Last week, we talked about the president and we already explained the why, what and how.

And you already know the process to develop a case, to be a case law.
And we will go to the next question is when. When will we apply the case law to solve a case?
And according to the civil code, maybe you remember the article 6 about the analogous law
application or the term we say, the similar law application.
And according to the article 6, of the civil code, it sets the hierarchy of the law application level.
So in case we have a legal problem, a case,
so the first step we have to find, for the first step, we have to find the legal norms.
We have to find a legal document because according to the internal law in Vietnam, we have three
sources of law.
These are the legal documents, the customary law and the precedent. And we just, you know,
recognize what all the sources of law in the legal documents.
So according to the civil code of all the times under the precedent law, we have a regulation like if we
have a case, a legal case.
Firstly, we have to find whether we have a case. And secondly, we have to find whether we have a
legal norm or a legal document directly regulated or not.
If yes, we have to set the priority for the legal norm or the legal document.
So if we cannot find a legal norm or a legal document directly, you know, regulate the case,
then we move to the second step. In the second step, we use the analogous law application or similar
law application. And the analogous law application is like that.
If there is no law, we can find the legal principle. The legal principle.
And if we cannot find a legal, a relevant legal principle, and we move to the next step, step three, we
find customary law or precedent.
So the question when, that is in the third step, right, to solve a case. First, we have to find legal norm.
Second, we find the legal principle, the relevant legal principle.
And step three is regarding to the customary law and precedent.
And we raise the question, does precedent create a regulation or explain how to understand a
regulation?
Does precedent create a regulation or it just explains how to understand a regulation?

Do you remember the structure of the ?

Just do not look for them, just study the structure. But according to your understanding, whether the
president creates a regulation or just then how to
understand the regulation when we apply the president of president
when we do not have a direct legal norms right and basically we understand like the court
create a new regulation right but sometimes it does create a new
regulation or they just you know create you know a way to understand a
regulation
we will get back this question later
so we will to the next question about when
this is the issues of similarity factor of the case the similar factor of the case you remember this line
yes yes so you should answer
me the question in the previous line you know the structure already right

Alright get back to when

When is about the similarity factor of the case and
we are going to the structure
and now we will look at the structure on the screen we have 2 structure, the structure according to
article 3 and the structure according to article 7

can you find the differences between the previous version

and current version and Why they have to change the structure.
What is the meaning of the changing?
So the number of the president? Yes, right?
The name of the president? This is the new. The position? This is the new one. The relevant
legal regulation. Keyword.

So now you may say that from 2016, we have the new structure
of the president. And compared with the older version, the previous version, we have some
additional factors. Just like we have the name of the president, we have the position of the president in
the judgment. And we have the legal issues and legal solutions clearly
in the forms of the president.
+So why they have to change the structure?
If you like the current versions with the additional factors, then why? What is the meaning of the
future? Do you wait until the future is over, then what's the future?
The meaning of new factors, does it help you? In what purpose?
Can anyone tell me when you read the new structure, you like it? Right? So why? Why do you like it?
Why do you like this factor?
What are the purpose? Does it help you? Help you in what?

