Nghị quyết 04/2019/NQ-HĐTP quy trình lựa chọn công bố và áp dụng án lệ

RESOLUTION

ON PROCESS FOR SELECTING, PUBLISHING AND ADOPTING PRECEDENTS

THE JUDICIAL COUNCIL OF THE SUPREME PEOPLE’S COURT

Pursuant to the Law on organization of People’s Courtdated November 24,2014;

Pursuant to the Law on promulgation of legislative documentsdated June22,2015;

Upon the consensus of the Chief Procurator of the Supreme People’s Procuracy and the Minister of Justice.

RESOLVES:

Article 1. Precedents

Precedents are arguments and rulings written on effective judgments or decisions (hereinafter referred to as judgment) of the courts that are selected by the Judicial Council of the Supreme People’s Court and published by the Chief Justice of the Supreme People’s Court in order for other courts to study and adopt them when deciding later cases.

Article 2. Criteria for selecting precedents

Each precedent to be selected must satisfy all criteria below:

1. Containing arguments to clarify the provisions of the law which have differing interpretations, analyze and explain legal issues or events, and legal principles and guidelines to be followed in a specific situation;;

2. Having normative value;

3. Ensuring the consistency of law in adjudication.

Article 3.Proposingjudgments to serve as precedents

1. Every individual, agency and organization may send proposallegally valid judgments and decisions of the courts containing arguments and rulingsthat satisfy all criteria prescribed in Article 2 of this Resolution to the Supreme People’s Courtto serve as precedents.

2.TheCourts have the responsibility to reviewand select legally enforceable judgments and decisions of the courts which contain the arguments and rulings meeting the criteria guided in Article 2 of this Resolution and send to the Supreme People s Court to consider andto serve as precedents.

Article 4. Consultation about proposed judgments

1. Proposed judgments and decisionswhichare selected and developed intoprecedents or draft precedentsmust be posted on the Supreme People s Court s electronic portalso thatconcernedcourts, experts, scientists, practitioners, individuals, agencies and organizationscouldcomment, except for casesstatedat Points b, c and d, Clause 2, Article 6 of this Resolution.

Comments are sent to the Supreme People s Court. Time for collecting comments is 30 days from the date of posting.

2. On the basis of the results of public comments on the proposed judgments and decisions, developing into aprecedent or draft precedent,the Chief Justice of the Supreme People’s Court shall consider collecting opinions from Precedent advisory board. The gathering of opinions of the from Precedent advisory board shall comply with the guidance in Clauses 2 and 3, Article 5 of this Resolution.

Article 5. Precedent advisory board

1. The Precedent advisory board shall be established by the Chief Justice of the Supreme People’s Courtandinclude at least09 members. The Board President is the President of Science Council of the Supreme People’s Court,01 Board Deputy President is the Deputy President of Science Council of the Supreme People’s Courtandothermembers are representatives of the Ministry of Justice, the Supreme People’s Procuracy, the Vietnam Bar Federation, leading legal specialists and scientists and representatives of relevant agencies and organizationsand 01 leader representative of the Department of Legislation and Science management (also Board Secretary).

With regard to a criminal precedent, the composition of the Precedent advisory board shall include therepresentatives of Investigation Agency of the Ministry of Public Security, the Ministry of Defense or the Supreme People s Procuracy.

2. The Precedent advisory board must discuss and offer opinionsonthe contents of proposed judgmentsto serve as precedents.

3.Obtaining opinions ofthe Precedent advisory board shall be conducted through direct or written discussion sessions. the Board President shall shall decide on the method of gathering opinions of the council members and report to the Chief Justice of the Supreme People’s Court the consultancy results.

Article 6. Ratification of precedents

1.The Chief Justice of the Supreme People’s Court shall hold a meeting of all Judicial Council of the Supreme People’s Court to discuss and vote on ratification of the precedents.

2.The precedent is considered ratified when it falls into one of the following cases:

a) Developed from legally enforceable judgments and decisions of the Court and consulted under the guidance in Article 4 and Article 5 of this Resolution;

b) Proposed by the Supreme People s Court Judges;

c) Proposed by the Committee of the Supreme People s Court Judges;

d) Selected by the Judicial Council of the Supreme People’s Court for trial of cassation review and retrial.

