INTERNATIONAL SCHOOL

NATIONAL UNIVERSITY, HANOI

INTRODUCTION TO
VIETNAMESE LAW
GV. Hà Tú Cầu
Email: tucauha@gmail.com
Tel: 0913 000 202
2020
 CHAPTER I
OVERVIEW OF VIETNAMESE
LEGAL SYSTEM
Legal terms (exemples)
Lesson structure

I – Main issues of law

II – Types of law

II – Vietnamese legal system

I – MAIN ISSUES OF LAW

1. Origin of law
2. Nature of law
3. Roles of law
4. Characters of law
I. MAIN ISSUES OF LAW
WHAT IS LAW ?
• Poet W.H. Auden said, ‘The law is The Law’ and we
tend to know it when we see it. But it is a question
that philosophers and legal theorists have expended
many pages in trying to answer.
• Prof. H.L.A. Hart in his work titled ‘The Concept of
Law’ says that “few questions concerning human
society have been asked with such persistence and
answered by serious thinkers in so many diverse,
strange and even paradoxical ways as the question
what is law?
The following are some definitions of various
academics reduced to its most basic form:

• Law is a system of rules laid down by a body or

person with the power and authority to make
law;
• Law is what legislators, judges and lawyers
‘do’;
• Law is a tool of oppression used by the ruling
class to advance its own interests;
• Law is a system of rules grounded on
fundamental principles of morality.
Simply stated, ‘Law’ can be defined as a set of rules which
we are bound to obey (i.e. those rules which are enforced
by the State). Failure to obey laws would result in us
having to face certain repercussions. Like legal rules there
are social rules as well. Society may be governed by social
rules as well. It goes without saying that the two types of
rules are clearly distinct from each other.
Social rules could include ‘proper’ behavior or etiquette.
• Killing a human being is both wrong legally and socially. It
is hard to say which social rule should receive the force of
law and which should not. You are likely to be fined for
failure to wear a helmet while travelling on a motorbike.
But it might not be frowned upon as being socially
unacceptable to not wear a helmet. How a social rule
becomes law may depend on the society you live in.
i.e. religion, ethnicity, culture, tradition etc.
• Any kind of behaviour which is accepted as proper by
the society may be defined as social rules and any
behaviour regulated by law are legal rules. The
difference between these rules can be identified by
analyzing the consequences of violating these rules.
• For example –
• Breaking the law will result in punishment by courts
• Violating a social rule will result in only criticism
 Partington points out that one of the problems of the many functions of law is
that sometimes functions can be in conflict

• For example, the objective of preserving social order may

conflict with the protection of civil liberties or the right to
expression.
• This conflict occurs when citizens want to take to the
streets to demonstrate to express their dissatisfaction
about some issue and the police are concerned that such
a demonstration might lead to violent disorder. Which
objective should prevail? Freedom of expression or social
order?
• Similarly, when governments are facing terrorist threats
they must balance the desire to protect society through
enlarging the power of the police and courts against the
danger to civil liberties and infringement of human rights.
 I – MAIN ISSUES OF LAW

1. Origin of law
Definition:
Ø Law is the set of rules/codes of conduct
Ø Promulgated or recognized and enforced by the State
Ø Regulate all social relationships
2. Nature of law

Class Social

- Law is the tool of - Law is the born for the

dominant class to control need of managing the
and manage the society society
- Law is promulgated by - Law manifest the will and
the dominant class power of the dominant
class
I – MAIN ISSUES OF LAW

3. Roles of law
- Regulate: Maintenance of public order and safety.
Law is seen as the ‘glue’ that holds the fabric of
society together. The law protects us from complete
social disorder and anarchy (i.e. lawlessness).
• Protect individual rights and liberties: This is to
ensure that everybody is equal before the law and
that nobody is above the law. Therefore powerful
persons are all controlled by the laws in place and
this would mean that all individual rights are
protected equally.
• Educate
The organization and control of the political sphere

