Tiêu chí lựa chọn án lệ của một số quốc gia trên thế giới và kinh nghiệm cho Việt Nam

The increasing complexity of modern legal systems and the inherent limitations of written law have underscored the pivotal role of case law globally. In contexts where statutory provisions are ambiguous or absent, judicial decisions become crucial, effectively shaping legal principles and ensuring justice. While the establishment and application of precedents have gained considerable attention worldwide, countries like Vietnam, which have a relatively nascent history in formalizing case law, face unique challenges in identifying and selecting judgments that can serve as authoritative precedents. This paper aims to explore the diverse criteria employed by various nations in selecting case law, providing a comparative analysis, and deriving practical lessons to enhance Vietnam's evolving legal framework, particularly concerning the effective implementation of án lệ.

Legal scholars, practitioners, judges, policymakers, and researchers interested in comparative law, judicial precedent, and legal reform in Vietnam and other civil law jurisdictions.

This academic paper comprehensively examines the criteria for selecting case law across various global jurisdictions, drawing critical lessons for Vietnam. It begins by establishing the growing importance of án lệ due to the inherent shortcomings of codified legislation, where judges often act as supplementary lawmakers in resolving novel legal issues. The paper meticulously defines án lệ, differentiating between its broad and narrow interpretations, and highlights the conceptual distinctions between Common Law and Civil Law traditions regarding its legal authority. A core focus is the detailed analysis of selection criteria in countries such as the UK, USA (Common Law), and France, Japan, South Korea (Civil Law), revealing both their unique approaches and convergent trends. Common criteria include addressing significant legal issues without prior precedent, offering solutions to emerging legal problems, articulating clear legal principles (ratio decidendi), and overturning previous precedents. For Vietnam, the paper identifies that the current approach, enshrined in Resolution 04/2019/NQ-HĐTP, adopts a narrower understanding of án lệ, akin to Civil Law systems. While acknowledging Vietnam's efforts, the analysis points out significant limitations in its selection criteria, such as the qualitative and complex nature of requirements, and the difficulty for lower court judgments to meet all conditions, leading to slow adoption rates (approximately 10 precedents per year). To overcome these hurdles, the paper proposes key reforms: simplifying the criteria by requiring only one condition to be met, separating ambiguous criteria, and potentially re-evaluating the "standard" nature requirement to foster greater flexibility and broader áp dụng án lệ within Vietnam's legal system. The ultimate goal is to enable án lệ to more effectively supplement statutory law and guide judicial practice.