CHAPTER 1: STATE AND LAW

1. Definition of law
Law = a body of rules, created by the state (only National Assembly)
= binding within its jurisdiction
= enforced with the authority of the state through the use of sanctions
2. Sources of law in Vietnam
 Legislation:
- Constitution (2013) = role as supreme law (highest in legal system)
If a law is contradictory to the Constitution, it means that law is unconstitutional (vi hiến)
and needs revised or abolished
+Editions: 1946, 1959, 1992, (2001 sửa đổi bổ sung), 2013
+Chapters:
- Acts (Luật)
- Codes (Bộ luật)
 Delegated legislation:
- Ordinances: pháp lệnh
- Decrees: nghị định
- Circulas: thông tư
- Decisions: quyết định
*DIFFERENCE BETWEEN LAW AND CODE:
- Similarities:
+share the same political role
+equally legal
- Difference:
+Law: specific issue
+Code: all kinds/aspects of life
 Applying law or code depends on the governance scope (phạm vi điều chỉnh)
Ex: 2 companies  law

*FOUR TYPES OF DELEGATED LEGISLATION

DELEGATED WHO? MAIN FUNCTION
LEGISLATIO
 N
ORDINANCE Standing committee of national assembly  Cover the issues which are
(Uỷ ban thường vụ quốc hội) / not by the state changing, unstable/ sth new not
mentioned in the law yet (law
sometimes outdated from life)
DECREE The government  Provide detail guildance of the
Made by the organization, not individual article on the law
 Cover sth new but not as important
as to be an ordinance
 one law can become many decrees
CIRCULAR Many different bodies, individuals, not  Provide the detail guildance on the
organizations decree
1. executive judge of the supreme people’s court  one decree makes many circulars
2. chief procurator of the supreme people’s
procuracy (viện kiểm sát)
3. minister(s)
4. head(s) of the 4 misterial-level agencies: the
Committee for Ethnic Minority Affairs; the State
Bank of Vietnam; the Government Inspectorate of
Vietnam; and the Government Office
DECISION Several bodies: prime minister, president, People’s  No fundamental functions, because
committee of provinces/ districts/ communes, state it’s from central level, local level
auditor general

 Comparison: ORDINANCE > DECREE > CIRCULAR

(We cannot compare the decision because it’s about specific issue)

*NOTE:
 ORDINANCE:
(law sometimes outdated from life)
 DECREE:
Made by the organization, while the prime minister is the one, so he cannot
-Main function:
sometimes law is general, which may not cover all the activities, not enough
one law can become many decrees (ex: sales of good, investment, franchise, provision of
service,…) so decree No. /NĐ – CP
Between decree and ordinance, ordinance is higher legally facility
CIRCULAR: made by many different bodies, individuals, not organizations (ar.25)
1.executive judge of the supreme people’s court = thẩm phán, chánh án
2.chief procurator of the supreme ppl’s procuracy = viện kiểm sát
3.minister(s) = bộ trưởng
4.head(s) of the misterial-level agencies = cơ quan ngang bộ /4 agencies: the Committee for
Ethnic Minority Affairs (Uỷ ban dân tộc); the State Bank of Vietnam (STB=ngân hàng nhà nước
VN) ; the Government Inspectorate of Vietnam (thanh tra chính phủ); and the Government
Office (văn phòng chính phủ)
Ex: governer of STB
DECISION:
Minister of ministry can issue decision, but its not delegated legislation
Ex: directive is not legislative (chỉ thị)
Resolution: nghị quyết
Joint resolution: nghị quyết liên tịch
Joint circular: Joint (made by at least 2 bodies)
Official letter(s): công văn by state agencies, any other agencies in VN, not legislative
EXAMPLE:
Decision 411/ QD – TT by the prime minister Vu Duc Dam (31-03-2022) with a view to
approving the national strategy for developing the digital economy and digital society to 2025,
with a vision to 2030