• The law sets out the boundaries of politics by

preserving the political structure and process under
which governance is possible. The best example of the
relationship between law and state is a written
constitution, although U.K. does not have a written
constitution.
The regulation of economic activity

• Facilitates and encourages national and international

trade in goods and services by setting out legal
frameworks by which parties can be bound.
The regulation of human relationships

• It serves to legitimize and control various aspects of

interpersonal relationships such as entering into
marriages, distribution of family wealth, regulation of
the parent-child relationship etc.
The regulation of international relations

• The regulation of international relations is also done

by a branch of law called public international law. The
creation of states, definition of state boundaries,
diplomacy, international humanitarian law etc.
 I – MAIN ISSUES OF LAW

4. Law attributes
I – MAIN ISSUES OF LAW

4. Law attributes
- Coercive – Tính cưỡng chế:
ØEnforced by State
Ø State may use force to coerce other subjects
to obey law
I – MAIN ISSUES OF LAW

4. Law attributes
- Forms/Law making process (Law on laws
2004-2008-2015)
ØLegal normative documents are
promulgated under strict procedure
ØClear and exact
 LAW

PUBLIC LAW PRIVATE LAW

Relationship between the State Rights and duties of individuals
and its citizens towards each other

Constitutional Administrative Criminal Contract Family Property

Case

https://vnexpress.net/phap-luat/ke-hiep-dam-tranh-quyen-nuoi-con-
voi-nan-nhan-3976874.html
VIETNAMESE LEGAL SYSTEM
I. Vietnamese legal philosophy and the factors
influencing it
• Legal system is different from country to country because of
differences in history, socio political and economic condition.
• Vietnam legal ideologies can be divided into four main periods,
such as:
-Feudal legal system
-French colonialist
-Soviet Union legal tradition
-Legal system in period of integration and globalization.

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I. Vietnamese legal philosophy and the factors
influencing it
• Under the leading of Communist Party, Vietnam is a socialist
country.
The legal system of the Socialist Republic of Vietnam has
significantly changed since introduction of Doi moi (renovation)
in 1986.

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I.1. Legal ideology of socialist model

- The current legal system of Vietnam is based on the

Soviet Union model.
- It is Civil law with modifications from Marxist-Leninist
ideology.
- Therefore, the 1980 constitution was based on the
Constitution of Soviet Union.

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 I.1. Legal ideology of socialist model
• The 1980 Constitution explicitly started: “The Socialist
Republic of Vietnam is a state of proletariat dictatorship”
- For the first time, the Constitution contained a provision on
the role of the Communist Party of Vietnam as the only
political party.
- The legal system and the role of law were used in the flexible
way in order to maintain the autonomous role of Communist
party.

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I.1. Legal ideology of socialist model
• The legal system of Vietnam was formed gradually
- under the leadership of Communist Party and
democratic centralism principle.
- under the principle of socialist legality and
democratic centralism.

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I.1. Legal ideology of socialist model

• These principles shape the nature of legislation

in Vietnam.
• Although National Assembly is vested
legislative power but executive organs have
played important role in legislation.

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I.1. Legal ideology of socialist model
• Under democratic central principle, there is no
separation of state power. All three state
branches have involved in legislation. Hence, the
concept of law refers to various types of
legislation issued by competent agencies in
written forms.

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I.1. Legal ideology of socialist model
• In addition, Communist Party has played
leading role in all aspects. Legal system is under
influences of Party’s policies.
• Therefore, law cannot conflict with Party’s
policies. It becomes one of a condition of legal
validity in Vietnam that is also different from
other countries.

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I.1. Legal ideology of socialist model
• It is essential to answer the question: what is
law in Vietnam? Law refers to legal
normative documents issued by competent
agencies as prescribed by laws.
• Legal system includes many types of legal
normative documents; therefore, it also
forms a hierarchical legal validity.

