In the Court’s practice of applying the law, it is difficult to avoid the situation that there are cases where there is no law governing such case. In order to create an adequate legal mechanism for the Court’s settlement of civil cases and to protect and ensure human rights, civil rights, and justice, the 2015 Civil Procedure Code (“CPC”) has provided for the principle of settling civil cases when there is no applicable law.
Conditions for the Court not to refuse to settle civil cases
Clause 2 Article 4 of the CPC stipulates that a civil case without applicable law provisions is a civil case falling within the governing scope of civil laws but there is no applicable law provision at the time such civil case arises and an agency/organization/individual requests the Court to settle. Thus, the Court is only responsible for accepting a civil case if such civil case simultaneously satisfies all of the following conditions:
Firstly, the relationship requested to be resolved falls within the scope of the civil law;
Secondly, the case requested to be resolved falls under the jurisdiction of the Court according to civil procedures, that is, the case is not under the jurisdiction of other agencies or organizations or is not resolved in other Court according to other procedures such as administrative proceedings, criminal proceedings, bankruptcy declaration procedures;
Thirdly, the legal relationship requested to be resolved does not have an applicable law.
For instance, in Vietnam’s marriage and family law, there is no regulation on marital separation, however it still falls within the scope of the civil law, so the Court cannot refuse to settle the involved parties’ request for separation.
Principles of settlement of civil cases when there is no applicable law
According to Article 45 of the CPC, the application of legal provisions to settle civil cases in the absence of applicable law shall be carried out in the following order: (1) Applying customary practice; (2) Applying analogous law; (3) Apply basic principles of law, precedents, and equity.
Firstly, application of customary practice
Accoridng to Article 5 of the 2015 Civil Code, customary practice means a rule of behaviour with clear content to determine the rights and obligations of an individual or a legal entity in a specific civil relation, which was formed and repeated many times over a long period of time, and has been recognized and widely applied in a region, area, ethnicity, resident community, or in a civil sector. Vietnamese law considers practices as the second type of source right after the law, which is very consistent with the practice and tradition of Vietnam. The application of practices suitable to the real life of the community to settle disputes by the Court shall be highly persuasive, be agreed upon, accepted and voluntarily implemented by the people, creating positive effects on the judgments and decisions of the Court. Not in all cases, if the law has not yet provided for and the parties cannot reach an agreement, practices shall be applied to settle the matter. The custom is only applied when the statutory conditions are satisfied: (i) The cases being resolved are subject to the regulation of civil law; (ii) The practices shall be applied to resolve civil cases when the involved parties do not reach agreements on and the law does not provide for such cases; (iii) Such customary practices must not be inconsistent with the basic principles of civil law (Article 45 of the CPC).
Secondly, the application of analogous law
Competent entities shall apply analogous laws to settle civil cases where the parties do not reach an agreement, the legal system has no regulations and no customary practice is applied.
Conditions for application of the analogous law: (i) The cases being resolved are subject to the regulation of civil law; (ii) At the time of settlement, the parties do not reach an agreement, in the legal system, there is no legal regulation governing the case and no applicable custom; (iii) There are legal regulations governing other cases with similar manner.
Thirdly, application of basic principles of law, precedents, and equity
The basic principles of law are the basic guiding ideas, which are the starting point, the core, and the orientation throughout the content and form of law, the entire legal practice, and law-making, law-applying activities. Therefore, legislators also consider this as a measure to settle cases when the civil legal regulations dealing with that case have not been developed.
Precedents: Article 1 of the Resolution No.03/2015/NQ-HDTP dated October 28, 2015 of Council of Justice of The Supreme People’s Court on process for selecting, publishing and adopting precedents defines that: “Precedents are arguments and rulings written on effective judgments or decisions (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 adopt them when deciding later cases”. About conditions for applying precedents: Firstly, the precedents must be selected and announced according to the statutory procedures and competence; Secondly, the application of precedents in trial must comply with the principles in Article 8 of Resolution No.03/2015/NQ-HDTP; Thirdly, precedents are only applied when it is not possible to apply customary practices, analogous law and basic principles of civil law.
Applying equity is a solution to settle civil disputes in cases where it is not possible to apply the analogous law. According to Article 45 of the 2015 Civil Code, “the equity shall be determined on the basis of the reasons admitted by everyone, conformable with the principle of being humanitarian, unbiased and equal in rights and obligations of involved parties in such civil cases”. The law stipulates that the application of equity in the settlement of civil cases is to expand the jurisdiction of the courts and enhance the responsibility and role of the People’s Courts at all levels.
Conditions for applying equity: Firstly, the case being considered and resolved falls within the scope of civil law; Secondly, the disputing parties do not reach an agreement or cannot reach an agreement, there are no provisions, no customary practices, no applicable analogous law, and no precedent; Thirdly, the application of equity is based on each dispute, and even for disputes of the same type, the application of equity shall not be the same.
Sanctions for judges who violate the principles of civil case settlement without applicable laws.
The provisions that the Court must not refuse to settle a civil case for the reason that there is no applicable law provision for such case is a fundamental principle and ideology of the civil procedure law, a violation of this principle shall greatly affect the judicial process. In Vietnam, judges who violate this principle shall be disciplined. According to Articles 9 and 10 of Decision No.120/QD-TANDTC dated June 19, 2017 regulating the handling of responsibilities of holders of judicial titles in the People’s Court, judges shall be examined before competent agencies and units when: “Returning the petition in contravention with the law, affecting the legitimate rights and interests of agencies, organizations or individuals, or causing bad public opinion, and affecting the reputation of the People’s Court”. If violations continue, the judge may be suspended from performing his or her duties for 30 days.
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