Decision 364/QD-CA on the publication of 7 new case laws applicable from November 2023

On October 1, 2023, the Supreme People’s Court issued Decision 364/QD-CA on the publication of 7 new case laws applicable from November 2023. Accordingly, these 07 newly officially announced precedents have been added to the system of case law sources in Vietnam, bringing the total number of case laws published in Vietnam to 70 case law.

What is case law in Vietnam?

Case law in Vietnamese jurisdiction has been called under the term: “precedent”. According to the definition in Article 1 of Resolution 04/2019/NQ-HDTP: “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 Judges of the Supreme People’s Court and published by the Chief Justice of the Supreme People’s Court for other courts to study and apply them when deciding later cases”.

The purpose of applying case law in research and trial in Court is to ensure that cases with similar legal situations must be resolved the same. Accordingly, when there is a published source of precedent and there are similar legal issues, but the Court does not apply the precedent, the reason must be clearly stated in the judgment or decision of the Court.

Legal effect of case law in Vietnam

Case law is recognized as a legal source of law under the Civil Code. Accordingly, precedents published according to the procedure through precedents prescribed by law can be applied as a source of law for the application of the law regime. Courts in Vietnam can study and apply officially published precedents as a legal basis in adjudication in addition to written sources of law, custom, and equity.

According to the provisions of Article 8 of Resolution 04/2019/NQ-HDTP, the effectiveness of precedents arises after 30 days from the date of publication. The 07 newly announced case laws will take effect from November 1, 2023, according to Article 2 of Decision 364/QD-CA.

Content of Decision 364/QD-CA on the publication of 7 new case laws applicable from November 2023

Precedent No. 64/2023/AL on framing the penalty and framing the “organized” aggravation in the crime of “Kidnapping with intent to obtain property”

Source of case law: Cassation Decision No. 15/2022/HS-GDT dated October 4, 2022, of the Council of Judges of the Supreme People’s Court on the criminal case “Kidnapping to appropriate property” for Defendant Tran Van N and his accomplices.

Legal basis related to case law: Article 169 of the 2015 Criminal Code (amended and supplemented in 2017).

Content:

• In case the Defendant plans and prepares tools and means to commit a crime to kidnap the victim to appropriate property but has not yet appropriated the property, the defendant must be prosecuted for criminal liability for the crime of “Kidnapping to appropriate property”. The court must base on the value of the property the defendant intends to appropriate to determine the penalty.
• Among the defendants, there is a defendant who is the leader, and initiator, and directly invites other defendants to participate in the arrest of the victim to appropriate property, plan, and assign tasks to other defendants. There was a close collusion between the defendants, and they performed consistent actions under the direction of the leading defendant. At that time, the defendants must be prosecuted for criminal liability for the crime of “Kidnapping to appropriate property” with the aggravating circumstance of “organized” as prescribed in Point a, Clause 2, Article 169 of the Criminal Code.

Precedent No. 65/2023/AL on criminal prosecution for the crime of “Human Trafficking”

Source of case law: First Instance Criminal Judgment No. 42/2018/HSST dated December 3, 2018, of the People’s Court of Dong Hai District, Bac Lieu Province on the case of “Human Trafficking” against the defendants Duong Van S and Pham Hong K, Duong Thi T1, Tran Ich C.

Legal basis related to case law:

• Article 150 of the 2015 Criminal Code (as amended and supplemented in 2017);
• Resolution No. 02/2019/NQ-HDTP dated January 11, 2019, of the Council of Judges of the Supreme People’s Court, guiding the application of Article 150 on the crime of human trafficking and Article 151 on the crime of trafficking in people under 16 years of age of Criminal Code.

Content:

The defendant, through an intermediary, made an offer to the victim about a job, so the victim accepted. After that, the defendant transferred the victim to another person and forced him to do work against the victim’s will to make a profit. In this case, the defendant must be prosecuted for criminal liability for the crime of “Human Trafficking”.

Precedent No. 66/2023/AL on determining the crime of “Human Trafficking”

Source of case law: Criminal Appeal Judgment No. 86/2022/HS-PT dated February 17, 2022, of the High People’s Court in Hanoi on the case of “Human Trafficking” against defendants Trinh Thi H and Dang Thi C.

Legal basis related to case law:

• Article 150 and Article 349 of the 2015 Criminal Code (as amended and supplemented in 2017);
• Resolution No. 02/2019/NQ-HDTP.

Content:

The defendant committed acts of deception, promising benefits to the victim, causing the victim to trust and voluntarily follow the defendant abroad, after which the defendant handed the victim over to another person to receive money. In this case, the Court must determine that the defendant’s crime is the crime of “Human Trafficking” and not the crime of “Organizing for others to flee abroad illegally”.