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I.2.Socio-Economic Conditions

•Socio-economic conditions have affected

significantly legal system. Legal system
must respond to the changes of socio-
economic conditions.

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I.2.Socio-Economic Conditions
• The remarkable changes in socio-economic in Vietnam
that has required significant changes of legal system as
follows:
• Introducing Doimoi (renovation) policy in 1986:
shifting from centrally planned economy to the market
economy with a socialist orientation. Legal system was
considered as instrument for defining the role of state
and the market.

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I.2. Socio-Economic Conditions

• Related to Doimoi policy, some significant changes in

legal system were summarized such as:
• 1) 1986 Land reform: Directly after introducing Doi Moi,
the government decided to give Vietnamese farmers
more rights on land and for the first time the right to
decide what to produce on their own. As a result,
agricultural output increased so much that within 2
years, Vietnam was transformed from a rice-importing to
an exporting nation

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I.2. Socio-Economic Conditions
•2) 1990/91 Recognition of private
ownership: For the first time, Vietnam has
officially recognized the lawful existence of
non-state economic sectors by issuing the
Company Law and the Private Enterprise
Law.

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I.2. Socio-Economic Conditions
• 3) 1995/96 Liberalization of foreign trade:
The re-establishment of formal diplomatic
relations with the USA constituted the
starting point for an opening of international
economic relations – allowing private
enterprises to engage in import/export
activities.

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 I.2. Socio-Economic Conditions
•4) 1999 Right of business freedom:
Clarification of entrepreneurs’ basic rights
to operate in any and all business arenas
not explicitly forbidden by law.

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1.2.Socio-Economic Conditions
• The 1992 Constitution replaced for the 1980
Constitution with the main focus on the open
market under socialist oriented economy. The rule
of law, clearly distribution of state functions
(legislative, executive and judicial functions) was
mentioned as the target of legal reform in
Vietnam.

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I.2. Socio-Economic Conditions
• Globalization:
Vietnam became a member of WTO in 2007:
In 1995, Vietnam aimed at bringing national
legal system up to level required by WTO
member. Therefore, all legal sectors have
been reformed basing on the international
trade rules. For example, Vietnam established
the Administrative Court in 1996 and adopted
Law on Administrative Complain and
Denunciation in 1998 in order to meet a
requirement of WTO.
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I.3. International cooperation in legal reform
• In the period of integration and globalization, Vietnam
has received support from advanced countries such as
US, Japan, Denmark, Canada, and Germany (etc) in
implementing legal reforms.

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I.3. International cooperation in legal reform
• “More recently, donors and entrepreneurs have
advocated reforms to support the marketization of the
economy, producing a diverse set of civil and common
law influences from various sources including Sweden,
United States of America, Canada, Japan and Australia to
name a few.”

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II. Brief history and development of
Vietnamese Law
• 2 September 1945: Independence
Five constitutions:
-The 1946 Constitution
-The 1959 Constitution
-The 1980 Constitution
-The 1992 Constitution
-The 2013 Constitution
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II. Brief history and development of Vietnamese Law.
Remarkable changes in economic and legal
foundation:

The most important: Economic Change.

- Since 1986, the Renovation Policy has secured

remarkable achievements in stimulating economic
growth.
- It has changed the Vietnamese economy from a
centrally planned economy into a multi-sectored
economy following what the Vietnam Government
calls a ‘socialist oriented market economy’’
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 II. Brief history and development of Vietnamese Law
• The greater diversity of economic sectors has
not only changed the state economy and the
nation’s social life but has also led to changes in
Vietnam’s legal system in order to meet the
requirements socio-economic renovation.
• The changes of economic policies have brought
about equally important changes in the legal
system.
• According to Vietnamese Legal scholars, ‘’Law’’
is “State law”
• Law is significantly influenced by economic and
social conditions.
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 II. Brief history and development of Vietnamese Law
• Law is significantly influenced by
economic and social conditions.

