FACULTY OF LAW, LUND UNIVERSITY HANOI LAW UNIVERSITY JOINT DOCTORAL PROGRAM NGUYEN VAN NAM THE THEORY AND PRACTICE OF PRECEDENT IN ENGLAND, THE UNITED STATES OF AMERICA, FRANCE, GERMANY, AND RECOMMENDATIONS FOR VIETNAM Legal Field : International Law and Comparative Law Code:62 38 60 01 Supervisors : 1. Lê Minh Tam 2. Michael Bogdan DOCTORAL DISSERTATION IN LAW TRUNG TAM THONG TIN THỰ \ TRUONG ĐẠI HOC LUẬT HA K¿' ‡ PHÒNG DOC ALINK LÊN 08: rj ACKNOWLEDGEMENTS To accomplish this doctoral dissertation, I would like to express my sincere thanks to all organizations, individuals and family members who have helped and facilitated my research tasks for 5 years ( since 2006 to 2011). Ï express my deepest gratitude to my two supervisor professors.
They are Prf. Michael Bogdan (Faculty of Law, University of Lund , Sweden) and Prof. Le Minh Tam (Hanoi Law University). Professor Le Minh Tam always encouraged me to develop scientific ideas in the dissertation.
Professor Michael Bogdan was very enthusiastic to guide me to carry out my research for my dissertation. In the research process I learned a lot from my two supervisors. For Professor Michael Bogdan, I really learned a lot from him about how to use English in legal research, because of my doctoral dissertation was written in both English and Vietnamese. I understood that the enthusiasm and perceptive comments of Professor Michael Bogdan have helped me mature a lot in using English for my dissertation.
Professor Le Minh Tam gave me some suggestions which were very practical and versatile options on translating my dissertation from English into Vietnamese. I am extremely grateful to the help of teachers, faculty, and staff of Hanoi Law University. Without their help I would encounter many difficulties in the implementation of the research for my dissertation. I really thank to all insightful comments of Prof.
Nguyen Van Dong, Prof. Thai Vinh Thang, Prof. Nguyen Minh Doan, Dr. Nguyen Quoc Hoan, and Dr.
To Van Hoa. I alsp thank Dr. Nguyen Thi Van Anh, the director of the Comparative Law Center, Hanoi Law University gave special chances to me to participate in teaching and scientific exchange on comparative law at Hanoi Law University. During the course of doing researches for my dissertation, I received help and support from the board of directors of the project “ Strengthening Legal Education in Viet Nam funded by the Swedish International Development Cooperation Agency (S¡ida)”.
I would like to say thank you to Prof. Le Minh Tam, Prof. Le Thi Son, Prof. Vu Thi Kim Phung.
I am grateful for the thoughtful enthusiasm of LLM. Duong Thi Hien, MA. Cu Thi Thuy Trang, who are working at the International Cooperation Department of Ha Noi Law University. I would also like to thank you sincerely to those colleagues and other Phd candidates of the joint doctoral program under the frame of the project of Strengthening Legal Education in Viet Nam funded by Sida.
I especially thank the Sida-funded budget who sponsored for my study and research abroad according to the doctoral training programs. To complete my doctoral dissertation, I was given chances to study and research in Faculty of Law, Lund University. Studying and participating in scientific activities at the Faculty of Law, Lund University was lucky and very happy for my life. The help of professors, lecturers, library staffs and the members of the Faculty of Law in Lund have contributed significantly to the completion of my doctoral dissertation.
I would like to especially thank those professors who are member of the Faculty of Law-Lund. They are Prof. Bengt Lundell, Prof. Lars Göran Malmberg, Prof.
Christina Moéll, Prof. Christian Hathén Prof. Kjell A Modéer, Prof. Trasman Per Ole, Prof.
Hans Heinrich Vogel, Prof. Michael Bogdan, Prof. I am grateful for the enthusiasm of the librarian Anna Wiberg and others who helped me for searching materials used for my doctoral dissertation. Contribution to the completion of my dissertation, I would like to thank Max Planck Institute for Comparative and International Private Law, Hamburg, the Federal Republic of Germany has created good conditions for me to find reading materials and writing my dissertation at this institute (from January to April 2008).
