Nghị quyết 04/2019/NQ-HĐTP về quy trình lựa chọn, công bố và áp dụng án lệ do Hội đồng Thẩm phán Tòa án nhân dân tối cao ban hành

RESOLUTION

On process for selecting, publishing and applying precedents

COUNCIL OF JUSTICES OF THE SUPREME PEOPLE’S COURT

Pursuant to the Law on organization of People’s Court dated November 24th, 2014;

Pursuant to the Law on promulgation of legislative documents dated June 22, 2015;

Upon the consensus of the Chief Procurator of People's Procuracy and the Minister of Justice,

HEREBY RESOLVES:

Article 1. Precedents

A precedent means arguments and rulings in a legally effective judgment or decision (hereinafter referred to as “judgment") of the courts that are selected by the Council of Justices 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 apply them when deciding later cases.

Article 2. Criteria for selecting precedents

The precedents to be selected must satisfy all the criteria below:

1. 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;

2. Having normative value;

3. Ensuring the consistency of law in adjudication.

Article 3. Proposing judgments to be developed into precedents

1. Individuals, agencies and organizations can send legally effective judgments of the Court containing the arguments and/or rulings that satisfy the criteria specified in Article 2 of this Resolution to the Supreme People’s Court for consideration and developing into precedents.

2.  Courts must review and find their legally effective judgments containing the arguments and/or rulings that satisfy the criteria specified in Article 2 of this Resolution and send them to the Supreme People’s Court for consideration and developing into precedents.

Article 4. Seeking consultation on judgments developed into precedents

1. The judgment proposed to be developed into precedents, contents proposed as precedents and draft precedents must be uploaded on the website of the Supreme People’s Court so that the concerned Courts, specialists, scientists, practical activists, individuals, agencies and organizations can provide their consultation, except for cases specified in Point b, c and d Clause 2 Article 6 of this Resolution.

The consultation shall be sent to the Supreme People’s Court. The consultation period is 30 days from the date of the upload.

2. Based on the broad consultation about the judgments proposed to be developed into precedents, contents proposed as precedents and draft precedents, the Chief Justice of the Supreme People’s Court will consider seeking consultation with the Precedent Advisory Board. The consultation with the Precedent Advisory Board shall conform with guidelines specified in Clause 2 and Clause 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 Court and composed of at least 09 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 Court, other members are representatives of the Ministry of Justice, the People’s Supreme Procuracy, the Vietnam Bar Federation, representatives of relevant agencies, organizations, legal specialists and 01 senior representatives of Department of Legislation and Science management of the Supreme People’s Court (who is also the Board Secretary).

With regard to criminal precedent, the composition of the Precedent Advisory Board shall include the representatives of the Ministry of Public Security, the Ministry of National Defense or the People’s Supreme Procuracy.

2. The Precedent Advisory Board must discuss and offer opinions about the judgments proposed to be developed into precedents, contents proposed as precedents and draft precedents.

3. The consultation held by the Precedent Advisory Board shall be in form of a meeting or in writing. The President of the Precedent Advisory Board shall determine the methods of collecting feedback of the members and report the consultation responses to the Chief Justice of the Supreme People’s Court.

Article 6. Ratification of precedents

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

2. The precedent is to be considered ratified if it falls in any of the following circumstances:

a) It is developed from a legally effective judgment of the Court and it has been consulted on according to guidelines specified in Article 4 and Article 5 of this Resolution;

b) It is proposed by the Justices of the Supreme People’s Court;

c) It is proposed by the Boards of Justices of the Superior People’s Courts;

d) It is selected by the Council of Justices of the Supreme People’s Court during reopening procedure and cassation procedure.

3. A meeting of the Council of Justices of the Supreme People's Court is considered valid when it is attended by at least two-third of members of the Council of Justices; a decision of the Council of Justices 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. The Chief Justice of the Supreme People’s Court shall issue a decision to publish the precedents ratified by the Council of Justices of the Supreme People’s Court.

2. A published precedent must contain:

a) Number and name of the precedent;

b) Number, name of the judgment of the court proposed to be developed into precedent;

c) Legal cases and solutions in the precedent;

d) Provisions of the law relating the precedent;

dd) Keywords of legal cases and solutions in the precedent;

e) Details of the case and ruling of the Court relating the precedent;

g) Contents of the precedent.

3. The precedents shall be uploaded on the website of the Supreme People’s Court; sent to Courts, units affiliated to the Supreme People’s Court and published in the law reports/reporters.

Article 8. Applying precedents in adjudication

1. Each precedent shall be studied and applied in adjudication after 30 days from the date on which it is published.

2. The judges and the lay judges must study and apply the precedent to settle similar cases so that the two cases had similar facts to one another shall have the same settlement results. If the precedent is not applied in a case with similar facts, the Courts must provide explanation in the judgment.

3. If a precedent is used, name of the precedent, legal cases, legal solutions in the precedent and legal case of the case being adjudicated must be cited and analysed in the section of “The Court’s remark”; depending on specific situations, the whole or part of the precedent can be cited to clarify the point of the Courts while adjudicating, handling similar cases.

Article 9. Annulment of precedents

1. Precedents will be annulled if they are no longer suitable due to the changes of the lawsoft.

2. The Council of Justices of Supreme People’s Court will consider and decide on the annulment of precedent when:

a) The precedent is no longer suitable due to other changes;

b) The judgment on which the precedent is based has been annulled, entirely amended or only the section related to the precedent of the judgment is amended.