• Thus theoretically, the economic

foundations of a society and their
inter-relation, growth and change
are the direct reasons for the
appearance of laws because law
are created in a society when the
economic and social conditions
develop to a certain level. 51
II. Brief history and development of Vietnamese Law

• In Vietnam, normative legal documents (state law)

are fundamentally recognised an applied widely to
regulate all social relations.
• Since the 1990s, customary law and precedent
have attracted some attention from the
government in a few social fields such as marriage,
family and civil field.

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II. Brief history and development of Vietnamese Law

• Vietnam has undertaken several legal reforms,

including improving the quality and number of
normative legal document. Despite these positive
changes, there still exist a number of shortcomings
and weaknesses.

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II – SOURCE OF VIETNAMESE LAW

State law
Customary law
Precedents
State law

State law is a system of rules of conduct,

expressing the ruling class’s will and the
leadership of the Communist Party of
Vietnam.
Customary law
• Recently recorgnized as a source of law in Article 5 of Civil Code 2015:
“ Application of customary practice
1. Customary practice means a rule of behaviour with clear content to
determine the rights and obligations of an individual or a legal entity in a
specific civil relation, which was formed and repeated many times over a
long period of time, and has been recognized and widely applied in a region,
area, ethnicity, resident community, or in a civil sector.
2. Matters which are not addressed by law nor agreed by the parties may be
regulated by customary practices, but such customary practices must not be
inconsistent with the basic principles of civil law prescribed in article 3 of this
Code.
Article 3 Basic principles of civil law
• Every individual or legal entity is equal and may not be
discriminated against for any reason; and is
• equally protected by law for personal and property rights.
• Individuals and legal entities establish, perform and terminate
their civil rights and obligations on the basis of free and
voluntary commitments and agreement. Any commitment or
agreement which does not violate a prohibition by law or is not
contrary to social morals is valid for performance by the parties
and must be respected by other subjects.
• Individuals and legal entities must establish, perform and
terminate their civil rights and obligations with good will and
honesty.
• The establishment, performance and termination of civil rights
and obligations may not infringe upon national or ethnic
interest, public interest, or legitimate rights and interest of
other people.
• 5. Individuals and legal entities must bear self-responsibility for
non-performance or incorrect performance of civil obligations.
Precedents
• Recently recorgnized as a source of law.
• The Decision No.199/QĐ-CA dated 17/10/2018 of
the Supreme Court promulgate 11 precedents
(4 precedents in penal case, 7 in civil,
business, commercial and labour case)
• Pursuant to this Decision all courts (including
people’s court andmilitary courts) have the
responsibility to study andapply these
precedents in trials from 03/12/2018.
III. The State of Vietnam
• The State of Vietnam is a system of national organs.
• Principle: Democratic centralism
• Structure:
consists of
- The National Assembly
- The President
- The Government
- The People’s Court and People’s Procuracy
- The local government

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IV. The National Assembly
- Duration 5 years.
- The highest representative organ of the people
- The highest organ of State power
- The only body that has the supreme supervisory power over the
implantation of the Constitution and Laws

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 IV. The National Assembly
• Exercises supreme control over conformity to
constitution, the law and the resolution of National
Assembly
• Decides fundamental matters of nation, including
socio-economic development, financial and
monetary policies, issues of war and peace,
national defence, security, and external relations

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V.President
• Is the head of State
• Represents the State internally and externally.
• Is elected by National Assembly for a term of 5 years
• Has obligation and power to promulgate the Constitution, laws
and decrees.