Much of the content of this dissertation related to the theory of precedent in the common law was written during the time of my study at Suffolk Law School), Boston, Mass. I would like especially to thank Professor. Bernard Ortwein and Prof. Michael Avery who were extremely enthusiastic guided and answered my questions about American law.
I also express my sincere thanks to the help of Jonathan D. Messinger, American Lawyer and his family during my study in Boston. Messinger, who enthusiastically explained, discussing and helping me with practical approaches applied in the case of the U. Perhaps it would be difficult for me to write about practices of precedent in American law in my dissertation if I did not have the opportunity to study in Boston.
Research on practices of Vietnamese People’ Supreme Court, I would like to express my sincere thanks to the enthusiastic help of judge Nguyen Van Cuong, deputy director of the Institute for Judicial Science of the Supreme People's Court. It can be said to be exchanged and done research collaboration with TS. Nguyen Van Cuong has helped me to get practical and useful information for my discussion about precedent in Vietnamese law and also recommendation for Vietnam to adopt a proper doctrine of precedent. I would like to express my deep gratitude to my parents, my wife and my two sons, my sisters and my brothers.
They all supported my research for accomplishing my dissertation on time. Last but not least, I would like to express my gratitude to leaders the Academy of People's Security, my colleagues and the dean of my law faculty of the Academy of People's Security. They helped me to combine my teaching and doing research for my dissertation during the past 5 years. This dissertation is written in both English and Vietnamese.
Therefore, the author of the thesis will be hard to avoid the limitations of language expressing the translation thesis. Thank you for comments from readers. Hanoi, March 10,2011 iii Table of Contents page Chapter 1 Introduction | Background em—7Ã-t.DAw—'bs WC~Ó+—aw\n Purposes Limitation Research Methods Materials Outline of the Research Part I. Theory Of Precedent Chapter 2.
A General Concept of Precedent 10 2.1 Concept of precedent 10 22 Ideology of Judicial Decision — Making 13 a ye Ideology of Bound Judicial Decision-Making 13 FR Ideology Of Free Judicial Decision-Making 15 RE Ideology of Legal And Rational Judicial Decision-Making 16 Chapter 3. Theory Of Precedent In The Common Law System 18 aA Introduction 18 a2 The Traditional Concept Of Precedent 19 3.3 The Positivist Theory Of Precedent 20 3.4 American Legal Realism 21 i Why Is Precedent Followed By Judges 23 Chapter 4. Theory Of Precedent In The Civil Law System 23 4.2 The Historical School In Germany Zs 4.3 The Positivist Theory Of Precedent 26 aod Theory Of Precedent In France 27 Part II Precedent in The Common law systems 29 Chapter 5 Precedent in The English Legal System 2 2.] Introduction To The English Common Law 29 2 The Overview of the English Judiciary 31 Suối Introduction 31 TC Hierarchy of English Courts ( Diagram No 1) 32 3.3 The English Doctrine of Precedent 35 ash The Concept of Precedent in English law 35 5.2 What Does Constitute A precedent In English law 35 5:33 The Ratio Decidendi and Obiter 38 5.4 Persuasive Authority of Precedents 42 Tu Overruling Precedent 44 5.4 The Operation of Stare Decisis in English judiciary 46 5.1 The House of Lords 46 5.2 The Court Of Appeal 48 5.3 The High Court 50 5.3 Precedent and Legal principles 51 5.6 The Role of Precedent in Legal Education in England 32 a The Law Reports in England 53 Chapter 6 Precedent In The American Legal System 56 6.1 Introduction To The American Legal System 56 6.2 The American Judiciary 58 6.1 The Characteristic of The U.2 The Hierarchy of The Federal Court System 60 6.3 An Overview About The State Court System 63 6.3 The American Doctrine of Precedent 64 6.1 American Common Law Tradition 64 6.2 The American Attitudes to Precedent 66 6.3 Concept of Precedent ( Stare decisis) 69 6.4 Operation of Doctrine of Precedent in The State Court System 74 6. Operation of Precedent in New York Court System 74 6.
