draw the concept of applying the criminal

precedent as follows:
Applying the criminal precedent is the activity of the authorized
entities in the process of conducting criminal proceedings based on the
law and Criminal precedent to solve criminal precedents in the period
from prosecution, investigation, prosecution and trial.
2.3.2. Characteristics of criminal criminal
application Firstly, is a state-owned activity.
Secondly, the operation must comply with strict forms and
procedures prescribed by law.
Thirdly, applying the criminal precedent is a specific and specific
adjustment activity for certain social relations.
Fourthly, applying the criminal precedent is an activity that
requires creativity.
2.3.3. Principle of applying the criminal precedent
Firstly, there are grounds, valid reasons when applying the
criminal precedent. Criminal precedent applies only when criminal
precedents have behaviors and circumstances that have different
interpretations that are explained in a Criminal precedent.
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Secondly, the application of the criminal precedent must ensure
right and fair for each specific case.
Thirdly, applying the criminal precedent must ensure legal status.
This requires work .
Conclusion of Chapter 2
On the basis of studying the concept of "the precedent" according
to the different perspectives of some countries around the world
according to the Common Law system and Civil Law system, the
doctoral student has made concept of the criminal precedent, nature,

characteristics, role of the criminal precedent, theories on construction
and application of the criminal precedent with its own characteristics.
Through this, you can see the role and characteristics of the criminal
precedent and its role in the trial of criminal cases. Thereby, the
graduate student believes that criminal precedent has existed in the
legislative history of Vietnam. The issue of building and applying the
criminal precedent has the common characteristics of law-building and
application activities such as: building and applying a criminal
precedent of state power; is an activity that must comply with strict
forms and procedures prescribed by law; is a specific, specific
adjustment activity; is activity that requires creativity. In addition, the
construction and application of the criminal precedent also has principle
requirements, in order to ensure the effectiveness of the construction
and application of law in general and the application of the criminal
precedent in particular.
Chapter 3
PRACTICE OF BUILDING AND APPLYING THE CRIMINAL
PRECEDENT IN VIETNAM
3.1. Practical construction and application of the criminal
precedent
3.1.1. Practices to build and apply criminal precedent for the
period before 2015
The the precedent has been recognized as a source of law in the
history of Vietnamese law.
Pre -1975 period: Even during the French colonial period, the
precedent was considered a source of law, playing a relatively important
role in explaining and supplementing the law, based on the principle
documents of Administrative court or judicial court. By the feudal
period, the the precedent existed in the form of judgments, projections,
editions, orders of the king .

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In the period of the Northern progression to build socialism, there
are many documents acknowledging the existence of such law: Circular
No. 442 / TTg of January 19, 1955 of the Prime Minister.
The period from 1975 to before 2004, during this period, the
concept of the precedent was hardly used officially in legal books and
newspapers, but was only discussed in academic research .
From 2003 to before 2014 : In 2003, the Supreme People's Court
regularly selected and announced the cassation decisions of the Supreme
People's Court Judges or publicized the judgments in the manual. Judges on
many mass media channels as well as summarizing documents on annual
professional guidance. At this time, the use of the judgments that are
publicized in legal practice is still a reference only in the process of
researching and resolving cases that are not legal grounds for trial.
However, this is a seed for the recognition of precedents in Vietnam.
3.1.2. Practices to build and apply criminal precedent for the
period from 2015 up to now
Development of precedents in general, criminal precedent in
particular is one of the key tasks of judicial reform in our country today.
The National Assembly assigns the Supreme People's Court to carry out
this important task. To date, there have been 26 precedents published,
including 04 criminal precedents. Although the number of precedents
was promulgated modestly, it demonstrated the high political
determination of the Supreme People's Court in developing the case.
Since its publication, the first 26 precedents have actually come to life,
judged by the Judges, applied in practical practice and highly
appreciated by the public.
3.2. Evaluate practical construction and apply criminal

precedent
3.2.1. Achievements and causes in the construction and
application of the criminal precedent
* Achievements in building the precedent and preparing for the
application of the criminal precedent .
Firstly, the Party and the State have paid attention to leadership
and direction on developing lawsuits in general and criminal precedent
in particular. This is the guideline, the right direction is acknowledged
by the society.
Secondly, the Supreme People's Court has created the premises
for the recognition and application of general law and criminal
precedent in particular in Vietnam.
Thirdly, the policy of developing the legal case has been
institutionalized in the 2013 Constitution.
Fourthly, the Supreme People's Court has issued a process to
build a lawsuit in general, a criminal precedent in particular.
15


Fifthly, the Supreme People's Court has issued 04 criminal
precedent, contributing to completing gaps of the law in general and
criminal precedent in particular.
* Results achieved in preparation for the application of the
criminal precedent
Since the first the precedent has been published so far, according
to the survey results, criminal precedents have not been implemented in
the practical trial ( Appendix 05 ). However, the preparation of
conditions for the effective application of the criminal precedent in the
coming time is also the initial, very important achievements, as follows:
Firstly, develop guidelines to apply the the precedent.

