The data and information from the review of primary legal sources and secondary literature and the data obtained from and interviews were analysed to consider the effectiveness as well as any deficiencies in the laws relating to state liability. The strengths and weaknesses of Vietnamese procedural laws and the mechanisms for enforcement of the SCL have also been critically assessed to consider whether they are effective. Some comparisons were also made of key issues identified in the law and procedures with some other jurisdictions, particularly China.
The methods used to analyse data in qualitative research depend on the methodological design chosen to conduct the research: qualitative or quantitative. There are many different types of qualitative data analysis: thematic analysis, comparative analysis, discourse analysis (conversational analysis), content analysis, and so on.229 As indicated in the previous chapter, the aims of research are to (1) review and analyse theories and policies relating to state liability; (2) critically evaluate the appropriateness of present laws on state liability in Vietnam; (3) review and analyse the enforcement of the SCL including procedural law and practices; (4) review and examine the enforcement of laws relating to state liability in some selected comparable jurisdictions, including China, and (5) consider appropriate reforms to the Vietnamese law and processes for determining and enforcing state liability. Hence, the method used for this research is a combination of thematic analysis, content analysis and comparative analysis.
2.5.1. Thematic analysis
The analysis of data by theme or thematic analysis230 is the most common form of analysis in qualitative research.231 It emphasizes pinpointing, examining, and recording patterns (or "themes") within data.232 Themes are patterns across data sets that are important to the description of a phenomenon and are associated with a specific
229 Dawson, above n 211, 114-123. 230 Ibid 119.
231 Guest, Greg, Applied thematic analysis (California: Sage, 2012) 11.
232 Braun, Virginia; ‘Using thematic analysis in psychology’. Qualitative Research in
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research question.233 Thematic analysis provides a flexible method of data analysis and allows researchers with various methodological backgrounds to engage in this type of analysis.234 This is also related to phenomenology in that it focuses subjectively on the human experience.235 In using this method, the researcher categorized the themes including theories, the nature of state liability, the present substantive law on state liability, procedures to resolve compensation claims and the SCL’s enforcement. Sub- themes which make meaningful contributions to understanding the research questions were also considered and analysed, such as the scope of state liability, the grounds for state liability, the method of calculating the damages, reimbursement by state officers, agencies liable for compensation, agency responsible to resolving disputes, time limits on claims and so on.
One of the disadvantages of using thematic analysis is that it sometimes leads to difficulties in analysing those issues that are closely related to each other. For example, the ground for state compensation is closely connected with the procedure of having to obtain a valid document confirming the wrongful actions of state officers. If the researcher were to separate it into relevant issues, the analysis may be not comprehensive or complete. However, if the researcher analyses it simultaneously with other issues, it may lead to a repetition when the researcher analyses the remaining issue as a separate theme. In this situation, the researcher tried to analyse one theme first. Then, when analysing the next theme, the researcher referred to previous analyses to avoid repetition.
2.5.2. Comparative analysis
Closely connected to thematic analysis is comparative analysis. Using this method, data from different people is compared and contrasted and the process continues until the researcher is satisfied that no new issues have emerged.236 Comparative and thematic analyses are often used in the same project, with the researcher moving back and forth between legislation, notes and the research literature. According to Michael, knowledge
233 Daly, Kellehear & Gliksman, The public health researcher: A methodological approach (Melbourne, Australia: Oxford University Press, 1997) 611–618.
234 Braun, above n 232, 27.
235 Greg S Guest, Kathleen M Macqueen, Emily E Namey, Applied Thematic Analysis (Sage, 2012) 12.
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arises mostly out of comparison and the discovery of regularities.237 Yntema notes the importance of the comparative legal research in looking for the ‘cave’238 which helps to determine the gaps between the law (including the SCL) and practice. Also, Paton argues that it is impossible to conceive the existence of jurisprudence without comparative law.239 That is why De Cruz emphasizes that some of the functions and purposes of comparative law are a means of understanding legal rules, an aid to legislation and law reform, and a tool of construction.240 As shown in Chapter 1, Vietnam has been conducting a reform process to further develop the country. In order to quickly and effectively comprehend the legal system including the SCL, comparison is a significant instrument. One way to quickly change the law may be to adopt and adapt laws from other jurisdictions.
In this research, the comparative method has been used to compare and contrast the information derived from the various sources of data. It is also used to compare and contrast the present and previous laws on state liability for compensation. Furthermore, the methodology is important in comparing laws and their implementation in Vietnam with those of other jurisdictions so as to understand the nature of state liability for compensation to discover deficiencies in the laws, and the discrepancy between the law and its enforcement; and to find out the solutions for better reform. This methodology has been important in analysing and articulating the conclusions drawn in this thesis, especially in Chapter 7.
2.5.3. Content analysis
Content analysis (or textual analysis) is “a research technique for making replicable and valid inferences from texts (or other meaningful matter) to the contexts of their use”.241 In content analysis, the researcher uses analytical constructs, or rules of inference, to
237 Haas, Michael, ‘Comparative Analysis’ (1962) 15 (2) The Western Political Quarterly 296. 238 De Cruz, above n 173, 19.
Yntema did not express it as such but he was illuminating law not by the light of empirical or doctrinal science, but by the light of humanities.
Pier G Monateri (ed), Methods of Comparative Law (Edward Elgar Publishing, 2012) 85. 239 De Cruz, above n 173, 19.
240 Ibid 18.
241 K Krippendorff, Content analysis: An introduction to its methodology (Thousand Oaks, CA: Sage, 2nd ed, 2004) 18.
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move from the text to the answers to the research questions.242 Using this method, the researcher systematically works through each transcript assigning codes, which may be numbers or words, to specific characteristics of the text.243 By analysing the content of legislation, documents, cases and the text of the interview in which the messages are created or presented, the research questions are also answered. Firstly, the primary legal materials and interview collection have been analysed to clarify the law on state liability for compensation, the procedure and mechanism for settlement of the compensation dispute, implementation of the SCL. Secondly, the secondary literature has been used to further clarify the primary data where there is uncertainty or a lack of depth as well as to develop and critique ideas of state liability for compensation. Some of the secondary sources have been used in a socio-legal analysis to analyse and refine the research questions and the aim of the project. The content analysis is presented in Chapters 4 and 5 and 6 of the thesis.