Examples for Not Following Precedent of the New York State Court of 76 Appeal 6.5 Precedents in Constitutional Issues 78 63.1 Upholding Stare Decisis 78 6.1 Rationale for Overruling Precedent 8] 6.22 Examples of Overruling Precedent of the U.6 Precedent in Interpreting Statutes 84 6.7 A Role of Legal Education in the U.8 Law Reports In The U. 89 Part III Precedent in The Civil Law System Chapter 7 Precedent in The French Legal System 91 VÀ| Theory of Precedent in French Law 91 72 Non-binding Precedent in French Law 94 12 Precedent in Different Areas of Law 95 7.4 An Overview The French Court System 97 7.2 Hierarchy of French Court System 97 7.1 The Judicial Court System 97 7.2 The Administrative Court System 101 75 Practice of Precedent in The French Court System 103 13.1 Example of Precedent of the Cour de Cassation 103 pe Example of Precedents of the Conseil d'Etat 107 7. The Role of precedent in French Legal Education 109 aa Publishing Judgment of French Courts 11] ii Chapter 8 Precedent In The German Legal System Theory of Precedent in The German Law 113 CoGOotate—Wh German Concept of Precedent 113 Arguments In Favour of Precedent Based Legislative Laws 115 The Role of Precedent in Different Branches of Law 118 The German Court System 120 Practice of Precedents in The German Court System 123 8.1 Precedent of the German Federal Constitutional Court 123 8.1 Formal Bindingness of Decisions of the German Federal Constitutional 123 Court 8.2 Overruling Precedent of the Federal Constitutional Court 127 2.3 The Dissenting Opinion of The Federal Constitutional Court 127 8.4 Example of Precedents of The Federal Constitutional Court 129 8.1 Examples of Precedents of the Federal Constitutional Court in the Judicial 129 Review of Statutory Laws 8.2 Example of Decisions of The Federal Constitutional Court For The Gap- 132 Filling of the Statutory laws 8.5 Practice of Precedent of the Federal Court of Justice 133 8.1 Authority of the German Federal Court of Justice‘s Precedents 133 S22 Examples of Precedents of the Federal Court of Justice in Civil Law 134 Matters 8.6 Publication of Judgments and Law Reports 137 8.7 The Role of Precedent in the German Legal Education 137 Part IV Precedent in Vietnamese legal System and Recommendation For Vietnam Chapter 9 Precedent in the Context of Vietnamese Legal System 9.2 Theory of Precedent in Viet Nam 142 9.3 Precedent and Concept of law in The Vietnamese Legal System under 146 Comparative Law Perspectives Chapter 10 Adoption of Precedent into The Vietnamese legal system 10.2 The differences between doctrine of precedent in Common law and Civil 153 Law Systems 10.1 Binding and non-binding precedent 153 10.2 Precedent and The legal Method 154 10.3 Common law Precedent and Precedent Based Statutory Law 156 10.4 Convergence of Doctrines of Precedent in The Civil Law and Common 157 Law System.3 Reception Doctrine of Precedent into Vietnamese Legal System 160 10.1 The Concept of Legal Reception 160 10.2 Seeking For A Proper Doctrine of Precedent For Vietnam 161 10.3 Skepticism versus Optimism about Precedent 163 tii Chapter 11 The Role of Precedent for developing legal education in Vietnam 11.2 Big Challenging for Using Precedent in Legal Education in Vietnam 168 11.3 Solutions for Using Precedent in Legal Education 171 Chapter 12 The Role of Vietnam’s Supreme People’s Court (SPC) in Developing Precedent 12.2 The Position and Function of Vietnam SPC in the Vietnamese Court 174 system 12.3 Reporting of the Vietnam SPC’s judicial decisions 178 2.3! The Current Reporting of Judicial Decisions 178 12.