Table of Contents
The Communist Party of Vietnam
Alternative Dispute Resolution
The Socialist Republic of Vietnam has a population of 87, 74 million on an area of 331.690 square kilometres in Southeast Asia.
The Vietnamese originated from several tribes and factions since 2000 BC in the northern mountainous area of modern Viet Nam. The country was under Chinese occupation for more than ten centuries until 938 AD. Since then, Vietnam remained independent until the late 19th century. In 1859, Vietnam fell under French colonization and was then occupied by Japan during World War II.
The country declared its independence on September 2, 1945 under the name Democratic Republic of Vietnam. The country carried out the war against the French until 1954 when French forces were defeated in the famous Dien Bien Phu campaign. The Geneva Accord 1954 temporarily divided the country into two parts along the 17th parallel: the Democratic Republic of Vietnam in the north and the Republic of Viet Nam in the south. After twenty- one or more years of war between the north (supported by the communist countries) and the south, with deep military involvement of the U.S. Government including its widespread bombing of the north, in 1975 the north took over. The country was fully reunited and later renamed the Socialist Republic of Vietnam.
The country carried out economic reform, popularly known as doi moi, since 1986, under which the country diverted from the central planning economy to the market economy.
The centre of doi moi was the provision of rural land to the farmer families, liberalization of internal and external trade, recognition of individual property, and permission of foreign investment.Doi moi dramatically changed Vietnam’s economy and significantly improved the living standard of its people. Poverty rate dropped from 58% in 1993 to 37% in 1998, 29% in 2002 and extremely decreased to 11, 5% in 2012. From a rice importer, Vietnam has become the world’s second largest rice exporter.
Even though Vietnam has been widely praised as a success story of reform, there are concerns about modest foreign direct investment inflows compared to other countries like China, poor rating on corruption and inefficient investment allocation.
The shift from a central planning economy where the State made every decision on the allocation of resources to a market economy makes the law indispensable. As a result, Vietnamese legislation development coincided with the development of the country’s market economy and most of the legal documents applicable today were promulgated in the early 90s and later. Its legal system is still evolving rapidly and therefore fascinating to observe. However, this also raises concerns over its stability and predictability.
The country’s adhesion to the World Trade Organisation on 11 January 2007 also puts the country under more pressure for transparency and legal reform.
The Communist Party of Vietnam
Even though the Communist Party of Vietnam is a political organization and not part of the State’s institutional system, it is essential to be discussed because of its critical role and deep involvement in the political and legal life of Vietnam.
Vietnam is a one-party State under the control of the Communist Party of Vietnam. Since the Constitution 1980, the Communist Party of Vietnam has been stated to be “the force leading the State and the society”. Just as the wording, the Communist Party of Vietnam has a central role in shaping the country’s policy and legal system and maintains a firm control over all the government and social system.Its structure is parallel to the government’s structure and has close relation to the government. Its organization is also established in line with the administrative apparatus from central level to provincial, city, district, and communal levels as well as with judicial bodies, schools, enterprises, political, social, professional organizations, army units and police forces. Its influence is reflected through the formation and election of the National Assembly, the operation of the administration, and the function of the judicial system. Article 41 of the Charter of the Communist Party of Vietnam states that “the Party leads the State by its political statements, its strategy, policy and direction, by ideological activities, and through organisation and staff management by supervision and inspection of performance.” It introduces people for election or appointment to State official positions and the majority of high-ranking State officials are Party members. The Party also maintains its influence at all levels of the society through its affiliated organizations: Vietnam Fatherland Front, Ho Chi Minh Communist Youth Union, Ho Chi Minh Young Volunteer Organization, Vietnam Woman Association, Vietnam Farmer Association just to name a few.
The highest authority of the Communist Party of Vietnam is its National Congress, which meets once in every 5 years. The most important overall policy of the Party, and thus the significant changes in the economic and social policy of the country, is set out in its Resolutions. The standing and more influential bodies of the Party are however its Central Committee and the Politburo.
