Meaning and basic concepts of law

● Definition of law
○ a set of rules that is recognized by the community or country as regulating actions to deal with crime, business agreements and social relationships.
It is the duty of the people in the community to obey the law and law also protects the rights of its people.
○ Main points
■ a set of rules
■ regulates interactions between people/ parties
■ are enforceable through sanctions
■ author of government
● Law, Morality and Ethics
○ Morality: sense of judgement between right and wrong to certain standards developed by society over time. It consists of values, principles, beliefs,
customs, and ways of living.
○ Ethics: gives us a sense of what is good, right, and meaningful in our lives. It consists of values, principles and purposes (professional ethics)
○ Morality/ ethics are not bindings, enforceable, and have sanctions. They are binding on the conscience of the members of the society.
Uniformity: the law is based on morality and ethics; it incorporates a significant proportion of morality and ethics.
Contradiction: certain wrongs in society contravene morality/ ethics but not the law (disrespect, failure to provide for parents...)
-> The existence of unjust laws (a law that is very removed from the primary meaning and is therefore deficient, deformed or defective in some respect; for example:
enforcing slavery or legalizing abortions) proves that morality/ ethics are not identical and do not coincide.
● Diversity of rules
○ Political parties
○ Social organizations
○ Businesses
○ Internal rules/ regulations of an organization (private and public)
○ Families
○ Groups
○ Social forums, network
● Roles of law
○ Maintain social order and stability -> Prevent chaos
○ Promote justice, fairness, human rights and freedoms
○ Resolve conflicts and disputes
○ Promote desirable social and economic behavior Ex: investment, open a company
○ Promote the development
○ Present the will of the people and minorities
○ Control and structure public power
○ Express society's moral values
LAW IS NOT ONLY TO PROVIDE SANCTIONS, MAINTAIN SOCIAL ORDER BUT ALSO TO PROMOTE THE DEVELOPMENT AND VALUES.
● Classification of law
○ Criminal Law & Civil Law: Luật Hình sự và Luật Dân sự
Criminal Law
■ Criminal Law is the body of law that defines criminal offenses, regulates the apprehension (arrest), charging, and trial of suspected persons, and
fixes penalties and modes of treatment applicable to convicted offenders.
■ Offenses against the state
■ The criminal offender is prosecuted by the Public Prosecutor (Viện Kiểm sát)
■ Punishments/ Sanctions: Fine, Death sentence, whipping, imprisonment
■ PP v defendant
Civil Law
■ Concerns with the rights and duties of individuals towards each other.
■ It is about conflict resolution, ensuring disputes between individuals do not escalate into violent confrontations.
■ It encourages cooperation between members of society, deterring exploitative behaviors, and unethical business practices. Without civil law, larger
companies could exploit smaller firms by not paying for goods or services as promised. At the same time, a tenant would have no recourse if their
former landlord simply refused to return a security deposit without an adequate explanation.
■ Remedy: Damages, injunction, rectification, specific performance.
■ Plaintiff (Nguyên đơn, người đi kiện)/ Claimants; Defendant
○ National Law & International Law: Luật Quốc gia và Luật Quốc tế
National Law/ Domestic Law
■ A set of laws applied within a nation-state
■ It varies in different countries
International Law
■ Body of law which is composed for its greater part of the principles and rules of conduct which states feel themselves bound to observe, and
consequently commonly do observe, in their relation with each other.
■ International law is a set of rules which are binding between countries and aims to ensure security and peace among various nations
○ Public Law & Private Law: Luật Công và Luật Tư
Public law:
■ Govern the rela between individuals and the state
■ Ex: citizen unhappy with a decision of an administrative authority can ask a court for judicial review.
Private law:
■ It concerns with matters that affect the rights and duties of individuals among individuals in a legal system. It is intended to give compensation to
person injured, to enable property to be recovered from wrongdoers, and to enforce obligations.
■ Ex: no smoking in the company, no creation of a hostile working environment. If no, penalties.
 ○ Substantive Law & Procedural Law: Luật Nội dung và Luật Thủ tục
Substantive law
■ It deals with rights, duties, liberties, power and all other matters that are not matters purely on practice and procedure.
■ It is the law that governs our daily practices and conducts.
Procedural Law
■ It relates to the enforcement of rights and duties.

