There are two kinds of jurisprudence, namely the binding jurisprudence and the non-binding jurisprudence.
Kinds of Jurisprudence
Binding jurisprudence requires judges to fully comply when deciding similar cases. This consists of explanatory jurisprudence and normative jurisprudence.
Explanatory jurisprudence contains legal analysis in judicial decisions to clarify an ambiguous legal provision. For example: in a case, concerning the compensation for death, courts at first instance and appeal levels did not accept the request of the claimant asking for the respondent to pay the cost of air transport by which the victim’s family flew from Ha Noi to Da Lat to hold the funeral [for the victim]. Nevertheless, the Supreme People’s Court overruled the judgments and held that the cost of air transport for the family’s victim (including his/her spouse, parents, children and siblings) to join the funeral was a “reasonable cost for the funeral”. In this specific case, at the location of the victim, Da Lat, there was no way to preserve the corpse. Thus, the cost of air transport for the family’s victim to hold the funeral in time was reasonable. This analysis illustrated the “reasonable cost for the funeral” codified in Article 610(1)(b) of the Civil Code 2005.
Normative jurisprudence contains legal analysis in judicial decisions to create complementary rule for a legal provision. For example: in a case, A caused B’s death due to a traffic accident. Courts at first instance and appeal levels required A to provide assistance to the two immature children of B from the date the first instance was heard. The Supreme People’s Court overruled the judgment and analyzed that although Article 612(2) of the Civil Code 2005 did not stipulate the time for A to provide assistance to those who must be nurtured by the victim, this Article aimed to request the respondent to carry out this obligation from the time when the demand for assistance arose. In this case, the time the demand arose was when the victim died, not when the first instance was heard. As such, this jurisprudence provided with a complementary rule for the Article: the time to carry out the assistance obligation is when the demand arises.
Moreover, there is another kind of jurisprudence: the non-binding one. This jurisprudence is for the lower courts’ reference and guidance so that they can correctly apply clear legal provisions and explanatory and normative jurisprudence. It does not bind the judges in any cases.
Jurisprudence Needs to Be Plain
We can define “jurisprudence” as analysis and legal principle given in the judgments of the Supreme People’s Court to explain a provision or to provide with a complementary rule for a provision.
Jurisprudence is created in the judicial process. The Supreme People’s Court will, with its role and responsibility, adjust the legal explanation and application of the lower courts. The analysis given in the judgment of the Supreme People’s Court creates jurisprudence. In most countries over the world, the judgment of the Supreme Court is jurisprudence without any further procedure.
However, in Vietnam, to become jurisprudence, the judgment must be written plainly. Otherwise, the judgment of the Supreme People’s Court does not create jurisprudence; it simply overrules or upholds the appealed judgments of the lower courts.
In fact, there are hardly cases with the same merits. Jurisprudence shall be reasonably analyzed and applied to ensure that cases with identical merits will reach identical outcomes.
(Authored by Ngo Cuong / Translated by Le Ngoc Bao Trang / Edited by Camille Buewaert / Original source: http://plo.vn/phap-luat/an-le-ap-dung-the-nao-612743.html)