Article 10. Precedent annulling procedure

1. Individuals, agencies, organizations and Courts must propose the Supreme People’s Court to consider the annulment of precedent upon discovering a precedent which falls into any of the provisions specified in Clause 2 Article 9 of this Resolution.

2. The Court who has annulled or amended the judgment specified in Point b Clause 2 Article 9 of this Resolution must send a report together with the decision to annul or amend the judgment to the Supreme People’s Court for consideration of annulment of precedent within 05 working days from the day in which the decision is made.

3. Within 30 days from the day on which the proposition, report specified in Clause 1, Clause 2 of this Article is received, the Chief Justice of the Supreme People’s Court must hold a general meeting of Council of Justices of Supreme People’s Court to consider the annulment of the precedent.

The Council of Justices of the Supreme People’s Court shall vote on the annulment of precedent according to guidelines specified in Clause 3 Article 6 of this Resolution.

Based on the voting results of the Council of Justices of the Supreme People’s Court, the Chief Justice of Supreme People’s Court shall declare the annulment of precedent and specify the date on which the precedent is annulled. The precedent annulment declaration shall be uploaded on the website of the Supreme People’s Court; sent to Courts, units affiliated to the Supreme People’s Court.

Article 11. Forms

Issued together with this Resolution are:

1. Form 01-AL The meeting minutes of selection and ratification of precedents;

2. Form 02-AL Decision on publication of the precedents;

3. Form 03-AL Announcement about annulment of precedents.

Article 12. Entry into force

1. This Resolution has been approved by the Council of Justices of the Supreme People’s Court on 23^rd of May, 2019 and will come into force from July 15, 2019.

2. This Resolution supersedes Resolution No. 03/2015/NQ-HDTP dated October 28, 2015 of the Council of Justices of Supreme People’s Court on the process for selecting, publishing and applying precedents.

3. Assign the Department of Legislative and Science management to be the standing consultants assisting the Chief Justice of the Supreme People’s Court, the Council of Justices of the Supreme People’s Court in inspecting, selecting, publishing and applying precedent.

4. Difficulties that arise during the implementation of this Resolution should be reported to the Supreme People’s Court for consideration.

Form 01-AL

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

Meeting Minutes

Selection and ratification of precedents

- Pursuant to Article 22 of the Law on organization of People’s Court dated November 24th, 2014;

- Pursuant to Resolution No.04/2019/NQ-HDTP dated June 18, 2019 of the Council of Justices of Supreme People’s Court on the process for selecting, publishing and applying precedents.

Date…..Month…..year……⁽¹⁾ the Council of Justices of the Supreme People’s Court holds a meeting to select and ratify precedents.

The meeting composition:

- Participants …..⁽²⁾ members of the Council of Justices of the Supreme People’s Court.

- Chaired by: ………………………………………………………………………………….

- Recorder: ………………………………………………………………………..

II.  Meeting contents: ⁽³⁾

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

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

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III. Precedent ratification vote results: ⁽⁴⁾

After discussion, the Council of Justices has voted and the results are as follows:

- The number of members voting for the precedents:…………………………………………………..

- The number of members voting against the precedents:…………………………………………………..

- Other opinions: ………………………………………………………………………………………….

The meeting concluded at …….h……, day……..month…….year………

___________________

⁽¹⁾ Specify the date on which the Council of Justices of Supreme People’s Court holds the meeting.

⁽²⁾ Specify the number of members of the Council of Justices of Supreme People’s Court joining the meeting.

⁽³⁾ Record the contents of opinions and discussions at the meeting.

⁽⁴⁾ Record the vote results of each precedent.

Form 02-AL

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

Decision

On publishing precedents

The Chief Justice of the Supreme People’s Court

- Pursuant to Article 27 of the Law on organization of People’s Court dated November 24th, 2014;

- Pursuant to Resolution No.04/2019/NQ-HDTP dated June 18, 2019 of the Council of Justices of Supreme People’s Court on the process for selecting, publishing and applying precedents;

- Based on the selection, vote results to ratify the precedent of the Council of Justices of the Supreme People’s Court on day…….month…..year……,

HEREBY DECIDES

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

Article 2. The People’s Courts and Military Courts must study and apply the precedents in adjudication from ……………..⁽²⁾

Article 3. This Decision comes into effect from the day of signing.

________________

⁽¹⁾ Specify the number of ratified precedents.

 ⁽²⁾ To be determined as specified in Clause 1 Article 8 of the Resolution.

Form 03-AL

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

announcement

On precedent annulment

THE CHIEF JUSTICE OF THE SUPREME PEOPLE’S COURT

- Pursuant to Article 27 of the Law on organization of People’s Court dated November 24th, 2014;

- Pursuant to Resolution No.04/2019/NQ-HDTP dated June 18, 2019 of the Council of Justices of Supreme People’s Court on the process for selecting, publishing and applying precedents;

- Based on the discussion, vote results to annul the precedent of the Council of Justices of the Supreme People’s Court on day…….month…..year……,

Hereby announces:

Annul the following precedent(s): ⁽¹⁾

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

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

II. The precedent(s) will be annulled from day….month…..year…..

___________________

 ⁽¹⁾ Specify the number and name of the annulled precedent(s).