Sources of Law
● Definition
○ Sources of law means the sources from where law originates (the origin of law). In other words, law is derived from sources.
○ Jurists have different views on the origin and sources of law, as they have regarding the definition of law
○ Some sources of law:
■ Sovereign as the source of law (the divine right of kings) - John Austin
■ Customs as the most important source of law - Savigny and Heny Maine
■ Religious scripts as sources of law - Theologians
■ Nature and human reasons: justice, equality and liberty
■ People’s sovereignty: the will of the people as the most important source of law (law made directly by the people or by their representatives –
the legislature/parliament).
■ from the wealthy class - Karl Marx
● Classification of legal sources
○ Primary and secondary sources of law
■ Primary: actual binding law in the forms of constitutions, statutes, administrative regulations, legal customs, judicial precedent, treaties, etc.
■ Secondary: optional sources of law, including juristic writing, foreign decisions, religion, morality, ethics. This source is applied if there is no
primary law or as additional ones.
○ Formal and material sources of la
■ Formal: source of law where the rule has legal power (constitutions, statutes, legal customs...even justice, equality, morality in natural law).
■ Material: a factor that helps the formation of the law (social relations, political power relations, socio-economic situation, tradition or
religious views, research, international development).
● 3 major sources of law: custom (tập quán) judicial precedent (án lệ) and legislation (lập pháp)
○ In contemporary legal systems, most are based on legislation. At the same time, customs play a significant role. In many legal systems, courts' decisions
are binding as law, called case law.
○ Constitution as the fundamental law of each country. It is a set of basic principles of rights and freedoms, as well as the powers of the different branches
of government (legislative, executive and judiciary).
● Custom as a source of law
○ Custom can simply be explained as those long established practices or unwritten rules which have acquired binding or obligatory character.
○ Customs, in order to be vaid, must be long established practices or unwritten rules.
○ In ancient societies, custom law was considered as one of the most important sources of law (the real source of law)
○ With the passage of time and advent of modern civilization, the importance of custom as a source of law diminished and other sources such as judicial
precedents and legislation become more important
● 2 views and the general development
○ Austin opposed custom as law because it did not originate form the will of the sovereign.
○ Savigny considered custom as the main source of law because the real source of law is the will of the people and not the will of the sovereign. The will of
the people has always been reflected in the custom and traditions of the society.
○ General recognition of custom as a source of law: the will of the people, not of the authority; stability; voluntarily comply, no need for sanction...)
○ In common law (as in UK): legal custom play a more important role in their legal system. Ex: A constitutional custom (The monarchy does not take
accountability; the monarch rule, but he/she holds little or no actual power or direct influence).
● Judicial precedent as a source of law
○ Judicial precedent refers to previously decided judgments of the superior courts, such as the High Courts and the Supreme Court, which judges are
bound to follow.
○ Judicial precedent is an important source of law, but it is neither as modern as legislation nor is it as old as custom.
○ It is an important feature of the English legal system as well as of other common law countries which follow the English legal system.
○ In most of the developed legal systems, the judges are competent to interpret the law to decide the case, and by this exercise, they lay down new
principles and rules which are general binding on lower courts within a legal system.
○ Importance of precedent as a source of law
■ Final settlement of an issue (outcome of justice)
■ Bring certainty (judicial procedures and principles)
■ Bring flexibility to law
■ Contribute to the development of law
■ Help in guiding lower courts
If precedent is law, does it mean that judges make law?
○ The courts do not make law, which are enacted by the legislature. The court they simply interpret the existing law (interpret what the law is). Judges are
not law-givers, but they discover law.
○ The courts interpret the law to solve the cases, and by this exercise, they lay down new principles and rules, therefore, it is argued that the courts
actually make law. While interpreting the law enacted by the legislative bodies, the courts contribute to the existing body of law.
• Judges do not make the law in the same manner in which, legislative bodies do. Judges work in a given legal material passed as law by the legislature.
While declaring the law, they interpret the law and play a creative role, By this creative role, they contribute significantly to the development of law (the
law is not amended by the courts, but developed by them.
● Legislation as a source of law
○ • In modern times, legislation is considered as the most important source of law.
 ○ • The term 'legislation' is derived from the Latin 2 words, “legis” and “latum”. The former means law and the latter means to make.
○ • Legislation consists in the declaration of legal rules by a competent authority (often by the legislature, who may delegate its power to the government).
○ • Legislation forms: Acts; Statutes; Law
● Administrative regulations as a source of law
○ Laws passed by the legislature are in general and are left to further clarification by the government
○ More importantly, the Government and other state agencies adopt rules and regulations to implement the laws
○ Administrative regulations must be not contrary to the Constitution and laws
● Sources of law in the USA
○ Constitution
○ Federal and State Statutes
○ Administrative Regulations
○ Case Law
○ Are treaties a source of law - Yes very important!!
■ The host country may be subject (or may be about to become subject) to laws made by a regional or world grouping by becoming a signatory
to a treaty.
■ Examples are the laws of the European of Union, trade treaties, rules of the WTO and bilateral treaties.
■ Treaties/international law are superior to law. If there is a conflict of international law and law, international law prevail. However,
International law is under the Constitution.
■ International law may have direct or indirect application:
✓Direct: they are direct sources of law as national law
✓Indirect: they must be imported into national law.
● Sources of law in Vietnam
○ Written legal normative documents are primary sources of law.
■ Constitution
■ Treaties that Vietnam is a member state (indirect application)
■ Laws enacted by the National Assembly
■ Other legal normative documents are adopted by a series of state agencies from the central to the local (the President; the Government; the
prime minister; the ministries; local authorities...) to implement and clarify the law.
○ Custom is limited in civil and trade cases while there is no written law - only a source of civil and commercial law (not be applied in public law).
○ Precedent is not fully recognized in Vietnam. A similar form of precedent is the summary of the typical precedents a guiding source of law for lower
courts.
■ Vietnamese legal system as a civil law tradition/system: uphold the priority of the written source of law
■ Law presenting the will of the people must be approved by the
■ National Assembly
■ ·Judiciary applies and declares the law, but not competent to interpret the law
■ Practices: Judges are not qualified and independent