I just show you the comparison between the old version and the current version to show you that you
are now very happy because you live in this
you know the era that we have a new structure because the people you know in the past often
you know complain that, it's not easy for them to approach to understand and to find a precedent
because
Because a president just has the number, president number 1, 2, 3, 4, 5, 6, 7, and it's very hard for
them to remember the legal issues and the legal solution of each president.
*we have the name of the law, like the civil law, the law on handling administrative violations, the
law of propagation of legislative documents, we have the name of the law so everyone is very easy to
remember the law and easy to look up the law.
And if we have a problem that we need to apply a case law and we have to look up the legal situation,
the legal contents, right, of each president because mostly we cannot remember the legal issue in the
president just with the number, just with the number.
Because we have hundreds of presidents, so how can we remember? So that's why they have to look
up the law.
They have to add a name of the president for everyone to easy to identify the case, easy to find the
relevant, right, the relevant situation in the president compared with the current case.
*Then they add the position of the president because a judgment sometimes is very long. It may be 10
pages. 10 pages or over.
So if we do not have the position of the president in a judgment, so everyone has to read.
The whole judgment can be 10 pages, 11 pages, and maybe 20 pages.
So with the position of the president, everyone can focus on a specific paragraph, a specific
part of a judgement to read. So it happened a lot, right? It's easier to identify the case law in a
judgement.
* then we have the situation and the legal solution.
The most important of the case law is the legal solution, right?
That is why we need a President. We need a legal solution for a specific legal situation.
And in part 5, it happened too easy to find a legal solution in a judgement. Okay.
So according to the new structure, you may find it easier for everyone to understand,
to find a case law and to find a position of the case, of the President in a judgement,
as well as very easy for us to find a legal solution in a judgement.
So that is the reason why the Supreme Court has to change the structure. Right? And now
So now we get back to the question.
Whether the President creates a regulation or just to explain a regulation. Okay.
Does it create a regulation or explain a regulation?
Explain or create? Explain.
So according to the structure and the understanding, we may find that the President not create a new
regulation. Right?
Then maybe create a new regulation. A new regulation. So we have to understand, right? An
explanation of a current regulation.
So we have a current situation. We have a current regulation. And sometimes we do not understand it,
you know, in this way or that way.
So the President create a way to understand it.
For example, we have the President number 55.
55. Can you see the red? In the president's 55, there is a problem that even in the president and the
people confused.
You know, it's not easy for everyone to understand the legal solution. Because in the situation and
legal solution, they have a direct comment.
And it says that this one here, this means we have to satisfy both A and B, before and after the red
comma.
Right? A and B, all we just to satisfy one part. Like A, either A or B.
We can satisfy the case law. Right? Because if we have the word like AND. Right? If we have the
word AND.
So, this means we have to satisfy both A and B. Right? If we have the word OR. So, we know that we
satisfy A or B.
So, we have the red comma here. So, many lawyers just ask whether we have to satisfy A and B.
Or we have to satisfy A or B. So, in this situation, we have to look up in the relevant legal norms.
And the relevant legal norms.
The relevant legal norms in the article 101.
Article 129. And the article 129 says we satisfy just A or B. It's fine.
So, if we...

That's why in case law, the judge also has to find a relevant legal regulation. And show it here. Show
it here.
The relevant... The relevant legal regulation to the case law. In order to sometimes the case law is
making the reader to be confused.
And then we can look up into the relevant legal regulation. And in this situation, we look up to the
article 129.
And one more time, it tells us that... The president mainly explain how to understand a regulation.
Rather than create a new regulation. Right?
Now, we want to solve, you know, issues of the president.
You already know about why, what, how and the structure.
Right? Of the president. Now, this is the part you have to use your legal mind. Your critical thinking.
To answer by ourselves some questions. This is some very basic questions and controversial
questions. Related to the president in Vietnam. And when we learn about the president in Vietnam.
We have to face those questions. Some issues. And the first issue is very common issue that everyone
may ask you when they know you study president in Vietnam.
That is why the number of president in Vietnam is very limited. Right? If you look here, we have last
year.
We just have four president over the number of the case.
So you have something to discuss with your friend. And I may invite someone to tell me why... The
number of president in Vietnam is still so limited.
And this time you have to give me your answer.
Based on your legal mind, critical thinking, your understanding about president in Vietnam.
Based on what? Based on the procedure to select a case to be a case law. Right? Based on when?
Based on how?
you know...
in the normative legal documents
we have the primary source of law in the normative legal documents, you know it? right? and in the
system of normative legal documents
there is a document name in the resolution of the council of the Supreme Court and the resolution of
the council of the Supreme Court this is a normative legal document
it's not the guidelines (cong van) ... it's not like a dispatch or officer letter something like this
this is the official normative legal documents and in order to have a resolution from the council of the
Supreme Court ,it takes a lot of time
and the process is also very complicated because this is the normative legal document so it has to
satisfy the whole process to drafting and issuing it
so the resolution of the council of the Supreme Court is also the number one when applying law to
resolve a case
and the precedent is in case we do not have law including this resolution
so if a court, you know just ask the superior court they cannot make any guideline or any explanation
or anything
to solve the case of the subordinate court right? they just can ask you to apply the normative legal
documents
if not, you have to find a similar law application or you develop a case law right? and you develop a
case law so...
in this situation, a judge in the court they have to face to a difficulty in the reappointment that will be
reappointment
so if a judge in the court like district 4, district 1 they just, you know, keep asking the superior court
how to solve a case
then they face the difficulty of not being reappointed in the next term so they have to use their own
knowledge, use their own ability to solve the case so it's not common for a subordinate court to ask
the superior court how to solve a case
a specific case in their level. they have to try their best to find a relevant legal documents or they have
to try their best
to use the principle of law let's say the... similar law application or to use a case law so...
why the number of residents is still limited in Vietnam
this is a really important question for everyone to do the research or learn about the residents

