One of the important things to understand about a country before examining specific legal elements is the sources of law for that country. In the United States, for example, the law arises out of the constitution. In Vietnam, the same is true. The constitution serves as the primary source of law finding its power in the people.
Treaty is considered the next source of law with international agreements—which are entered into by the National Assembly—having greater authority than laws. I stress the National Assembly’s role in treaty making as it is the highest body under the constitution and constitutes the supreme power representing the people. It is the National Assembly who creates the constitution and makes treaties. It is also the National Assembly which makes laws.
The laws passed by the National Assembly are considered the regulations that govern the country. They are in general general and are left open to further clarification by the government—which is a source of laws—and administrative entities. There is a list of law givers in descending order that is about twenty places long—and I won’t include it here—but it stretches from the laws of the National Assembly to the Decrees of the National Assembly to the decisioins of the government all the way down to the administrative decisions of the local people’s assembly.
All of these elements come together to act as increasingly specific regulation for behaviors and activities of the state. There is private and public law—civil and criminal—as in most civil law countries. One thing, though, that was discovered in England under the common law, was the inability to legislate for every possible combination of events. No matter how specific the legislation, there will inevitably be something that is not covered and there will be holes and gaps that need to be filled.
The Civil Code provides additional sources of law to fill those gaps.
First and foremost—and this applies only in private law—the agreement of the parties is supreme. It is the first place to which agencies and courts will look for interpreation. But failing contract and failing law, what then?
After contract comes custom. Custom is defined as the “rules of conduct obvious to define rights and obligations of persons in specific civil relations, forming and repeating in a long time, recognized and applying generally in a region, race, or a community.” This is the first thing to which the courts will look for a source of law.
If custom fails, then the courts will look to simlar laws. These “similar” laws are not directly applicable, but are analagous to the situation under question. Here, the court is tasked with finding similarities or differences between the facts of a given situation and the regulations covering a situation similar to it. This is an imperfect science and there is little evidence that it has been successfully applied by the courts, but it is the law.
Only after this analogy is applied, does precedent come into play. Precedent is the consideration of court cases as decided by the courts. A few years ago the Supreme Court issued an additional law that increased the power of precedent, as such, precedent selected by the Supreme Court and published as such is considered more valuable than the basic decisions of courts. It is a tricky area and its interpretation is one with which the courts are still unfamiliar.
After precedent comes the principle of justice. This ambiguous term of art is undefined. It is more of a feeling than a rule of law. For courts, a sense of justice—one defined by the culture and history of Vietnam—is vital. Failing all else, the courts are to reason, and in their reason come up with the best, most just decision possible.
There is one final source of law that is not included in the laws or the constitution, and that is the administrator. On more than one occasion we have come across situations that—despite all of the options for construing legislation—defy definition. Rather than wait for a decision of the court, or of the Government, we call the local administrator and find out how they apply the law. This we consider to be authoritative interpretation as it is the way things work on the ground and in reality. An important element of understanding for the practice of law.
With this list of legal sources in Vietnam, it is now possible to begin to interpret the law itself . . . which is the job of the attorney and of the court. Too, it hopefully is helpful In understanding that the majority of laws in Vietnam are interpreted by other laws rather than by precedent, though eventually precedent and other elements may come into play. They remain difficult of application.