Major legal systems in the world

● What makes a legal system?
○ Sources of law and their hierarchy
○ Law-making institutions (and their hierarchy)
○ Law-enforcing institutions and their powers (mostly courts)
○ Legal principles and concepts
○ The organization of the legal profession (the judiciary, the prosecutors and the lawyers).
● National Legal System
○ Each state has its own legal system
○ The structure and characteristics of these systems are highly variable
○ Many legal systems are organized on the basis of a written constitution (Ex: the US); a few have constitutional systems that do not result from a
single written text (Ex: the UK); some do not have an explicit constitutional framework (Ex: Afghanistan).
○ The relative position of statutory law (Statutory laws are written laws that have been approved by a legislature) , customs and case law varies
greatly from one country to another.
● World’s legal system
○ National legal systems are classified into several groups, based on the existence of common characteristics.
○ Basic criteria:
■ Sources of law
■ Legal principles and concepts
■ Tradition
○ Groups of classification:
■ Civil law
■ Common law
■ Religious law (Islamic Law)
■ Customary law
■ Mixed systems
● Basic elements for distinguishing legal systems
○ Source of law
■ Some countries will apply greater weight to certain sources of law than others, and that some will put more emphasis on judicial
decisions than others.
■ Civil law systems place more emphasis on statutory law
 ■ Common law systems give a broader role to case law, which is considered to be the sources of many of its rules and has developed
complex technical instruments to apply, interpret and modify such case law.
○ The legal concepts and terminology used by each system
● Not the matter of language but ideas
● Concepts such as equity, or consideration, have a technical sense under common law which has no exact equivalent in other legal
system.
● Many concepts used in civil law systems, but are not-existent or irrelevant in other systems.
○ The legal tradition
■ Historical, civil law systems have been based on Roman law and on the codes enacted in continental Europe.
■ Common law systems are based on English common law
Ex: Legal systems from the Muslim tradition are based on Islamic Law.
● Common Law system
○ Countries following common law system are typically former British colonies or protectorates: the US, India, Canada, Australia.
○ Features of a common law system:
■ Authority of the judgements delivered by higher courts, tribunals (toà án): the judicial precedents are binding - case law
■ Composition of judicial institutions
● Judges: are highly skilled persons who have studied in the discipline of law and possess practical experience in legal
administration (either as advocates or judges).
● Legal education: a bachelor degree requirement for law students
● Legal experience/ practices is compulsory to become a legal practitioner
■ Adversarial system of court proceedings, and the role of judge
● The disputing parties engages advocates who act like adversaries in the court of law and each advocate fights tooth and nail
against the other in order to win the case. (Hai phe đối kháng trước toà - luật sư vs công tố viên).
● The judge in the court acts like a neutral observer who listens to the advocates of each party.
○ The important of Acts, Statues and other Legislations passed by competent authorities.
■ Judges and advocates of Common Law system refer Acts as abstract and the rules in those Acts are general in nature.
■ The judicial decisions are made case-by-case; therefore, it would be very difficult to apply the general and abstract form of rule which
requires further interpretations and additive information.
● Civil Law system
France, Germany, Vietnam
○ Importance of Acts, Statues passed by Parliament or competent authorities
■ The Acts passed by Parliament or competent authorities receive highest importance in this legal system.
■ Judges regard the rules framed by the Parliament as supreme and do not try to change it by asserting their own authority as in the
Common Law.
■ Judges may give their own interpretations of the vague language used in the Acts, but it is not binding unless the parties to the dispute
agree on.
○ Composition of judiciary
■ Persons who have specialized knowledge of any particular field may be appointed as judges. Therefore, a judge can be an engineer or a
doctor or scientist. No requirement to study law as a separate discipline for a requisite number of year and practice in the court of law
thereafter.
■ Law degree is required but legal practices or experience is not compulsory.
■ Legal education: getting into law school from high schools; academy for lawyers and judges
○ Power of the judges to make law
■ The judicial judgements are not binding but they are given respect by the judges in other cases.
○ Inquisitorial (điều tra, thẩm vấn) approach of the court proceedings
■ The judges in the "Continental Legal System" play active roles in finding the truth
■ The judges do not simply act as a referee between the prosecutor and the defense side but they actively investigate the matter
themselves (with the cooperation of all disputing parties) with the purpose of establishing the truth by collection of evidence.
■ Collection of evidence is not the sole responsility of the advocates but also the judges.

Codification: the process of arranging laws or rules

into a systematic codes. This process does not
necessarily create new law, it merely arranges
existing law, usually by subject, into a code. For
example, in the US, acts of Congress are codified
chronologically in the order in which they became
law.

● Islamic Law
○ Based largely on the teachings of Koran
 ○ The unique ground for the validity of Islamic Law is that it is manifested will of Almighty. It does not depend on the authority of any earthly law
giver.
○ One of the consequences is that Islamic Law is immutable (constant), and for it is the law revealed by God.
○ Society must adapt itself to the law rather than generate laws of its own as a response to changing circumstances.
○ Since Islamic Law reflects the will of Allah rather than the will of a human lawmaker, it covers all areas of life and not simply those which are of
interest to the state or society.
● Socialist Law
○ Great influence of Civil law tradition
○ Legal concept: law as an instrument used by the wealthy class to dominate and exploit the weaker and laboring class.
○ Law and society under the will of the communist party.
○ Importance of public law to protect order and security.

● Vietnamese legal system

○ History: Highly influenced by Chinese Confucian Law (1000 years of domination); French Law (civil law) in the colonization period and the socialist
law (since 1945 in particular from 1950s).
○ A socialist legal system based on the civil law, with some major modifications from Marxist-Leninist ideology; and is in the transition with many
legal adaptations to international legal principles and standards (mixed system).
Main features:
● Legislation is the most important source of law
● Courts must make decisions based on legislation
● Policies are set out by the Communist Party, the only political party in Vietnam, which can lead to changes in legislation in the future.