3. Categories of Law

Commit a crime
1. Investigation  police
2. Prosecution (truy tố, khởi tố)  ppl’s procuracy
3. Hearing (xét xử)  ppl’s court
Procuracy always paticipates hearing
CRIMINAL:
Two main prupose:
Punishment purpose, prevention function
Parties: public prosecutor (công tố viên) / accused (trc khi ra toà)/defendant (sau khi ra toà)(bị
cáo/bị can)
In the court (suspector) be called as defendant until being issued by court
Beyond reasonable doubt: standard of criminal law, when you want to say a person is guilty, you
need strong evidence. If there is a doubt,
Not suffer wrong accusation
Commit someonerequire strong evidence
Balance of probabilities: less serious than criminal case
More 50%, not that high standard compared to criminal
Damages: bồi thường thiệt hại
Specific performance
1. Criminal
roberry
2. Civil
may not affect anyone else
3. Civil
land loss
4. Criminal
criminal code: article 1,2,3
5. 2 ways: more than 61% physical injury or die criminal
Less than: civil (three year community sentence): cải tạo k giam giữ
6. Civil
conflict between family
7. Civil
violation the sales contract between seller and buyer
8. Ar.317
food safety, subject to the criminal law
9. Criminal + civil
murder
10. Criminal
11. Criminal (151)
12. Civil
conflict between companies  civil law
PRIVATE LAW AND PUBLIC LAW
 Private law: luật tư
- Definition:
+ It deals with the relationships between ordinary people in everyday transactions
+ That includes you and me, as well as businesses and companies
- Includes:
+ Contract law: business owners/companies, indiviuals and organizations,
+ Tort law (luật bồi thường thiệt hại ngoài hợp đồng): a legal system that aids in the
resolution of disputes between private citizens without the use of jail time, ex: you are
injured less than 61% in traffic accidents and sue the other, affect sb on the internet and
cause spiritual damage (many cases in civil code)
+ Property law (luật sở hữu): ownership and usage, serve the relationship between bodies
 and bodies in society
+ Family law: the laws that govern marriage, divorce, child custody, and other family
matters. Family law is a branch of private law that deals with civil matters. Family law
includes divorce law, child custody law, and adoption law.
+ Company law:
 Public law: luật công
- Definition:
+ It deals with the relationships between government organisations and ordinary citizens
– also between different government organisations
- Example:
+ Constitution law: government and its citizens, (chap2/consti), relationship between
different different bodies
+ Administrative law: between citizens and the state bodies (cross red lights, get married
 local ppl’s committee)
+ Criminal law: who commits the crime (criminal) and victim, defenders and government
(court)
+ International law:
+ Tax law: citizens and

- Difference: the involvement of the state  public law(state bodies/agency: cơ quan nhà
nước) ex: ministry, department of education,..
SUNSTANTIVE LAW AND PROCEDURAL LAW:
 Substantive law: luật nội dung
- Civil code
- Criminal code: consider your behavior is crime or not, punishment
- Commercial law: agreement between companies, what rights and obligations
- Law on enterprises: mua và bán lại cty
- Maritime code: governs carriage food by sea, rights and obligation
 Procedural law: luật hình thức/tố tụng tells about the procedure/process
- Civil procedure: the rules, regulations and standards for the courts to follow during the
cases relating to civil matters and various civil trials. govern how a civil suit or case
should commence and the procedures to be followed during a case
- Criminal procedure law: about the process , what shout do, should follow in case
- Commercial arbitration law: substantive and procedural, rights, obligations, process,

Content of partion(ndung đơn kiện),

649 ar in civil code for a problem relevant to properties in family (heritance)

COMMON LAW AND CIVIL LAW: legal systems tell how the law systems are organized
Refer to particular legal system
COMMON LAW: thông luật
He thong phap luat anh my
India, hongkong, singapore, malaysia
CIVIL LAW:
He thong phap luat chau au duong bien
China, VN, germany, france
Some countries which have a province or area follows another law with their countries. Bc
theyre governed by others
Islamic law: pháp luật hồi giáo/ between the law and religion/ kinh quran/ ppl hide their face and
hair, just show up to the husband only/ not allowed to eat pork bc pig is considered unclean and
ugly/ use only halal food/special regulation
 learn about the culture/ interest would be invalid
 COMMON LAW:
Judge-made law/ precedents: án lệ = a principle or rule established in a previous legal case
relevant to a court or other tribunal when deciding subsequent cases with similar issues or facts/
judgement: bản án của toà án; arbitral award: phán quyết in arbitration/ set out some rules that
can be applicable in the future cases, judgement become the law when it become precedent that
can be apllied to anybody
Case law: a part of precedent/ doctrine: hoc thuyet
standor decided by the court
2 aspect:
1. Overturn: cannot change/ go against its own precedent
2. Lower follows higher: the row of the precedent

Pros and cons of using precedents:

