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A Survey of the Legal System of The ,A SURVEY OF THE LEGAL SYSTEM OF THE.REPUBLIC OF VIETNAM February, 1971 Louisiana State University Law School Francis C. Sullivan Project Director W. Lee Hargrave Chief of Party W. Thomas Tete -Research Associate Prepared'for.the United States Agency for International Development under the terms of Contract AID/VN-50, TABLE OF CONZTENTS * CHA2TER I THE COURT SYSTEM 4 History p 3 Study of Existing System ,/ 7 &" V Courts of General Ju.--cdiction 9 Jurisdiction/ 12 Y Organization./ 23 Courts of First Instance V 29 K( Courts of Peace with Extended Jurisdiction , 39 Personnel / 39 K Functioning o2 the Various Court Offices / 43 Management2, of the Court Budget and Properties / 45 , Auxiliary Personnel / 49 X Discipline of Judges / 58 K Cost of Litigation V 61 f Litigation Time / 71 Non-Judicial Functions J 74 t Participation of Attorneys v 80 Statistics on Distribution of Attoineys in Vietnam 91 $'1,Courtis of Aneal c Jurisdiction . 92 p,Type oZ Review / 96 ' Operations / 99 K Organization/ 105 e Case Load -- 107 -Control of the Bar ' 114 Y, Publication of Decisions Al 120 The Su-renue Court *t Jurisdiction/ 122 Election of Justices / 143 / , Organization -- Administrative' 153 K Facilities 1/ 157 v Supreme Court Finances /" .. 159\ x Case Load ' 164 < Control of Lower Courts 7 166 Council of >agistrates 7 177 > Control Over the Bar , 181 k Non-Judicizl and Quasi-Judicial Functions of Members of the Supreme Court/ 183/ X Operations -- Procedural / 186 i VPublication of Decisions j" 200) / i - Courts of Limited Jurisdiction General 201) x Administrative Courts Y 205/ --. Special Courts / 210./' 1 Labor Courts / z Juvenile Courts~ /216 213 ,< Land Reform Courts / 225 <( Montagnard Custom Courts / 237 )e Pension Courts / 245/ CHAPTER II MINISTRY OF JUSTICE W :istory J "247 v. Functions V 248 9 Prosecutions 249 CA- Representing the Government 255 A Legal Advisor to the Government 256 SLaw Reform and Legislation 7 258 - Drafting of Regulations / 261 < Ccatrol of the Judicial Police / 262 K Control of the Rehabilitation and Detention Centers / 263 O' Organization and Administration . 265 K, Program of Reformatory Activities in the Second Half of 1969 / 273 CHAPTER III CAREER SYSTEM OF JUDGES AND PROSECUTORS / . The Career System / 277 a. The Judicial Career System k1 278 . The Prosecutor Career System 284 CLPTER IV PROCEEDINGS IN THE PENAL COURTS Introduction 288 Code of Criminal Procedure V 288 ilitary Courts and Province Security Comittees ' 316 Pre-Trial Detention 328 Pre-Trial investigation / -343 Right to Counsel - ' 358 Other Constitutional Rights 7 364 Operajions and Control of the Judicial Police / 376 Post Conviction Remedies -- Release from Unjust Government /385 APPENDIX A SUPREME COURT - LIST OF JUDGES 389 APPENDIX B MINISTRY OF JUSTICE - LIST OF PROSECUTORS 405 APPENDIX C MAPS 413. 2 THE COURT SYSTEM HISTORY Rooted *in Buddhist and Confucean philosophy, and influenced by periods of Chinese domination, early Vietnamese conceptions of law placed the legal system in a secondary position in the society's scale of values. Individual relationships were to be harmonized with natural laws and forces, rather than being governed by positive law; disputes were to be avoided and when they arose they were to be settled by face-saving compro­ mises'. Rulers were to be wise and just men adhering to Buddhist or Confucean principle rather than being circumscribed by enumerations oE powers. As with the Chinese, the early Vietnamese laws (primarily the Hong-Duc Code promulgated in the 15th century and the Gia Long Code pro­ mulgated in 1812) were more devoted to public order and security than to individual relations. They did not distinguish between criminal and civil law and incorporated traditional moral principles while providing penalties for what amounted to both penal and civil offenses. The adjudicating officer could disregard positive law if custom were otherwise. Even during the period of national independence (939-1884), Chinese influences continued to tailor the court system. The king was the ultimate authority in judicial matters. No separation between judicial and administrative functions was made, and disputes were settled by the king's administrative officials. Six levels of "courts" existing under this system until the middle of the 17th century gave way to three levels about the time of the beginning of the French domination. Developing earlier religious and economic influences in Vietnam, a France obtained the southern part of Vietnam, CochinChina, as a colony in 1862. The 1884 Giap-Than treaty provided for French protectorates over Annam (the center) and Tonkin .