The Rule of Law - Pháp quyền, nhà nước pháp quyền

● Concept
○ The term derived from the French term, meaning government based on the principles of law.
○ It was expounded for the first time by Sri Edward Coke and developed by Prof. A.V. Dicey in his book "The Law of the Constituition" published in
1885.
○ Rule of Law is defined as the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law, secures a
nonarbitrary form of government, and more generally prevents the arbitrary use of power.
○ According to Edward Coke, "Rule of Law" means:
■ Absence of arbitrary power (thế lực chuyên quyền) on the part of Government
■ No man is punishable or can be made to suffer in body or good except for a distinct breach of law established in the ordinary legal
manner before the ordinary courts of the land.
○ According to Prof. A.V. Dicey "The Rule of Law" means the absolute supremacy or predominance of the regular law as opposed to the influence of
arbitrary power and excludes the existence of artitrariness or even of wide discretionary authority on the part of the government". (the Law of the
Constitution).
● Principles
○ Supremacy of law: no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the
ordinary legal manner before the ordinary courts of the land. Law is supreme, above everything and everyone.
○ Equality before law: No man is above law. No individual or group should be discriminated against by the law (Different beliefs of a person should
not be made fun of).
○ Predominance of legal spirit: the general principles of the constitution are the result of judicial decisions determining rights of private persons in
particular cases brought before the court.
The Rule of Law, in its most basic form, is the principle that no one is above the law. Law is supreme, above everything and everyone.
The rule follows logically from the idea that truth, and therefore law, is based on upon fundamental principles, which can be discovered, but which cannot be created
through an act of will.
● The law rules and governs the people, not the individual or group of individuals
● Every person, whatever rank or condition, is subject to the ordinary law of the nation (Mọi người đều phải tuân theo luật pháp của một quốc gia).
Application of the Rule of Law: the principle that government must be conducted within the framework of recognized rules which restrict discretionary
powers (quyền tự quyết).
-> The principle is intended to be a safeguard against artbitrary governance, whether by a totalitarian leader or by mod rule.
● The Rule of Law is hostile both to dictatorship and to anarchy.
● Discretionary power should be exercised within reasonable limits set by law.
● Influence of Rule of Law on our Daily Lives
○ Key to the rule of law is the commitment to apply the law to everyone fairly.
○ Other attributes include applying the law to government, not just individuals and entities
○ Making the law clear and legal proceedings transparent; and balancing individual rights against the safety of others.
○ "Your right to swing your fist stops just short of my nose", said Judge Benton. "And that's what the rule of law meant to do, is to find that
boundary."
Pre-conditions for the Rule of Law
● Certain minimum standards for law conforming to emerging social standards.
● Absence of retroactive penal law (Không áp dụng hồi tố trong luật hình sự - hành vi xảy ra ở thời điểm nào thì áp dụng luật tại thời điểm đó).
● Fair and Just Procedure
● Speedy Trial in Criminal Cases
● Equal acces to the poor and minorities
● Sound legal profession
● Independent and impảtial judiciary
● Authority of the Courts to test authorities's actions, by the standards of legality.
 The world justice project rule of law index
● It is the world's leading souce of original, independent data on the rule of law.
● Covered 128 countries and jurisdictions, the Index relies on national surveys of more than 130,000 households and 4,000 legal practioners and
experts to measure how the rule of law is experienced and perceived worldwide.
Eight Factors for the rule of law index
● Constraints on Government Powers
● Absence of Corruption
● Open Government
● Fundamental Rights
● Order and Security
● Regulatory Enforcement
● Civil Justice
● Criminal Justice
Vietnam Rankings
● Vietnam's overall rule of law score increased by < 1% in this year's index.
● At 85th place out of 128 countries and jurisdictions worldwide, fell two positions in global rank.
● Placed at 11/15 in East Asia and Pacific Region; 11/3- among lower middle income countries.
● Four Universal Principles of the Rule of Law
○ Accountability: the government as well as private sectors are accountable under the law.
○ Just Law: The laws are clear, publicized and stable; are applied evenly and protect fundamental rights; including the security of persons and
contract, property and human rights.
○ Open Government: The processes by which the laws are enacted, administered and enforced are accessible, fair and efficient.
○ Accessible and Impartial Dispute Resolution: Justice is delivered timely by competent, ethical and independent representatives and the neutrals
who are accessible, have adequate resources, and reflect the makeup of the communities they serve.
Major Forms of Government in the World
● Definitions of government
○ An institution or a system that made of a group of people governing an organized community, generally a state.
○ Once appointed or formed, the government is responsible for:
■ the social welfare
■ law and order
■ defence
■ financial affairs of the state
○ Government normally consists of legislature (lập pháp), executive (hành pháp) and judiciary (tư pháp).
A form of government (Hình thức nhà nước)
○ Refers to the set of political institutions by
which a government of a state is organized
○ Criteria to distinguish different forms of
government:
■ Power source: answer the question
to whom/ who rules the
government
Power structure: answer the question how the power is
organized?
Absolute Monarchy: Quân chủ tuyệt đối
Constitutional Monarchy: Quân chủ lập hiến
Restricted Monarchy: Quân chủ hạn chế
Parliamentary Republic: Cộng hoà Nghị viện
Presidential Republic: Cộng hoà Tổng thống
Semi-presidential Republic: Cộng hoà hỗn hợp
Socialist: Cộng hoà XHCN

● Vertical decentralization: central and local

Forms of government:
● Federal government >< unitary
government
● Federalism: federal government and
state governments
● Local government