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V. President
• In the executive field
- Proposes to the National Assembly to
elect, release from the duty, and
remove from office the Prime Minister.
- On the basis of resolutions of the
National Assembly or its Standing
committee, the President has the right
to appoint, release from duty, or dismiss
the Deputy Prime Ministers, ministers,
and other members of the Government.
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 V. President
• In the judicial field
- Proposes to the National Assembly to elect, release from duty, and
remove from office the President of the Supreme People’s Court
and the head of the Supreme People’s Prosecution.
- Appoints, release from duty, or dismiss Vice –President, Judges of
the Supreme people’s Court, the Deputy head and the member of
Supreme people’s Prosecution, without resolutions of the National
Assembly or its Standing Committee.
- Is entitled to attend sessions of the Standing Committee of the
National Assembly,
- Can attend meetings of the Government whenever he deems
necessary. 66
VI. Government
• Is the executive organ of the National Assembly.
• Is composed of
-The Prime Minister
-The Deputy Primer Ministers
- The Cabinet Ministers, and other members
• The Primer Minister is selected and released by the
National Assembly.

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VI. Government
• Executes three basic functions
- The making of Laws
- The administration of Laws
- The enforcement of Law
• The Government present draft laws, decree-laws,
and other projects to the National Assembly and
its Standing Committee.

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VI. Government
• The Government promulgates decrees, the Prime
Minister issues Decisions, and Minister issues circulars
to manage all fields of society.
• Carries out overall management of the work for the
fulfilment of the political, economic, cultural, social,
national-defence, security and external duties of the
State.
• Carries to the function of the enforcement of Laws

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VI. Government
• Ensures the implementation of the Constitution and the
law in State organs, economic bodies, social
organisations, units of the armed forces and among the
citizens.
• Organises and direct informational and educational work
among the people concerning the Constitution and the
Law.

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VII.People’s Council and People’s Committee
• People’s Council
- is the local organ of State Power.
- represents the will, aspirations, and authority of the
people.
- is elected by the local population and is accountable to
them and to the superior State organs.
- is the centre for guiding and operating decisions of higher
State organs
- Is the centre of co-ordinate activities of all local organs.
- Encourages local citizens to join in State organisation.
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VII. People’s Council and People’s Committee
• People’s Committee
- Is a local executive body
- Is elected by the People’s Council.
- Has responsibility to implement the
Constitution, the law, the formal written
orders of superior State organs, and the
Resolution of People’s Council.
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VII. People’s Court and People’s Procuracy
- The Supreme People’s Court
- The Local People’s Court
- The Military Courts
- Other courts regulate by the Law.
(Figure 3: Court Hierarchy)

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 VII. People’s Court and People’s Procuracy
• The Courts represent the State in
addressing legal violations, maintaining
justice, ensuring the State’s interest, and
ensuring organisations’ and individuals’
rights and legal interest.
• In the process of addressing cases,
several bodies participate, such as an
investigation body, the procuracy, and
the courts. Of those bodies, the courts
are the only ones with finally decide
cases.
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 VII. People’s Court and People’s Procuracy
• The Vietnamese courts have been
organised in a unified system.
• They are divided geographically into
allocated regional administrations. (such as
Provincial and District people’s courts)
( Graph: Court Hierarchy)
• The major function of courts is
adjudicative.
Courts, based on legal regulations
(normative legal documents) adjudicative
and give a decision for each particular case.
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VII. People’s Court and People’s Procuracy
• In cases when there is not any law to regulate the
particular activity or situation, courts will not be
able to adjudicate the case.
• The Criminal Code 1999 provides: “Only those
persons who have committed crimes defined by
the Criminal code shall bear the criminal liabilities
therefore”.

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VII. People’s Court and People’s Procuracy
• People’s Procuracy
- supervise the implementation of the law in the
state organs, organisations and citizens.
- Execute the right to initiate public prosecution,
and ensures a serous and uniform
implementation of the law

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 VIII. Vietnamese legal system

•Based fundamentally on the Soviet Union’s

system of law, in that law is State law.
• Law refers to a system of regulation created by
State power to regulate all social relations and
guaranteed by that power.

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 VIII. Legal structural system
• Is the whole of the legal norms
that are expressed in legal
documents and promulgated
by compulsory procedures and
jurisdiction.
• These legal forms have an
internal relation and form a
coherent whole, being
combined to constitute law
institutions and law branches
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