 first the first reason that we have to recognize and we have to, you know, solve it is the
motivation
why now we, the judge and the court do not have, you know, much motivation to develop a case law
because if you want to do everything the first point is you must have the... the motivation to do it
right? and because the president of Vietnam is not compulsorily applying
so we develop it for what? right? so we develop a case law like the case law number 2 2 parties right?
one or two parties sign a contract to transfer the land to another person the other party knows but
makes no objection
and uses the money right? and we create a case law that is in that situation we have to validate the
contract
although it does not satisfy the general condition of the civil law right? and then solve it so the first
one just say it's not husband and wife we are just friends and we deny to apply the case law the other
person just say oh we are brother we are husband and wife
but I know I make no objection but I do not use money so I deny to apply the case law so they can
take many you know, reasons just to deny
to apply the case law based on maybe a factor that they made by difference so in that situation the
president is not because the president is not
compulsorily applying so they just try to ignore why they try to ignore? when they try to decline
because they can make
a new judgment right? they can make a new judgment it may be beneficial for someone they they
know because of the benefit of themselves
or because of anything else so they may deny to apply the case law to make their new judgment so in
that situation the court
do not have much motivation to develop a case law right? if you want to change the situation , make it
make it to be compulsorily applied

 the next I agree with you about the process the process is long right? and complicated
they have to satisfy the criteria and then they have to get the proposal from anyone they have to pass
through a collection of opinions
from the public and then the extra advisory council and advisory council have to work on it to send it
to make the advice
to the to the supreme court and then the judge you know
judge of the supreme court will make the announcement and then we have to wait three days before it
enters into force so
the process is still long right? and we have many subjects involved in the process we have many
subjects involved in the process
and they have different opinions they have different ideas and they just you know make it so
complicated

 the number three is the criteria

the criteria there is some criteria it's unclear just like having normative nature how can we define a
precedent, a case having normative nature right? how can we define it? you cannot make like number
one number two number three
right? you cannot know on like the qualitative measure just based on your subjective
decision with the I agree I think I feel I think I think it has normative nature( tell me why I think I
think)
so sometimes it's unclear and subjective subjective subjective so it also you know make a negative
impact to the process of developing
the criteria the precedent right? what else? now we have process we have motivation we have criteria

what specifically factor? this is the problem of

resource resource especially human resources right? because the judge the lawyer and everyone
law school student is you and then you graduate you become a lawyer you become a judge anyone? so
we are educated that
the primary source of law is the legal documents so we are educated and we do not have much you
know lessons in the law school or in the professional
education program about the precedent so sometimes we do not have much you know knowledge and
skills in writing a judgement
or making a proposal to the subject court to develop a case law right
so if you want to change we have to change the
we have to improve the ability of the judge the lawyer and everyone working in legal area they have
to have the new knowledge and the skills to
to develop a case law from a case

we have a case and a case law right?

who make the case law? not the court right? the case is at the court
but this court is not responsible for developing a case law the case law is on the hand of everyone
it's on the hand of the advisory council on the hand of the Supreme Court so at this level in all the
country the judge and the court when solving a case they have to develop a case law of precedent at
this period right?
at the time not in time so the judge have no motivation and they do not have enough ability to develop
a case law at the time at the trial times
they just you know make a judgment and they put the work of develop a case law into the hand of the
advisory council the Supreme Court and all the person
so that's why we do not have enough the precedent in Vietnam
so the question
for yourself how to develop a good precedent you can answer it later

And the next is

in the case law retroactive (retroactive in Vietnamese is hiệu lực hồi tố ) in the case law retroactive no
no
because when when we apply the law to solve a case we have to think about the factor the very
important factor is predictability
(predictability means everyone can predict the negative consequence a sanction that may apply to us
when we take
such action or do not act according to the requirements of law so before we do something we have to
know the future
negative consequence may happen to us that is the predictability factor of the the law system) so the
law system
you know make a very strict restriction for the retroactive application they make
a very restriction on retroactive application because retroactive application means we apply
a sanction right we apply a sanction to the one who didn't know the consequence so they make it
right they didn't know is it the things that is prohibited at the time they made it right for example
in the past we have a sanction an administrative sanction for those who kiss in public places
in the past we have a administrative sanction for those who kiss hold up in public
places so if a and b are in public didn't know that's kind of regulation so a and b
kiss in public places just like schoolyard or on the street in the back of the everyone know it right and
then we have a regulation
that we apply a sanction for those who kiss in public places and then they just you know have a
camera and they say oh
one year later oh one year ago one month ago a and b kiss in public place and we apply a sanction to a
and b
it's really problematic right because at the time they kiss they cannot predict that that action will be
prohibited
in the future right so the law make a very strict restriction of applying the retroactive application of
law because it
not satisfy the condition of predictability of the law system so we just can apply the retroactive you
know application in some
very limited cases for example you studied in criminal law and administrative law when we can apply
you know the retroactive
application when
when a regulation can be
can have you know the retroactive effect when when when the articles are beneficial to the convicted
for
to the accused to to the accused like to the convicted person the articles are beneficial to the
convicted record maybe for the benefit of the of the convicted society of the for the benefit of that
subject right for the benefit right not for sanctioning right we have to prove it for the benefit of the
society the benefit
of the humans of the videos or organization right we have to prove and one more condition to one
more condition
a revolution to have a retroactive effect is the condition
the condition for the for the good this is purpose right and the condition to apply
the retroactive effect is you understand the situation don't
The law can't really restrict, but they have a limited case can have restructuring effect
The purpose is to protect the social benefit and the benefit of a group of individuals or organizations
That is the purpose