● Basic form of government

Democracy - the people have full power to vote for the leaders of the country.
○ A form of government in which leaders are elected by the people, therefore the power is with the people.
○ The power is penetrated to the people's hands and exercised by them directly or indirectly through a system of representation (a representative
government or a republic).
○ Democratic governments are based on free elections where all citizens have a vote.
○ Different sub-forms of democracy:
 ■ Direct or indirect democracy
■ Participatory democracy
■ Deliberative democracy
○ Most of contemporary governments are democratic to some extent.
Republic (Cộng hoà): people delegates their power to the representatives
● A form of government in which "power is held by the people and their elected representatives".
● In all republics, the head of government is an elected or chosen president for a specific length of time (term of office).
● A republic is not identical to democracy.
○ In some undemocratic republics, the leaders are chosen by a small number of people and may stay in office for a long time, sometimes
without even being elected or re-elected.
○ In some cases, there may be elections, but these maybe conducted in corrupt ways, or elections are not given a free choice of who vote
for.
● Contemporary democratic republican forms of government: The presidential; parliamentary and semi-presidential and socialist republics
Presidential Republic
● Refers to the form in which the head of State (President) leads an executive branch that is separate from the legislative branch in the system that
uses separation of power.
● First Presidential Republic in the US based on separation of powers - checks and balances (The Constitution of 1787).
● Example: Latin America; Eastern Europe; some Asian countries such as Indonesia, South Korea; Philippines
Parliament Republic
● Refers to the form in which the executive ( a prime minister and its government) derives their powers from the parliament, so they are elected by
the parliament and accountable before the parliament.
● Rooted in the parliamentary system in the UK.
● Example: Germany, Italy
Semi-presidential Republic
● Also called mixed system or dual executive system
● Refers to the form in which a president exists alongside a prime minister and a cabinet, with the latter two responding to the legislature of the
state.
● First established in France (1958)
● Examples: Belurus, Croatia, Romania, Russian and Ukraine.
Socialist Republic
● No separation of power, but democratic centralization
● All power are vested in the people
● The National Assembly is the highest organ of the state; others powers, including the executive and judiciary powers derive their powers from NA.
● The role of the sole leading party - the communist party
Monarchy: passed through inheritance
● Refers to the form in which government is led by an individual who holds the position for life, having inherited the position, and who passes it on to a relative,
usually a son or a daughter.
● It is the longest lasting form of government; popular in the states of pre-capitalism.
● Forms of monarchy: Absolute vs Constitutional Monarchy

Constitutional Monarchy
● The power is restricted to those granted in the constitution.
● Most constitutional monarchies uses a parliamentary system in which the king or queen may have strictly ceremonial duties. They often have a elected prime
minister who is the head of the government.
● Constitutional monarchies are democratic governments
● Example: the UK, Australia, Japan, Thailand, Malaysia
Dictatorship: passed through forces
● Refers to the form in which a single leader or party exercises absolute control over the government and society.
● The leader or party is not elected and may use force to keep the control.
In most cases, its absolute power is exercised in a cruel way
● Other names: autocracy, military junta, authoritarianism, totalitarianism or fascism.
● Example: North Korea, Libya, Myanmar; Sudan; Afghanistan.

Transitional
● Refers to a form that is in the process of changing from on form to another
● Countries with transitional governments are often not stable
● Example: Communism - Capitalism (East Europe); Communism - Socialism (Vietnam, China); Iraq, Afghanistan.

Forms of Vietnamese Government

● It is the form of a socialist government with modifications
● Traditional features:
○ Sole leading party: communist party -> High level of centralization
○ All powers are vested in the people - democracy: direct and indirect; participatory and deliberative democracy
○ The National Assembly is the highest organ of the state; others powers, including the executive and judiciary powers derive their powers from the
NA.
● Modifications:
○ The rule of law state
○ Distribution, co-ordination and control among state agencies in exercising legislative, executive and judiciary powers.
○ Responsibility; openness and transparency.
Consitutional Law
I. Definition of a constitution
A constitution is a set of rules that:
● Seek to establish the duties, powers and functions of the various institutions of government
● Regulate the relationship between and among the institutions
● Define the relationship between the state and the individual; Ex: define the extend of civil liberty (basic rights and freedom).

II. Nature and purposes of a Constitution

1. It serves a supreme of fundamental law
2. It is a charter (hiến chương, văn bản chính thức) that created a government
3. It binds all individual citizens and parts of the government
4. It is the ultimate law; the law that other laws must abide by
5. It is the test of legality by government official

6. Establish the basic framework and underlying principles of the government

● Prescribe the permanent framework of the system of government; and assigns to the different department or branches; their respective powers and duties
● To establish certain basic principles by which the government is founded.
7. Designed to preserve and protect the rights of the citizens
● It declares and defines the rights and duties of citizens
● Most constitutions include a declaration of fundamental rights applicable to citizens.
● At a minimum, these will include the basic civil rights and liberties that are necessary for an open and democratic society (Ex: the freedoms of thought, speech,
association and assembly; due process of law and freedom from arbitrary arrest or unlawful punishment).

Constitutional supremacy and constitutional review

Constitutional supremacy
● Constitution is a supreme law to which all others law and public actions must conform and in accordance with
● All constitutional violations shall be invalid

Constitutional review
● To assure the supremacy of a constitution
● The power (i.e judicial review) of constitutional review is exercised by ordinary courts - a special constitutional court, or a constitutional council.
Ordinary court: a state or governmental body consisting of one or more judges who deal with a major part of judicial proceedings.
A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether laws that are challenged are in fact
unconstitutional, i.e. whether they conflict with constitutionally established rules, rights, and freedoms, among other things.

III. Separation of powers

The American Constitution
● Adopted in 1787 (first and oldest)
● Has three parts:
○ Preamble: Introduction, established the purpose of government
○ Articles: 7 articles which provides guidelines for how the government will operate
○ Amendments (a minor change or addition designed to improve a text, piece of legislation): 27 amendments to the original documents

Power works best when it does not rest in a single authority but it is
distributed among different branches of legislative, executive, judiciary
powers.
Three branches of government:
● The legislative: make the laws or adopt new law or amend (revise
for the better) the law
● The executive: enforces the laws or makes sure the laws are
carried out – govern the country
● The judicial: protects the laws or apply the law, and settle disputes
and punish law-breakers according to the law. – enforce rule law,
assure freedom, protect human rights

● Separation of powers also means check and control among the

power
Example: In the parliamentary system
-A Parliament may adopt a no-confidence vote in a
government
-The government, or cabinet, in turn, ordinarily may ask
the State president to dissolve the parliament
-The courts may review the constitutionality of law and
executive regulations.
 6 principles of the US Constitution
● Popular Sovereignty (supreme power or
authority based on consent of the people:
Popular = People; Sovereignty = Power
● Limited Government: Governmental power is
limited to what it is indicated in the
constitution.
● Separation of Powers: three branches
● Checks and Balances: each branch of
government has some power over the other
two branches. Purpose: to prevent any one
branch from having too much power.