Secondly, issue a Resolution guiding the writing of criminal
sentences.
Thirdly, the organization put content on the precedent into
training programs
Fourthly, organize a 3-year summation conference on the
construction and application of the precedent in Vietnam
* Causes of achievements
Firstly, the Party, the State and the Supreme People's Court have
been aware of the importance of the position and role of the general the
precedent, the criminal precedent in particular in the construction
practice and the application of law.
Secondly, the Supreme People's Court has actively and positively
implemented the Party and State's views on building precedents.
3.2.2. Limitations and causes in the construction and
application of the criminal precedent a
3.2.2.1. Limitations in the construction and application of the
criminal precedent
* General limitations of both the construction and application of
the criminal precedent
Firstly, the construction of the criminal precedent is still limited
in both quantity and quality.
Secondly, research activities on criminal precedents have not been
focused on implementation.
* Limited construction
Firstly, there is no agreement in the provisions of the Constitution
and the law on construction of the criminal precedents .
Secondly, there is no separate process for selecting, announcing
and applying the criminal precedents while the process of selection,
publication and application of precedents is generally too tight.
Thirdly, the quality of the judges' trial of criminal cases still exists

certain limitations on professional qualifications,
16


qualifications and professional qualities, which greatly affects the
quality of judgments. Criminal (source to develop criminal precedent).
Fourthly, the quality of writing judgments and decisions of courts
at all levels has some limitations.
* Restrictions on the application
The Criminal Procedure Code 2015 has not yet recognized the
application of the the precedent in trial but only recorded at Point d, Clause
2, Article 260 "The Judgment of the Trial Panel must analyze the evidences
determined to be guilty or not just determine not guilty, determine whether
the accused is guilty and if the accused is guilty, what is the point, clause,
article of the Criminal Code and other legal documents applied?,
aggravation, extenuating criminal liability and how to handle it. If the
accused is not guilty, the judgment must clearly state the grounds for
determining that the accused is not guilty and resolving the restoration of
their honor, legitimate rights and interests according to the provisions of
law; “And Point b Clause 3 Article 260 is" Summarize the content of the
case, decide in the first instance judgment; content of appeals and protests;
judgments of the Appellate Trial Panel, grounds for accepting or not
accepting appeals and protests; points, clauses and articles of the Criminal
Code and other legal documents which the Appellate Trial Panel shall base
on to settle the case; " .
3.2.2.2. Causes of limitations in the construction and application
of the criminal precedent
* The general cause of limitations in the construction and
application of the criminal precedent
The cause of the above limitation is that: Firstly, Vietnam is still

in the first phase of the experimental process of building and applying
the precedent, so there are limitations that are inevitable; secondly, the
theoretical research on the precedent in general and criminal precedent
in particular in Vietnam is still modest; Thirdly, the practice of
constructing and applying the criminal precedents still has unified
views. As a result of the application of common law, criminal
precedents in particular still have the above limitations.
* Cause of limitations in construction
In addition to the general causes of limitations in the formulation
and application of the criminal precedents as mentioned above, the
specific limitations are
Firstly, there has not been a separate Resolution on the process of
selecting criminal precedents, because criminal precedents have their
own characteristics.
Secondly, not defining specific criteria for the selection of the
sentence can become a the precedent.
17


Thirdly, currently the scope of the criminal precedent has not
been clearly defined (criminal precedent on the content and criminal
precedent on proceedings and civil liability in criminal precedents)
makes the lack of facilities in selection of the criminal precedent.
* Cause of limitation in application
Firstly, there are no mandatory regulations for criminal
precedents
Secondly, the application of current law is still limited due to the
limited number of the criminal precedents.
Thirdly, the skills of subjects applying the criminal precedents are
limited