And how about the procedure?

The procedure, the first step procedure, that is the restructuring effect of a regulation must be clearly
written in the legal norms
It doesn't mean that a judge, a lawyer says, okay, I think it's good for social, for society So I decide to
use the record effect
In this case, can he? No
He must say, based on an article 1, 2, 3 of a degree of a law, I can now use the retroactive effect for
the case
So the procedures, the first step procedure is they have to link to a specific, you know, written
Allowance to use it in a legal documents For example, the legal law, the legal code
It says that, okay, now the one who, the woman can have a better welfare, a higher rate of welfare in a
maternity leave
Maternity, the maternity period, the maternity period is in Thai sản Maternity period
So the woman must have a higher rate of welfare, social welfare
And they say that for those who, you know, giving birth in the maternity period Before the time of the
labor code take it to effect
May also get that rate Because it's good for the woman And The state can afford to pay for this
So the labor code and the degree of the government, the implementing degree of the government say
For those who in the maternity period
Before the time that this code take into effect Can get a higher rate Just like the person Aftery the time
that the code take into effect Right So the social, you know
The social insurance can give the woman in maternity period Before the time that the law take into
effect Get the same rate Of those after the time the law take into effect Okay
So it must based on a specific Written regulation in a legal document
So they can apply the retroactive impact To regulate a case Now you understand it? And how about a
case law?
What is challenging the systematic, The systematicity of the law system, legal system Is the case law
retroactive? Yes or no?
No Is the case law retroactive? No No? So why? Why you think it's no?
The case law Has no retroactive effect
Because at the times the case is resolved And the court It's been the trial times The case Haven't
Resolved yet Right?
It's still a case So in this situation the case law Make no Retroactive effect Do you agree?
Of course So let's see
This is the trial time Right? This is the case The case This is the trial time said The court Right?
So When A case Is entered A trial And the court Does mean The situation
Already Happened Right? The situation Or the action Situation Already happened
The land already Transferred .The goose Already Been sold Right? Some action Already Tinkered
And now They do not agree And they bring A case To a court And The court Will make A decision
And become A President Right? Make a decision Will apply To The Action Already Happened
Right? And At the same time Make a precedent To apply for A case Not yet happened
So it can apply To Something new And it applies to Something Already happened It's different from
The legislative
The legislation Means A member of National assembly They Just sit In the National assembly And
Imagine And Predict
Something Maybe Happen In the future And write it in a A document In law Right? So When A law
Is Dropped And
Issued The social Relations And The Legal norms Haven't Happened Yet Right? It's not yet happened
It's just In the mind Of the member Of the national assembly They think Oh it may happen It might
happen In the future Based on The fact Of the development Of the Society
Like we have AI Intelligent So The member The Lawmaker They will think Oh With the AI It makes
A negative Impact To education
To health To Social To Anything So They make A predict Right? Imagine About something May
happen In the future
And write it Into A legal Decision For something Not yet happened It will Happen In the future But
The case law
The decision Applied To Something Already Happened In the past So In this Situation The Case law
Is
Retroactive The Case law Is Retroactive And It May Conflict With the
Regulation Of the Law About Retroactive So This is Also A problem Of Applying Precedent Not in
Vietnam
Not only In Vietnam But also In some Other countries So We have To think About The retroactive
How to Prevent You know The Negative Impact Of retroactive
So Now we have A break time If you stay In the class You may read The case law Number 2
We have 2 lessons So now We have A break For you
If you Are Older You can Read The case law Number 2
So You Can Read And So You And You Can Read The Case Law Number 2
So You Can Read
I don't know.
I don't know.

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