● Judicial Review: courts decide if the

government acts violate the constitution
● Federalism: Power is divided between national,
state and local governments. Each level has its
own responsibilities.

I. Vietnamese Constitution
● History: Constitution of 1946; Constitution of 1959, 1980, 1992 and 2013.
● The current Constitution applied is 2013.
Structure: A Preamble and 11 Chapters
● The Political Regime
● Human Rights, Fundamental Rights and Obligations of Citizens
● Economy, Social Affairs, Culture, Education, Science, Technology and Environment
● Defense of Fatherland
● The National Assembly
● The President
● The Government
● The People's Courts and the People's Procuracies
● Local Authorities
● The National Election Council, State Audit Office
● Effectiveness of the Constitution and the Amendment to the Constitution

Basic Principles of the State

● Form of government: Constitution defines Vietnam as a socialist rule of law state of the people, by the people and for the people.
● Vietnam is a unitary state ruled by one party system with a co-ordination among state bodies in exercising legislative, executive and judicial powers.

Basic Institutions of the political system

● The Communist Party - the leading role
● The government institutions - the central role
● The Vietnam Fatherland Front and its member social-political organization - basic foundation

The government institutions

The National Assembly
● Highest representative body of the people and highest body of state power of the socialist republic of Vietnam
● The NA exercises constitutional and legislative powers, decides significant national affairs and exercises supreme control over all activities of the state.

The State President

● The State President is the Head of State, represents the Socialist Republic of Vietnam both in domestic and foreign affairs.

The Government
● Highest administrative body of the Socialist Republic of Vietnam, exercises the executive power and is the executive body of the NA.
● The government is accountable to the NA and shall report to the NA, its standing committee and the Sate President.

The People Courts and the People's Procuracies

● The judicial bodies of the Socialist Republic of Vietnam, exercising the judicial power.
● Judges and Assessors are independent and shall only obey the law.
Interference with the trials of the judges and assessors by body, organizations and individuals is strictly prohibited.
● The People's Procuracies shall exercise the power to prosecution and control judicial activities.

The Vietnam Fatherland Front

● One of the basic state institutions
● It is a political allied organization and voluntary union
 ● It is composed of various different political and social organizations and representatives of different ethnic and religious groups
● The aims of the organization is to:
○ Establish political base of the people's administration
○ Foster the tradition of national unity
○ Strengthen political and moral cohesion among people.

The social-political organization

● Ex: The Vietnam Trade Union, the Vietnam Peasant Society, HCM Communist Youth Union, Vietnam Veteran Society, etc.
● They were established on a voluntary basis and to represent/ protect the legal and legitimate rights and interests of their members
● They cooperate with other members of the Fatherland Front and unify the activities of the Fatherland Front.
- Which from of government is better?
Democracy (?) In the words of Abraham Lincoln, democracy is the government of the people, by the people, and for the people
• The rulers of the nation are elected by the public.
• It is a government run by and for the people
• Democracy improves the quality of decision-making.
• Democracy provides a method to deal with differences and conflicts.
• Democracy enhances the dignity of citizens.
• Democracy is better than other forms of government because it allows us to correct our own mistakes.
- Presumption of innocence: Prosection must prove the defendant is guilty beyond reasonable doubt
- Public orders: the situation that exists when people obey the laws, rules or authority of the State (= internal security, public safety, and human security)
- Legal legitimacy: the belief that the law and agents of the law are rightful holders of authority; that they have the right to dictate appropriate behaviour and
are entitled to be obeyed
- Access to justice is an essential ingredient of the rule of law. People need to be able to access the courts and legal processes or the law cannot enforce
people's rights and responsibilities.