3. A meeting of the Judicial Council of the Supreme People’s Court is considered valid when it is attended by at least 2/3 of member of the Council of Justices; a decision of the Judicial Council of the Supreme People’s Court is ratified when it is voted for by more than half of the participating members.

4. The voting result of precedent ratification shall be recorded in the meeting minutes of the Council of Justices and served as the basis for the Chief Justice of the Supreme People’s Court to publish precedents.

Article 7. Publication of precedents

1. When a precedent is ratified by the Judicial Council of the Supreme People’s Court, the Chief Justice of the Supreme People’s Court shall publish the precedent.

2. Each precedent to be published shall contain:

a)Number, name of precedent;

b)Number, name of the judgment and decision of the Court whose contents are developed into a precedent;

c)Legal situations, legal solutions inprecedent;

d) Legal provisions related toprecedent;

đ) Catchwords oflegal situations, legal solutions inprecedent;

e) A recital of the facts in the case and ruling of the court related to the precedent;

g)Content of the precedent.

3. The precedent shall be published in the Magazine of People’s Court and the website of the Supreme People’s Court, sent to the courtsand units of the Supreme People s Court.and published in thecollection of precedents.

Article 8.Adopting precedents in adjudication

1. Each precedent shall be studied and adopted in adjudication after30days from the date on which it is published.

2. The judges and the jurors must study and adopt the precedent to settle similar cases so that the two caseswhichhad similar facts to one another shall have the same settlement results. If the case has the same legal situation but the Court does not apply the precedent, they must provide explanation in the judgment.

3. In case the Court applies theprecedentto resolve the case, the number, the name of theprecedent, the legal situation, the legal solution in theprecedentand the legal situation of the case being resolved must be cited,analyzedin the "Judgment of the Court" section;depending on the specific case, it is possible to quote the whole or part of the contents of theprecedentto clarify the Court s point of view in the trial and solve the same case.

Article9.Replacement of precedents

1. Theprecedentis automatically dismissed in case theprecedentis no longer appropriate due to a change of law.

2. The Judicial Council of the Supreme People’s Court shall consider and decide the abolishment of theprecedentin one of the following cases:

a)The precedentis no longer appropriate due to changes in the situation;

b) The verdict or decision with the selected content developed into the precedenthas been canceled, corrected in whole or partrelating to the precedent.

Article10.Procedures for abolishment ofprecedents

1. Individuals, agencies,organizationsandthe Court shall propose to the Supreme People s Court to consider the abolishment of theprecedentwhenthe precedent is one ofcasesstated inClause 2, Article 9 of this Resolution.

2. The Courtwhichhas canceled or fixed the judgment or decision of the caseasguided at Point b, Clause 2, Article 9 of this Resolution,mustsend a report attached to the decision on cancellation or correction to the Supreme People s Court for considerationofabolishment ofthe case within 5 working days from the date of issuance of the decision.

3. Within 30 days from the date of receiving petitions and reports under the guidance in Clauses 1 and 2 of this Article, theChiefJudge of the Supreme People s Courtshallorganize a plenary session of the Judicial Council of the Supreme People’s Courttoconsiderthe abolishment oftheprecedent.

The Council of Judges of the Supreme People s Court shall meet to vote on the abolishment of the case according to the principle guided in Clause 3, Article 6 of this Resolution.

On the basis of the voting results of the Council of Judges of the Supreme People s Court, clearly stating the time when the precedent is dismissed. Notice of abolishment of precedents is posted on the electronic portal of the Supreme People s Court; sent to the Courts and units of the Supreme People s Court.

Article11.Forms

Attached to this Resolution are the following forms:

1. Form 01-AL The minutes of the meetingon selection and ratification of the precedent;

2. Form 02-AL Decision on the publication ofthe precedent;

3. Form 03-ALNotice of abolishment of the precedent.

Article 10. Effect

1. This Resolution is ratified onMay23, 2019by the Judicial Council of the Supreme People’s Court and comes into force fromJuly15, 2019.