The economic reform, doi moi¸ originates from the Resolution of the VIth National Congress in 1986, which recognized for the first time the “multi-sectoral economy.” This gave way to the new Constitution 1992, which stated that Vietnam would develop a “multi-component commodity economy functioning in accordance with market mechanisms under the management of the State and following a socialist orientation”. The recognition of multi-sectoral economy, more specifically of private ownership, was a significant change from the previous regime under the Constitution 1980, which recognized only ownership by the entire people and by collectives.
The Vietnamese government is not structurally based on the theory of the separation of powers. The National Assembly is constitutionally the body of highest power of Vietnam. It exercises the legislative power, determines the economic and social policies, domestic and international policies and financial and monetary policies of the country, approves the national budget, and supervises the activities of the Government, the People’s Court and the People’s Prosecutor.
The National Assembly elects, releases from duty, removes from office its Chairman, the Vice-Chairmen and members of the Standing Committee, the President, Vice President, Prime Minister, and the Chief Justice of the Supreme People’s Court and the Head of the Supreme People’s Prosecutor. It approves the cabinet at the suggestion by the Prime Minister.
The National Assembly’s organizational structure is composed of the Chairman, Vice-Chairmen, Standing Committee, Nationality Council and Commissions. It is organized and operates according to the principle of democratic centralism, works according to the conference regime and makes decisions by majority. The term of each legislature is five years,
Although having very large constitutional powers, the National Assembly of Vietnam is not necessarily so powerful in practice, nor is its capability up to the requirements to assume such a centralized power. The majority of the deputies of the National Assembly are part-time deputies (of the current 500 deputies, only 33% are full-time deputies) who gather to discuss the business of the National Assembly during only two 30-day sessions a year.
Between these sessions, the Standing Committee of the National Assembly supervises the activities of the Government, the People’s Court and the People’s Prosecutor to ensure their conformity to the Constitution and the laws.
The central government
The Vietnamese Government is the executive body of the National Assembly, and is the highest State administrative agency. The Government exercises the unified management of the performance of the State’s political, socio-economic, defense, security and external relation tasks; ensure the effectiveness of the State apparatus from the central to grassroots level; ensure the respect for, and the observance of, the Constitution and laws; promote the people’s mastery in the cause of building and defending the Fatherland, thus ensuring stability and improving the people’s material and spiritual lives.
The Government’s organizational structure is composed of the Ministries and the Ministry-equivalent bodies, which are established by the decision of the National Assembly at the suggestion of the Prime Minister.
The Government is composed of the Prime Minister, the Deputy Prime Ministers, the Ministers and the Heads of the Ministry-equivalent bodies. The term of the Government corresponds to the term of the National Assembly is five years.
A comprehensive list of Ministries and Ministry-equivalent authorities is available on the website of the Vietnamese government.
Partly due to the limited capacity of the National Assembly, the Ministries have important influence on Vietnamese legislation. See the section on Legal System.
Vietnam is organized into 63 provinces, which are subdivided into districts. Below districts are communes. A list of the 63 provinces with links to the website of each provincial government is available on the website of the Vietnamese government.
Each of these three geographic levels (provinces, districts and communes) has their own local government consisting of a representative body elected by the local people every five years named the People’s Council and the administrative body named the People’s Committee, whose members are elected by the People’s Council.
Vietnam has a two-tier court system, including courts of first instances and courts of appeal. The judgments are then susceptible to further reviews under special circumstances. The court system consists of the Supreme People’s Court, the local People’s Courts (include the provincial People’s Courts and the district People’s Courts), the Military Courts and other law-prescribed courts.
There are specialised courts at the Supreme People’s Court and at the provincial level. These include the Criminal Court, Civil Court, Economic Court, Administrative Court and Labour Court.
The Chief Justice of the Supreme People’s Court is elected by the National Assembly, and has the term corresponding to the term of the National Assembly and can be re-elected. Other Justices of the Supreme People’s Court are appointed and removable by the President and have the term of 5 years. The Chief Justice of the Supreme People’s Court appoints and removes judges of the inferior courts.
Under the law, Vietnamese courts render their judgments independently. However, there are still many concerns on the independence of the courts.
The tribunal panels at the first instance are composed of both judges and people’s jurors (usually one judge and two people’s jurors). People’s jurors at each level are lay people elected by the People’s Council of the same level at the recommendation of the Vietnam Fatherland Front and could be re-elected. The participation of these jurors who are not qualified legal experts and who are elected, re-elected and removable by the local governments raises questions on their capability and on the influence of the local governments on the court’s activities.