Fourthly, in addition, the guidance on the application of the
precedent still has certain limitations, according to Resolution 03, the
the precedent in general, the criminal precedent in particular still has no
compulsory provisions.
Conclusion of Chapter 3
The Resolution No.03/2015/NQ -HDTP dated October 28, 2015
Regarding the process of selecting, announcing and applying the
precedent regulating the construction and development of precedents in
general, but no process has been developed. setting up and applying the
criminal precedent. The construction and application of the criminal
precedent in Vietnam today is still conducted through a very strict
process from reviewing, detecting, proposing and developing a
judgment to collecting opinions, private questioning, approving and
announcing legal proceedings according to the general process of the
resolution 03. The application of the criminal precedents must also
comply with the principles of the 03-judgment resolution to ensure
constitutionality, legality and security. ensuring uniform application in
the practical application of law. Practical research on the construction
and application of the precedent is important for doctoral researchers to
point out the characteristics and results of the formulation and
application of the criminal precedent in Vietnam today. On the basis of
analyzing the achievements and limitations, the causes of limited
achievements in the formulation and application of the criminal
precedent in Vietnam today, from which researchers can propose
suitable solutions. to improve the effectiveness of the formulation and
application of the criminal precedent to contribute to completing the
law, uniformly applying the criminal precedent and especially applying
the law in adjudication of the criminal precedents. In Vietnam today,
ensuring human rights, fair protection, justice.
18

Chapter 4
REQUIREMENTS AND QUALITY IMPROVEMENT
SOLUTIONS CONSTRUCTION AND APPLICATION OF
CRIMINAL PRECAUTIONS IN VIETNAM
4.1. Requires construction and development of the criminal
precedent
4.1.1. Request to unify the awareness of the policy of the Party,
State and the court system on the construction and application of the
criminal precedent
In the coming time, it is necessary to continue grasping the views
of the Party and the State on developing lawsuits in general and
criminal precedents in particular. Need to build and complete the legal
basis for the issuance of the criminal precedent. Specifically, it is
necessary to supplement the provisions of criminal procedural law on
the legal value and principles of application, the citation of the criminal
precedent in criminal trial. On that basis, to build a Resolution of the
Supreme People's Court Judges on the process of issuing and applying
the criminal precedents, in which specific criteria for decisions and
decisions are specified. Can be selected, recognized as Criminal
precedent. Selection process for criminal precedent.
4.1.2. Unifying the awareness of the criminal precedents in
practical application of the criminal precedent
This requirement aims to ensure the unity of awareness of the
criminal precedents in trial activities, in order to ensure the uniform
application of the precedent in general and the application of laws in
particular in judicial activities.
However, the criminal field has its own principles, especially the
principle of innocent speculation, the principle of socialist legislation.

The recognition of the the precedent is a source of the criminal
precedent that is not uniform. Therefore, recognizing the positive role of
the criminal precedent as well as using criminal precedent as a source of
law is still very new. Once a criminal precedent is recognized as a
criminal precedent source besides legal documents, there should be a
legal basis for this. There must be a change in thinking when applying
the criminal precedents to trial of criminal cases. It should be noted that
criminal precedent is the result of legislative and operational activities
that apply the law, in particular the trial of criminal cases of the Court.
In other words, it is the crystallization of theory and practice of law
application. So, the Supreme People's Court should provide professional
guidance in a way that requires the Judges, Assessors at all levels to
consult and cite criminal precedents as a secondary source of law when
19


making judgments on matters that the law writings are not clearly
defined, or actions en, circumstances also have different interpretations.
4.2. Solutions to improve construction quality, apply criminal
precedent
4.2.1. Raise awareness about some specific contents of the
criminal precedents
* Raise awareness of the criminal precedents
Firstly, consider the possibility of recognizing cases that create
mandatory rules of conduct as a new norm
Secondly, it is necessary to specify what is the content of the
criminal precedent and present it in the most honest way.
Thirdly, perceived value of the criminal precedent, applied to
adjudicate similar cases.
Fourthly, to raise the general awareness of the role of training,

compensation, scientific research at law, vocational training institutions
and Criminal precedent research institutions.
Fifthly, impact the perception of the criminal precedents on all
subjects in society to bring the the precedent into life.
4.2.2. Completing the provisions of the Constitution and
criminal precedent on the application of the criminal precedent
Firstly, it is necessary to amend the regulation on the jurisdiction
to explain the law in the 2013 Constitution.
Secondly, perfect criminal precedent in one of two directions:
(i) amending and supplementing Article 260 on criminal
precedents
(ii) or a written instruction explaining the provisions of Article
260 on the application of the criminal precedent.
Thirdly, it is necessary to complete the legal regulations on the
process of selection and publication of precedents.
4.2.3. Improving the quality of the judges in trial of criminal
cases at all levels
Firstly, when conducting a specific Criminal precedent trial, the
Judge will study the precedent judgments of similar cases.
Secondly, compliance with criminal precedent restricts
arbitrariness and negativity in the trial process in general, adjudication
of the criminal precedents in particular, increases the reputation of
judges and courts at all levels and increases. the solemnity of the
judgment or decision that has been enforced, promoting the justice of
the Judge.
Fourthly, there should be reasonable provisions on the term of the
Judge.
Thirdly, the Judge has the motivation to really improve the level,
in the process of understanding and studying the judgments, to study
20