(the north). Irance introduced an adapta­ tion of its civilian system of procedural and substantive law and court.,., organization that has had lasting infldence. The attitudes toward law ' - have been slower to change. Different legal regimes were imposed on the three sections of Vietnam. The Republic of Vietnam being presently composed of the former sections of CochinChina and part of Annam, and the former legal regimes stillbeing in force to a great extent in those two areas, the country still has two systems of different, though clearly related, systems of law. In Annam, the 1933 Hoang-Viet Criminal Code and a criminal procedure code enacted in 1935 governed. A-civil code and a commercial code were enacted in 1936. In CochinChina,.a revised criminal code adopted in 1912, and a French-based code of criminal procedure were in effect. Civil and commercial affairs were governed by a summary of civil legislation promulgated in 1883, parts of the Gia-Long Code, the Hong-Due Code, and, as "ratio scripta" to fill in gaps, the French Civil Code, Commercial Code, and Code of Civil Procedure. The statutes remain in force, but there is about to be completed a reunification of the law which is expected to result in the adoption of five new basic codes -- Civil Code, Commercial Code, Criminal Code, Code of Criminal Procedure, Code of Civil and Commercial Procedure -- that will dpply uniformly throughout the Republic of Vietnam. Revision commissions have produced drafts for these new codes, three of which are presently pending in the legislature. These 4 codes are evolutionaryand retain the"civilian. tradition ,both in subs tatnee and procedure. Court organization was formerly a complex combination of jurisdictions using both French and Vietnamese.judges, as 'well as local administrative officials at the lower levels, working.in basically three levels of courts -- courts of limited jurisdiction, general trial courts,, and courts of appeal. As Vietnam was given more independence, Emperor Bao Dai promulgated Ordinance No. 4 of October 18, 1949, providing for the organization of the Vietnamese courts. A judicial agreement with France of December,. 1949, provided for combined French-Vietnamese courts that continued to function until September, 1954, when the French surrendered judicial power. Ordinance No. 4 of October 18, 1949, continues in effect and forms the basic law governing the Vietnamese judiciary and defining the existing judicial system. Superimposed on this French-modeled system is the Supreme Court envisioned by the 1967 Constitution. Until implementation of the 1967 Constitution, the entire judicial system was under the authority of the Ministry of Justice, a division of the executive branch of the government, and all magistrates -- prosecutors, examining judges, presiding judges -- were part of one career system. The new Constitution created the independent Supreme Court to replace the exist­ ing Court of Cazsation and gave it supervisory authority over the examinin­ and adjudicating judges, while the Ministry of Justice became essentially the prosecuting arm of the legal system, in addition to continuing to serve as legal advisor to the executive branch. 5. And finally'it goes without saying that the status of the courts and the law in Vietnam has been greatly influenced by the almost-continual fighting that has ravaged the country since World War II. Not only has the fighting inhibited the development of a large cadre of personnel to staff the courts and to enter the legal profession, it has prevented the creation of new courts in the provinces. A war-time economy has siphoned off funds needed by the judicial system and resulted in numerous emergency decrees, often overlapping and un-systematic, adopting severe security measures, in­ cluding administrative detention. Also, the powers of the military courts has been successively enlarged, giving these quick and efficient courts jurisdiction over civilians accused of a broadly-defined category of national security offenses. As a result, a substantial part of the country's administration of criminal,law is in the hands of the military and outside the regular courts. 6 STUDY OF EXISTING SYSTEM __.__ The purpose of the study was to undertake to describe, evaluate, and recommend changes in the existing 'system of courts in the Republic of Vietnam. However, in undertaking this study, it has been borne in mind that the structure of the Vietnamese judicial system is a dynamic, con­ stantly changing one. For that reason, the term "existing system of courts" has been given an interpretation other than merely that system which is, but'also that system which is becoming. For that reason when the system is described, it is assumed that the existing projets prepared by the Ministry of Justice will have been adopted at some point, which can be called the present in Vietnam. An attempt is made to evaluate the sys­ tem of Vietnamese administration of justice, not only on the basis of what is in operation now, but also on the basis of what is scheduled to become operative in the future. Of course, this does cause some distortion, but it is felt that this would be less distortion than freezing the survey of the administration of justice in Vietnam, especially the court system, at a point where no one contemplates that the system remain.
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