The Law in 2002 centralized the power to appoint judges to the Chief Justice of the Supreme Court instead of the local People’s Council (as previously the case). The budget of the local courts, previously decided by the provincial Departments of Justice, is now decided by the National Assembly. This intends to make the local courts more independent from the local government.
Another factor leading to the concerns on the independence of the courts is the unwritten practice of local courts requesting for opinions from the superior courts in complex cases.
Judgments in Vietnam are not publicly published and it is difficult to get access to past judgments.
The government is carrying out a judicial reform program, which hopes to improve the operation of the courts. [] The country is also pressed for changes under the commitments made in its adhesion to the World Trade Organisation.
The People’s Prosecutor has the mandate of public prosecution and judicial supervision. Similarly, in the structure of the court, the People’s Prosecutor is organized into three levels: the Supreme People’s Prosecutor, provincial People’s Prosecutor and district People’s Prosecutor. In addition to People’s Prosecutor, there is the Military Prosecutor.
The whole system of People’s Prosecutor and Military Prosecutor is under management and instruction of the Supreme People’s Prosecutor. The Chairman of the Supreme People’s Prosecutor is elected by the National Assembly at the proposal of the State President, and has the term corresponding to the term of the National Assembly and can be re-elected. The Vice-Chairmen of the Supreme People’s Prosecutor and its prosecutors are appointed, removed from office and dismissed by the State President at the proposal of the Chairman of the Supreme People’s Prosecutor. The Directors, Deputy-Directors and prosecutors of the local People’s Prosecutor and the Military Prosecutor are appointed, removed from office and dismissed by the Chairman of the Supreme People’s Prosecutor.
In criminal cases, the People’s Prosecutor carries out the public prosecution role. In non-criminal cases, the People’s Prosecutor supervises the resolution of the cases and has the prerogative to participate in any part of judicial proceedings except for the conciliation process. Usually, it reviews the file, hears evidence and arguments and makes recommendation to the tribunal panel.
In addition, the People’s Prosecutor supervises the enforcement of the judgments.
Alternative Dispute Resolution
Culturally, Vietnam is not a litigious society. Large amounts of disputes are resolved outside of court. Vietnamese laws also highly emphasize the role of mediation. Mediation is a mandatory part of certain litigation procedures such as civil litigations, labour and marriage and family litigations. The State encourages the resolution of civil and family disputes and violations of the law, which do not amount to criminal offences by means of mediation. At the local community, groups of non-professional mediators are set up to carry out this mediation mandate.
Arbitration is a possible alternative for dispute resolution in Vietnam but restricted to commercial disputes only. Arbitration was not a popular dispute resolution means in Vietnam due to weak enforceability.
The Ordinance on Commercial Arbitration adopted in 2003 attempted to improve the effectiveness and enforceability of arbitration in Vietnam. Under the Ordinance 2003, arbitration award given by a Vietnamese arbitration tribunal is automatically enforceable, i.e. the parties no longer have to seek a decision of the court for the execution of the arbitral award. The most well known Vietnamese arbitration organization is the Vietnam International Arbitration Centre at the Vietnam Chamber of Commerce and Industries. By the year of 2013, there are 7 Arbitration Centres in the whole country.
Vietnam is a member of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
As part of Vietnam’s judicial reform, it is expected that arbitration will be used more widely in civil disputes and not restricted to commercial disputes.
The hierarchy of Vietnamese legal texts is as follows:
|National Assembly||Constitution, Law, Resolution|
|Standing Committee of the National Assembly||Ordinance, Resolution|
|Prime Minister||Decision, Directive|
|Ministers and head of ministry-level bodies||Decision, Directive, Circular, Joint Circular (issued collectively by different ministries or by a ministry and a political and social organisation)|
|Justice Council of the Supreme People’s Court||Resolution|
|Chief Justice of the Supreme People’s Court/ Head of the Supreme People’s Prosecutor||Decision, Directive|
|People’s Committee||Decision, Directive|
Legal texts are published on the Official Gazette.