legal science in a methodical and scientific way to identify and solve
Criminal judgments with new facts, acts or legal events.
4.2.4. Promulgating a separate process for building criminal
precedents
In the coming time, it is possible to refer to the following
methods to review and select the precedent in general and criminal
precedent in particular:
The first method, review and selection later.
The second method, choose now .
4.2.5. Studying and developing textbooks and documents on
criminal precedent in legal research and training establishments
* For legal scientific research activities, develop curriculum
materials for criminal precedents
Encouraging and motivating the authors with research topics, indepth research projects on the use of the precedent in general, criminal
precedent in particular in the training programs. This study will help
learners and researchers to approach and practice common learning
methods in advanced education, such as case studies. Through approaching
and studying these the precedent, learners have a better understanding of
theoretical knowledge, legal knowledge and legal regulations at the same
time through more self-study and advanced self-study activities.
jurisprudence thinking, skills to solve intensive practical problems from the
perspective of judges, lawyers, prosecutors ...
* For training and retraining of the criminal precedents
* Increasing the use of the precedent in law training programs at
university and postgraduate levels of law
* For professional training and retraining activities for Judges
Conclusion of Chapter 4
On the basis of fully grasping the Party's views and guidelines on

judicial reform, with proper awareness and high political determination,
the Party Committee of the Supreme People's Court Party actively and
positively Declaring the research and development of the Case
Development Project of the People's Court. Accordingly, the Supreme
People's Court issued the Resolution No. 03/2015 / NQ -HDTP dated
October 28, 2015 on the process of selecting, announcing and applying
the precedent. This process is common for the precedent in different
areas such as Criminal, Civil, Administrative ... However, in practice of
building and applying the criminal precedents, there are still
shortcomings in construction. setting up and applying the criminal
precedent in Vietnam today as the number of the criminal precedents is
still very limited, only 04 criminal precedents have been issued, besides
21


there are no criminal precedents in trial . To overcome these limitations, the
thesis proposes a number of solutions to improve the quality of
construction and apply the the precedent in general and criminal precedent
in particular. That is, raising awareness of the criminal precedents; focus on
legal research activities, improve the quality of professional training and
retraining on the precedent; improve the quality of trial and quality of
criminal judgments of courts at all levels; completing the provisions of law
on precedents and criminal precedents; promulgating separate procedures
for order, procedures and scope of selection, publication and application of
the criminal precedent.

22


CONCLUSION

1. The dissertation clarifies concepts, characteristics, roles and
processes of recognizing criminal precedents and experiences from a
number of countries under the Common law and Civil law system. i)
Common criminal is a the precedent, contains the arguments to explain and
clarify the behavior, circumstances are prescribed by the criminal precedent
in the judgment, deciding criminal has legal effect, be recruited and issued
according to the procedures prescribed by law, valid for uniform
application in trial of criminal cases with similar legal events later. ii) The
role of the criminal precedent: Firstly, the recognition of the criminal
precedents in trial contributes to the enhancement of the principle of
equality before the law; Monday, contributing to concretizing the meaning
of abstract criminal precedent provisions through explanation of laws;
Thirdly, ensure the stability of the criminal precedent through unified
interpretation and application of laws, iii) Experience in building and
applying the criminal precedents of Britain, America, France and Germany
to Vietnam : Firstly, acknowledge the role of the precedent in the legal
system. The precedent becomes an indispensable part to supplement and
support the legal system in these countries; Secondly, each country
recognizes the principles of applying the the precedent in accordance with
its legal system; Thirdly, many new requirements are imposed on the Judge
who has the authority to issue a the precedent and the Judge of the lower
courts uses the the precedent.
2. The dissertation has studied the theory of the criminal precedent,
Criminal precedent construction. On that basis, the dissertation analyzed
and evaluated the current situation of building and applying the criminal
precedents in Vietnam. In particular, focusing on clarifying the principle of
building and applying the criminal precedent, practice of building and
applying the criminal precedent in Vietnam today. Since then there are
assessments of achievements and limitations, the causes of achievements
and limitations in the construction and application of the criminal precedent

in Vietnam today. Giving remedy views and solutions in the formulation
and application of the criminal precedent to improve the
effectiveness of the criminal precedents to contribute to the uniform

application of the criminal precedent in trial of criminal cases. i)
Principles of construction: Firstly, the principle of the legal
meaning of precedents in the Vietnamese legal system; Secondly, the
principle of the subject of sample judgments to develop a the precedent;
Thirdly, the principle of selection criteria and procedures for