2. This resolution replaces Resolution No. 03/2015/NQ-HDTP dated October 28, 2015 of the Supreme People s Court Judges on the processselecting, publishing and adopting precedents.

3. The Department of Legislation and Scientific Management is the standing unit to advise and assist the Chief Justice of the Supreme People s Court, the Supreme People s Court Judges in the review, selection, publication andapplication of the precedents.

4. In the course of implementation, ifthere arisesanydifficulties thatneed to be explained or supplemented,they should be reportedto the Supreme People s Court for further explanation or guidance.

Form01-AL

(Issued together with Resolution No. 04/2019 / NQ-HDTP dated June 18, 2019 of the Council of Supreme People s Court Judges)

MINUTES OF MEETING

Onselection and ratification of the precedent

- Pursuant to the Law on organization of People’s Courtdated November 24,2014;

- Pursuant to the Resolution No. 04/2019/NQ-HĐTP dated June 18, 2019 bythe Judicial Council of the Supreme People’s Court on Process for selecting, publishing and adopting precedents.

Date ... month ... year …(1)The Council of Judges of the Supreme People s Court conducts a meeting to select andratify the precedent.

I.Participants:

- …(2)member(s) of the Council of Judges of the Supreme People s Court.

-Chairman:................................................................................................................

-Report Writer:..........................................................................................................

II.Content of the meeting:(3)

......................................................................................................................................

......................................................................................................................................

......................................................................................................................................

III.Results of voting on precedent ratification:(4)

After discussion, the Council of Judges conducted votingwiththe resultsas follows:

- Number of members agreeing toratify the precedent:.....................................

- Number of membersdisagreeing toratify the precedent:..................................

-Others:......................................................................................................................

The session ends at...hour...date...month...year...

___________________

(1)Writedownthe date, month and yearon whichthe Council of Judges of the Supreme People s Court conducts the meeting.

(2)Write down the number of members ofthe Council of Judges of the Supreme People s Courtattendingthe meeting.

(3)Writedownthe content of speech and discussion at the meeting

(4)Record the voting results for eachprecedent.

Form02-AL

(Issued together with Resolution No. 04/2019 / NQ-HDTP dated June 18, 2019 of the Council of Supreme People s Court Judges)

DECISION

On the publication of the precedent

CHIEF JUSTICE OF THE SUPREME PEOPLE’S COURT

- Pursuant to the Law on organization of People’s Courtdated November 24,2014;

- Pursuant to the Resolution No. 04/2019/NQ-HĐTP dated June 18, 2019 bythe Judicial Council of the Supreme People’s Court on Process for selecting, publishing and adopting precedents;

-Pursuant to the results of selecting and voting on precedent ratification ofthe Council of Judges of the Supreme People s Courtdated...month...year....

DECIDES:

Article 1.Declare…(1)precedent(s)have been ratified by the Council of Judges of the Supreme People s Court(as precedents attached).

Article2.The People s Courts and Military Courts have the responsibility to study and applyprecedentsin adjudicationfromthe date ………………..(2)

Article3.This decision takes effect from the date of signing.

________________

(1)Write down the number of ratified precedents.

(2)Determined according to the guidance in Clause 1, Article 8 of the Resolution.

Form03-AL

(Issued together with Resolution No. 04/2019 / NQ-HDTP dated June 18, 2019 of the Council of Supreme People s Court Judges)

NOTICE

On abolishment of precedent

CHIEF JUSTICE OF THE SUPREME PEOPLE’S COURT

- Pursuant to the Law on organization of People’s Courtdated November 24,2014;

- Pursuant to the Resolution No. 04/2019/NQ-HĐTP dated June 18, 2019 bythe Judicial Council of the Supreme People’s Court on Process for selecting, publishing and adopting precedents;

-Pursuant to the results of discussion and voting on precedent ratification ofthe Council of Judges of the Supreme People s Courtdated...month...year....

NOTIFIES:

I.Abolishing the following precedent(s):(1)

.....................................................................................................................................

.....................................................................................................................................

II.The precedent(s) are abolished from date...month...year...

___________________

(1)Write down the number and name of the abolished precedent.