Vietnam’s legal system is fast evolving and the legislation work has significantly improved. In line with the increasing number of legal texts, the Official Gazette increased its publications from two issues per month in 1995 to daily in 2004. The number of laws and other legal texts also increases rapidly. From early 2003, legal texts must be published in the Official Gazette as a compulsory condition for becoming effective. This compulsory publication is a great improvement compared to the previous situation where most legal texts became effective 15 days after the date of signature and not all legal texts were published. The dynamism and transparency of the legal system, as a result, were improved significantly.
Legal texts are searchable free of charge online through the portal of the National Assembly, the Government, ministries, governmental agencies, 63 provinces, courts and prosecutors. Publication of legal information on websites is also regulated under the law.
Despite these significant improvements, Vietnamese legislative work is still weak resulting in the legal system being inadequate and unstable. One of the reasons explaining this shortcoming is the function of the National Assembly. The National Assembly does not consist of professional and specialized legislators. Its members are working people gathering only during two 30-day sessions per year. Its mandate of approving the country’s economic and social development plans, financial and monetary policies, the national budget, as well as questioning the Government’s activities takes up a large amount of time, leaving a modest agenda to legal debate and approval of laws. On the other hand, its legislation workload increased tremendously under the country’s commitment under the 2000 U.S.-Vietnam Bilateral Trade Agreement and under the commitments in its adhesion to the World Trade Organization. Most of laws are passed after one or two sessions of debate by the National Assembly. Vietnam’s first Competition Law, as a typical example, was given four days of debate before being passed into Law in November 2004. The input of the National Assembly on the country’s laws is therefore still limited.
In practice, the real legislators are the administrators, particularly the Ministries. A set of rules on a specific issue in Vietnam typically includes: (i) a law drafted by a relevant Ministry, consented first by the Government, then approved by the National Assembly; (ii) an implementing Decree drafted by that Ministry and issued by the Government; and (iii) an implementing Circular issued by the same Ministry. Adding to this, a significant number of parliamentarians are administration officials. This has important effects on the National Assembly’s decision. Laws are usually drafted in such general terms that they are not enforceable without the implementing decrees and circulars.
This legislation process magnifies the power of the executives, conferring on them the unwritten power to interpret law. Constitutionally, this is in the power of the Standing Committee of the National Assembly. In the absence of a specialized and effective supervisor of the constitutionality and legality of legal documents, interpretation of the executive bodies sometimes results in a de facto amendment to the law.
Jurisprudence is not recognized as a source of law and is not part of the legal system. However, as a matter of practice, every year, the Supreme People’s Court produces a collection of typical cases with comments and instructions. These treatises are relied on heavily by the inferior courts. Parts of these documents are accessible through the website of the Supreme People’s Court.
There is no formal process of codification in Vietnamese law. In certain important areas where the law issued by the National Assembly is relatively comprehensive and complete, the name “Code” is used. To date, following are the major codes: the Civil Code, the Civil Procedure Code, the Criminal Code, the Criminal Procedure Code, the Labour Code, and the Maritime Code.
Informal compilation of legal texts in specific areas are carried out and published by different publishing houses. The most reliable source is the National Political Publishing House, which publishes a wide range of legal texts and compilations of legal texts. The National Political Publishing House operates under the Communist Party of Vietnam. It has been assigned by the Politburo the mandate of publishing political and legal publications.
The legal profession in Vietnam is regulated by the Ministry of Justice and the bar associations set up in each province. Practicing law in Vietnam requires a certificate of law practice issued by the Ministry of Justice and admission to the bar association at the place of residence of the lawyer. The relevant bar association will issue Lawyer Licence to its members.
The Vietnam Lawyers Federation, a nationwide lawyers’ association, was established in 2009 to regulate the profession on a national level. The local bar associations are members of the federation.