Civil Law
I. Concept of civil law
- Personal (quan hệ nhân thân), property (quan hệ tài sản) relations of natural and jurridical person in relations established on the basis of equality, freedom of
will, independence of property when participating in those relas.
- General provisions: subjects, representatives, properties, civil transactions,…
- Specified provisions: property rights, contracts, non-contractual compensation for damage
- Scope: expanding từ Ordinance on Civil Contracts (consumption), Civil Code 1995 (civil relations); Civil Code 2005 (labor, marriage & family, commercial
business), civil code 2015 (private relations on the basis of equality)
- Civil Law trong mqh với other laws: is the general law, applied khi other laws dont have regulated regulations
II. Civil Relations
- Subject matter of Civil relations
o Property relations: objects, money, valuable papers, property rights on equal basis
▪ E.g: transfer the use of vehicle từ chủ này sang chủ khác
o Personal relations: personal factors
- Personal rights - civil rights inherent to each natural person, cannot be transferred to other person, unless otherwise provided for by other laws
o Have family and given names; Change family names; Change given names; Identify and re-identify ethnicity; Declarion of birth and death,
Nationality
▪ Nếu trên 18 tuổi, muốn đổi tên thì có full legal capacity, legally k cần ask for consent từ parents but morally yes. Also thườngphải verify
info từ gia đình -> involve parents
o Right of an individual w respect to his/ her image; right to life, to safety of life, health and body; protection of honor, dignity, prestige; to donate or
receive human tissues and body organs and donate corpses
o Right to re-determine gender identity (2015) – tho chưa accept marriage; to private life, personal secrets and family secrets
- Does the law reflect the country’s culture?
- Property rights – rights which are able to be valued in money, including property rights to subjects of intellectual property rights, right to use land and other
property rights
o Ownership: comprise rights of an owner to possess, use and dispose of the property
▪ Right to possess
▪ Right to use
▪ Right of disposal – come with conditions, phải có đơn vị expert để dispose + approval của đơn vị in charge. Ví dụ sửa nhà thì p xin toà
nhà + thuê ng làm
o Other property-related rights: rights of entities directly hold or control the property belonging to ownership rights of another entity
▪ Right to adjacent immovable property
▪ Usufruct right (quyền hoa lợi, dụng ích)
▪ Surface rights
- Basic principles
o Equality
o Freedom and voluntaries of commitment and agreement
o Goodwill and honesty
o Do not fringe upon the legitimate rights and interests of others
o Self-responsibility for non-performance or incorrect performance of civil obligaitons
- Natural and juridical persons – cá nhân và pháp nhân
Natural persons
o Legal personality of natural persons
▪ Is his/ her capability to have civil rights and civil obligations
 ▪ All individuals shall have same legal personality
▪ Commences at birth and terminates at death
o Contents of legal personaility of natural person
▪ Personal rights not associated with property (quyền tên tuổi, hiến) và có associated with property (thừa kế, tài sản hôn nhân)
▪ Ownership rights, inheritance, other rights w respect to property
▪ Rights to participate in civil relations and assume obligations arised từ those relas
o Legal capacity of natural persons – his/ her capability to establish and exercise civil rights and perform civil obligations
▪ Adults
▪ Minors
▪ Lack of legal capacity
▪ Persons w limited coginition or behavior control
▪ Persons w limited legal capacity
Juridical persons
o (1) – an organization that
▪ Legally established as prescribed in this Code and relevant laws;
▪ Has an organizational structure presscribed in Article 83 of this Code;
▪ Has property indepedent from other natural and juridical persons and bears liablity by recourse to its property;
▪ Participated indepedently in legal relas in its own name
o (2) – every natural or juridical perons has the right to establish a juridicial person, otherwise provided for by law
Commercial juridical persons
- A juridical persons whose primary purpose is seeking profits and its profits shall be distributed to its members
- Include enterprises and other business entities
- The establishment, operation and termination of commercial juridical person shall comply with regulations of this Code, Law on enterprises and other relevant
laws
Non-commercial juridical persons
- A juridical person whose primary purpose is not seeking profits and its possible profits may not distributed to its members
- Include regulatory agencies, people’s armed units, political organizations, social political organizations, social funds, charitable funds, social enterprises,…
- Establishment, operation, termination of non-commercial juridical persons shall comply with regulations of this Code, laws on org structure of the state &
other relevant

- Circumstances which modify or limit capacity to act under the 2015 Civil Code:
- Cognitive issues, mental illnesses
- Cognition, behavior controls issues
- Drug abuse, addiction
➔ Medical examination to verify
At the request of a person with related rights or interests or of a relevant agency or organization, a court may issue a decision declaring a person whose addiction to
drugs or other stimulants has ruined the property of his or her family as having restricted capacity for civil acts. The court determines the legal representative of a person
with restricted capacity for civil acts and the scope of such representation.

A. Birth --> (2)....determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the
conditions specified in the following article.

B. Profits --> Commercial juridical person means a juridical person whose primary purpose is seeking (1) ... and its (1)... shall be distributed to its members.

C. Vietnamese --> The legal capacity of (4)... is his/her capability to establish and exercise civil rights and perform civil obligations through his/her acts.

D. Death --> Civil personality is extinguished by (3)....The effect of (3).... upon the rights and obligations of the deceased is determined by law, by contract and by will.

E. A natural person --> Each juridical person established in accordance with (5)... law shall be a (5)... juridical person.

- What types of disputes in civil law? – Sự tranh chấp luật pháp

o Between two or more individuals
o Between individuals and government
o Between individuals against a company or organization

CRIMINAL LAW
The concepts of criminal law
Criminal law is a legal branch in the legal system of the Socialist Republic of Vietnam, including a system of legal regulations promulgated by the State that identifies acts
dangerous to society that are considered crimes, and specifies sentences that may apply to such crimes, as well as other issues related to crime and criminal liability.

The Criminal Code is meant to:

• protect Vietnam's sovereignty (chủ quyền) and security;
• protect the socialism regime (chế độ chủ nghĩa xã hội), human rights, citizenship right
• protect the equality among ethnic groups;
• protect interests of the State; organize and protect the law;
• punish crimes;
• raise people's awareness of compliance (sự tuân thủ) with the law;
• prevent and fight crimes.
• This Code provides for crimes and punishments.

Basic rules
 • Every crime must be discovered promptly and dealt with quickly and fairly in compliance
• All criminals/ corporate legal entities that commit criminal offenses (vi phạm) are equal before the law
• Strictly punished criminal offenses committed by employment of deceitful (lừa gạt) methods; in an organized manner, in a professional manner, or with intent
to inflict extremely serious consequences
• Leniency (khoan nhượng) shall be shown

Crimes and punishment

• A crime means:
1. an act that is dangerous for society and defined in Criminal Code,
2. is committed by a person who has criminal capacity or corporate legal entity,
3. whether deliberately or involuntarily,
4. infringes (xâm phạm) the sovereignty and territorial integrity of the nation, infringes the political regime, economic regime, culture, national defense and
security, social order and safety, the lawful rights and interests of organizations, human rights, the lawful rights and interests of citizens, other aspects of
socialist law.
• A sentence means:
1. the most severe coercive (ép buộc) measure of the State specified in this Code,
2. taken by the Court against a person or corporate legal entity that commits a crime
3. in order to deprive(tước đoạt) of or limit their rights and/or interests.
Sentences are meant: not only for punishing people and corporate legal entities that commit criminal offenses, but also raising awareness of compliance with
law, preventing them from committing other crimes, educating other people and corporate legal entities in compliance with the law, prevention of and fight
against crimes.

