作為私法法源的法律學說──俄羅斯和越南的觀點

Legal Doctrine as a Source of Private Law: Perspectives in Russia and Vietnam

本文回顧了作為私法法源之法律學說的概念，以瞭解法律是如何演變的，並能夠預測其未來的發展。在越南，雖然法律學說不是官方來源，但它在科學方面以及立法和法律實施方面都對法律的發展產生了重大影響。學說對法律制度的影響以多種方式展現，並受到日本、德國、俄羅斯等其他司法管轄區的啟發。本文分析了作為私法法源之法律學說的形成過程及其在越南法律體系中的作用，以及法律學說在私法法源體系中的作用和地位。本文旨在承認法律學說是立法行動的基礎：它有助於對正在進行的法律程序的性質提供見解和令人信服的解釋，也回答司法實踐中出現的問題，而且有助於法官、律師和民事交易中的所有行為者。基此，越南法律的制定和實施必須考慮法律學說的建言作用，特別是在法院判決中允宜參酌學說見解，以促進越南法學之進步。

This article reviews the concept of legal doctrine as a source of private law to understand how the law has evolved and to be able to predict its development in the future. Although legal doctrine is not an official legal source in Vietnam and Russia at this time, it significantly influences the development of law in both the scientific aspect and the legislation and law implementation aspect. The influence of doctrines on the legal system is expressed in many ways and inspired by other jurisdictions such as Japan, Germany, Russia, etc. The article analyses the ongoing process of forming legal doctrine as a source of private law and its role in the Vietnamese legal system, as well as the role and position of legal doctrine in the system of private law sources. This process remarks with different imprints from different jurisprudences. However, it shows the most similarities with views in Russia due to the historical context created by a generation of scholars imbued with Soviet legal theories. Because earlier generations of Vietnamese legal scholars (after Vietnam's Independence) were mainly trained in Soviet Union (later Russian) law institutions. Therefore, the discussion in the following parts mainly shows the perception and opinion of Russian scholars, but they are also mainstream in Vietnam. The role of legal doctrine as a source of private law is viewed in line with the characteristics of the contemporary stage of development -the growing role of information, the affirmation of scientific foundations as an engine of social progress in general as well as in the field of law in particular and especially the tendency towards mutual permeability of legal systems as well as legislative practice are still contradictory in the current period in Vietnamese laws.
The article aims to recognize legal doctrine as a basis for legislative action. It helps to provide insights and convincing explanations of the nature of ongoing legal processes, answer questions that arise in judicial practice, and development of decisions that not only correspond to the ideas of the legislator but also contribute to the formation of decisions correspondence not only of legislators but also judges, lawyers and all actors in civil transactions. Based on that, the making and implementation of law in Vietnam must consider a more significant role of legal doctrine, especially in court adjudication.