Like the Vietnamese legal system, the growth of the legal profession in Vietnam was greatly influenced by the demand of economic growth and of the country’s open policy. Before the promulgation of the Ordinance on Lawyers in 2001, admission to the bars was at the discretion of each bar association and was thus very difficult and in some provinces impossible. The Ordinance makes the admission to the bar a matter of rights as long as the applicant satisfies the requirements provided by law. This, together with the rapid economic growth in the last few years, has helped increase the number of lawyers rapidly. From 369 lawyers in 1991, the number of lawyers has increased to 2,100 in 2001, 5,000 in 2007 and more than 7,200 in 2012.The number, experience and exposure of Vietnamese lawyers are however still modest. The Vietnamese government is putting effort in improving the experience and competence of its lawyers, seeing this essential in the country’s integration into the global economy.
The legal profession has also witnessed liberalisation recently as one of the commitments under the services schedule made by the Vietnamese government in its adhesion to the World Trade Organisation. With the adoption of the Law on Lawyers in 2006, foreign law firms in Vietnam can now advise Vietnamese laws and have the audience of Vietnamese courts through their employed Vietnamese lawyers. Before the 2006 Law, Vietnamese lawyers employed by foreign law firms were not allowed to appear in courts and before the 2001 Ordinance, foreign law firms in Vietnam were not allowed to employ Vietnamese lawyers or advise on Vietnamese laws at all.
The lack in number of lawyers is explained by the non-litigious nature of the Vietnamese society, the stage of development of the Vietnamese legal system, the lack of competence of the court and the limited involvement that Vietnamese lawyers are allowed in the litigation process. With the ongoing judicial reform, the involvement of lawyers in litigation procedure has recently become subject to great debate, which has resulted in improvement of the role of the profession in recent years.
The research resources on the Vietnamese legal system are still limited. Following are some useful resources.
- The Institute on State and Law has a library at 27 Tran Xuan Soan, Hanoi, Vietnam, Tel.: (844) 39713 334
- The National Library has a collection of diverse materials including legal materials. Notably, it has certain resources on the old legal texts and legal system before the establishment of the current government of Vietnam. It is located at 31 Trang Thi, Hanoi, Vietnam, Tel.: (844) 38255 419
- The Central Institute for Economic Management under the Ministry of Planning and Investment carries out certain researches on business law issues. Their library contains the Official Gazette, Vietnam Law Database and other materials relating to Vietnam’s economic reform.
- The Centre of Library Information and Science Research under the National Assembly Office of Vietnam. Its collection contains a collection of instruments of the National Assembly’s sessions, the Official Gazette, Vietnam Law Database and other materials relating to Vietnam’s legislation and legal reform.
- The Institute of Legal Science under the Ministry of Justice carries out certain research on law field. Their library contains a collection of research works at state and ministerial level, publications published by the Institute of Legal Science, the Official Gazette, Vietnam Law Database and other materials relating to Vietnam’s legal reform.
- The Library and Information Centre under Hanoi Law University at 87 Nguyen Chi Thanh Street, Hanoi, Vietnam. Its collection contains more than 180,000 volumes of textbooks, legal books, master theses and PhD. dissertation, research works, law journals and legal databases, see here.
- The Library and Information Centre under Ho Chi Minh City Law University (HCMULAW) at 2 Nguyen Tat Thanh Street, Ho Chi Minh City, Vietnam. It has a collection of about 70,000 volumes of textbooks, legal books, master thesis and PhD. dissertation, research works, law journals and legal databases here.
- Part of the World Bank’s global network of public information centers, the Vietnam Development Information Centre has a collection of materials on Vietnam and Vietnamese economy by the development actors.
- The English translation of the Official Gazette is published by Vietnam News Agency. All legal texts are now published on the Official Gazette.
- The Vietnamese version of legal texts can now be accessed online for free here, managed by the Office of the National Assembly.
- The Government’s website provides a database of legal texts in Vietnamese with search function.
- The Ministry of Justice also publishes a database containing legal texts in Vietnamese from 1945 onward, which can be found here and legal texts in English, which can be found here.
- The Ministries’ websites publish certain legal texts in their areas of responsibility in both Vietnamese and English. Links to websites of the Government’s Ministries can be found here.
- Draft legislations (in Vietnamese) are now published on a website run by the Office of the National Assembly
- Law firm Allens Arthur Robinson provides a database of English translation of Vietnamese laws with a focus on commercial laws and foreign investment laws. Some legal texts in English could be accessed for free here.
- Luatvietnam.vn is a database providing legal texts in both Vietnamese and English with search functions.