Precedent No. 67/2023/Al on who receives in kind when dividing common property

Source of case law: Cassation Decision No. 40/2021/DS-GĐT dated June 23, 2021, of the High People’s Court in Hanoi on the civil case “Dispute on division of common property” between the plaintiff and Mr. Nguyen Thi D and the defendant Mr. Pham Ngoc H; people with related rights and obligations include 06 people.

Legal basis related to case law: Article 209 and Article 219 of the 2015 Civil Code.

Content:

In the case of dividing common property, which is home ownership and land use rights, one side is the elderly person who has created, managed, and used real estate in a stable, long-term manner and wishes to receive the real estate and make payments of the remaining value for other people. Real estate cannot be divided into assets. In this case, the Court must decide to hand over the house and land to the elderly person and the elderly person must pay the value of the remaining property to other people.

Precedent No. 68/2023 on the right to receive inheritance in kind, which is a house, from heirs who are Vietnamese residing abroad

Source of case law: Cassation Decision No. 06/2019/DS-GDT dated March 18, 2019, of the Council of Judges of the Supreme People’s Court on the civil case “Inheritance dispute, claiming contributions raising, taking care of, preserving the house and land and claiming the house and land” between the plaintiff, Ms. Nguyen Tuy H, and the defendant, Ms. Ly Lan H1; people with related rights and obligations include 06 people.

Legal basis related to case law:

• Point d, Clause 1, Article 169; Article 186 of the Land Law 2013;
• Clause 1, point b, clause 2, Article 8 of the Housing Law 2014.

Content:

The person leaving behind the legacy of housing ownership and land use rights died before the 2013 Land Law and 2014 Housing Law took effect. Disputes over property inheritance division were resolved by the Court at the time the Land Law 2013 and Housing Law 2014 took legal effect. In this case:

• The Court applied the 2013 Land Law and the 2014 Housing Law to resolve.
• In case there is an heir who is a Vietnamese residing abroad, the heir may receive the inheritance in assets, which is a house, when he/she is eligible to receive housing according to the Housing Law 2014 and the inheritance can be divided into assets.

Precedent No. 69/2023/AL on the authority of Commercial Arbitrators in resolving disputes over information confidentiality and non-competition agreements

Source of case law: Decision No. 755/2018/QD-PQTT dated June 12, 2018, of the People’s Court of Ho Chi Minh City on the civil matter “Request to set aside arbitration award”; The requester is Ms. Do Thi Mai T, the person with related rights and obligations is R.

Legal basis related to case law:

• Clause 2, Article 2, Article 13, and Clause 4, Article 35 of the Law on Commercial Arbitration 2010;
• Clause 2, Article 3 of the Civil Code2015;
• Article 6 of Resolution No. 01/2014/NQ-HDTP dated March 20, 2014, of the Council of Judges of the Supreme People’s Court guiding the implementation of the Commercial Arbitration Law.

Content:

The employee and the employer sign an information confidentiality and non-competition agreement stating that after the termination of the labor contract, the employee is not allowed to do similar work or work that competes with the employer within a certain period. If there is a dispute, it will be resolved by commercial arbitration. In this case, the Court must determine that the dispute over the information confidentiality and non-competition agreement between the two parties is an agreement independent of the labor contract, falling under the jurisdiction of the Commercial Arbitrator.

Precedent No. 70/2023/AL on termination of labor contracts for employees who are part-time union officials

Case law source: Cassation decision No. 06/2022/LD-GDT dated September 26, 2022, of the High People’s Court in Ho Chi Minh City on the labor case “Dispute on unilateral contract termination labor” between the plaintiff, Mr. Vuong Quoc A, and the defendant, K Vietnam Limited Liability Company.

Legal provisions related to case law:

• Article 36 of the Labor Code 2012 (corresponding to Article 34 of the Labor Code 2019); Article 192 of the Labor Code 2012;
• Article 25 of the Trade Union Law 2012.

Content:

The employee and the employer sign a definite-term labor contract. During the contract term, the employee is elected Chairman of the Executive Committee of the trade union, but his candidacy and election are invalid. At the end of the contract term, the employer issues a decision to terminate the labor contract with the employee. In this case, the Court must determine that it is correct for the employer to terminate the labor contract with the employee.

Above is the updated content of Viet An Law on Decision 364/QD-CA on the publication of 7 new case laws applicable from November 2023. Customers who need consulting, dispute resolution representation, or related civil and criminal legal advice, please contact Viet An Law for the best support.