- Pros:
+ time-saving
+ consistency, uniformity
+ risk reduction
+ fairness
+ flexible to deal with new issues
- Cons:
+ somehow the precedent/case law is rigid and inflexible bc it is not suitable for the time
being
+ segregation but equality (US law for discrimination between black and white)
+ hard to change
+ complexity/sophisticated system: huge, many different cases, not easy to find, not for
 everyone’s case
+ conflict and confusion
Do we have precedent in vn? Who? The role of precedent in vn and othe common law countries
We do have precedents. From 2019.
District  province  High ppl court (toà án nhân dân cấp cao)
Supreme ppl court: they select and pronounce precedents to the community base on the
website: công bố án lệ. we are still developing precedent system
Ar 5 and 6 in civil code, ar 45 in civil procedure code
Source of law in Vn be divided into 2 types. There are some others we can apply in order:
hierachy to apply if no law
- custom (tập quán): established and repeated for a long time, widely used by the
community. Ex: chơi hụi/biêu/họ  not covered by the law, be established by community
- legal analogy/analogous law (tương tự pháp luật): no law governing the case, but a law
has similar nature to case, so they can be applied
- basic principle of the civil law (ar 3)
- precedent
- equity (lẽ công bằng): define under ar. 45 in civil procedure code, standard of society
base on equality and humanity, quality acceptable by society
Term: “statute” = quy chế
If there is nothing to apply, case has to deal with sth new,
Function: update sth new not mentioned in law(1)/make argument more convincing(2) how:
when the court make judgement, he can apply the precedent announced by supreme court,
making it more convincing and persuasive  role is limited bc its new in our life
case law is not legal document, but still applied
statute vs precedent: we should fl statute first, bc created by the president, while precedent
created by the judge of community
do civil law country have precedent? depend on the country, as Vn introduce precedent
recently, can be limited but still available in civil law country
statute in common law country
3. substantial influence? Legal scholars are Not legal document
LEGAL NORM: quy phạm pháp luật
- small part of law
- a mandatory rule of social behaviors
 Element:
- Hypothesis: giả định/ provide the context or background like who and in which situation
- Disposition: qui định/ rights and obligations (compulsory) and liabilities(we do sth wrong
and compensate for it), what thing we are allowed to do, what to be entitled to do
- Sanction: chế tài/legal consequence or punishment when failing to apply
 Ex: 1. Hypothesis (if the buyer discover goods in damage) + disposition (right not to pay or
pay a part)
2. hypothesis (a married man lives with another as spouse) + sanction (be imprisoned from 3
months up to 1 year)
3. hypothesis (if the value of leased property decreases …received) + disposition (be entitle
to demand damages)
Ar 90 of constitution: how many legal norms and their element:
Every one has the right to live. (hypothesis)
Human life is protected by the law. (disposition)
No one (hypothesis) shall be illegally deprived of his or her life.(disposition)
2000 same-sex marriage was prohibited
2014 changed
Late coming compared with labor code
ORIGIN OF STATE
What are reasons of the birth of states?
- No discrimination among people  no conflict/control ppl
ruling class and ruled class rulling class protect themselves  existence of the state
What is a state?
Make sure they can manage/in western countries,
Separation of power: học thuyết phân quyền
Legislative power: quyền lập pháp/national assembly/ power to make the law
Excutive power: quyền hành pháp/ power to administer the law/ central government(minister
of ministry, local ppl council)
Judicial power: quyền tư pháp/interpret the law/ppl’s court:hearing the case and ppl
procuracy: 1. Prosecute ppl in criminal 2. Supervise the judgement of court and angency
Why can the standing committee of national assembly (not the national assembly) and the
court interpret the law though they are different? There is limitation, twice a year adjusting,
urgent action, frequent activity
FORMS OF STATES:
Unitary state: nhà nước đơn nhất (Vietnam, bc law in every province not separated from the
law)
Federal state: nhà nước liên bang
 Monarchy: control by one person(king/queen) / chế độ quân chủ
- Absolute monarchy: quân chủ chuyên chế
- Constitutional monarchy: quân chủ lập hiến
 + Dualistic mona: qc nhị nguyên (quyền chia đều cho vua và nghị viện, sometimes, king
overwhelms parliamen)
+ Parliamentary mona: quân chủ đại nghị (vua đứng đầu, quyền thuộc parliament)

 Republic: controled by a group of ppl / cộng hoà

- Aristocrat: cộng hoà quý tộc
- Democratic: cộng hoà dân chủ
+ Presidential: cộng hoà nghị viện/tổng thống chế
+ Parliarmentary: chdc đại nghị
+ Mix: chdc hỗn hợp
+ People democratic: chdc nhân dân