Sentences against criminals

• Primary sentences
a) Warning;
b) Fine;
c) Community sentence;
d) Expulsion (trục xuất)
dd) Determinate
imprisonment;
e) Life imprisonment;
g) Death sentence.
• Additional sentences • The offender shall incur only one primary sentence
a) Prohibition from holding certain positions or doing certain for a crime committed and possibly one or more
works; additional sentences
b) Prohibition from residence;
c) Mandatory supervision;
d) Deprivation of certain citizenship rights;
dd) Confiscation of property;
e) Fine f no administrative penalties are imposed;
g) Expulsion if no administrative penalties are imposed.

PUBLIC INTERNATIONAL LAW

International Law is defined as a body of principles & rules commonly observed by States in their mutual relationship with each other. It includes the law relating to
States & International organizations and also International Organizations. It also includes the rules of law relating to international institutions and individuals, and
non-State entities and individuals.

Public International Law is composed of the laws, rules, and principles of general application that deal with the conduct of nation-states and international organizations
among themselves as well as the relationships between nation-states and international organizations with persons, whether natural or juridical.

Functions of Public International Law

1. To establish peace and order in the community of nations and to prevent the employment of force, including war, in all international relations;
2. To promote world friendship by leveling the barriers, as of color or creed;
3. Encourage, ensure greater international cooperation in the solution of certain common problems of a political, economic, cultural, humanitarian character;
4. To provide for the orderly management of the relations of states on the basis of the substantive rules they have agreed to observe as members of the
international community.

The International Community

International Community — the body of juridical entities which are governed by the law of nations.
Composition of International community: State; United Nations; International administrative bodies; Colonies and dependencies; Belligerent communities; Individual 4

State - A group of people living together in a definite territory under an independent government organized for political ends and capable of entering into international
relations.
Elements of A State Classification of States
1. People: the inhabitants of the State 1. Independent states — having full international personality
2. Territory: the fixed portion of the surface of the earth inhabited by the 2. Dependent states— exemplified by the suzerainty and the
people of the State protectorate and are so called because they do not have full control of
3. Government their external relations
4. Sovereignty: the power to direct its own external affairs without 3. Neutralized states
5. interference or dictation from other states

The United Nations

Although the United Nations is not a state or a super-state but a mere organization of states, it is regarded as an international person for certain purposes
International Administrative Bodies
Certain administrative bodies created by agreement among states may be vested with international personality
(e.g. WTO, International Labor Organization, World Health Organization).
Colonies and Dependencies
From the viewpoint of international law, a colony or a dependency is part and parcel of the parent state, through which all its external relations are transacted with other
states.
Belligerent Communities
When a portion of the population rises up in arms against the legitimate government of the state, and such conflict widens and aggravates, it may become necessary to
accord the rebels recognition of belligerency.

Sources of Public International Law

1. International conventions
 2. International custom
3. The general principles of law recognized by civilized nations (e.g. prescription, pacta sunt servanda, and estoppel).
Non-discrimination rules of the WTO
• Non-discrimination rules in WTO Agreement
• Articles 1:1, 111:2 and 111:4 of GATT 1994
• Scope of these rules
• Governmental regulatory autonomy
• Fundamental nature of these rules
o Theory of comparative advantage
o Practical relevance
• Example of national treatment: The law itself differentiates

De jure Discrimination De facto Discrimination

• Practical Relevance
• Indistinctly applicable" = formally totally non-discriminatory
measures
• 2 Forms of de facto Discrimination
• Substantive discrimination due to disparate impact
• Indirect discrimination due to unequal distribution
• Illustration

De facto Discrimination I

The arrow points in the direction of the resulting advantage. Due to the discrimination, these • Origin-neutral differentiation: Assume likeness / direct
competitiveness.
may be imports.

PRIVATE INTERNATIONAL LAW

Introduction to Private International law
• Private International law is a distinct part of law which has developed as a system very recently.
• Judicial decisions have contributed largely in shaping this branch of law but it is also influenced by continental thoughts.
• It is necessary to focus on its historical development before any serious discussion on Private International Law issues.

Definition - Private International law

• Is a set of rules of procedural law that regulates the relationships between physical and judicial persons of different nationalities
• Determines which legal system and the law of which jurisdiction will apply to a legal dispute among private individuals involving a foreign element is also called
as conflict of laws
• Governs the choice of law to apply when there are conflicts in the domestic law of different nations related to private transactions between those nations.
• Private international law deals with a variety of topics such as contracts, marriage and divorce, jurisdiction, recognition of judgments, child adoption and
abduction, and the like.

Nature of Private International Law

• Its subject matter always includes a foreign element;
• One of its prime nature is the pursuit and application of the appropriate legal system
• Private international law explores cross-border legal relationships. The discipline investigates core legal issues pertaining to international communication, such
as the criteria for resolving conflicts of law arising under contracts.
• Private international law plays a vital role in developing the existing legal systems of the different states. It helps to understand various legal orders all over the
world.
• Private International law helps to develop international legislation and international law association.

Theories of Private International Law

• Statutory Theory: Personal law may be applied if it is not opposed to public policy or public order.
• International Theory: There are rules of conflict of laws which are universal and common to various legal systems of the world.
• The Territorial or Acquired Rights Theory: Courts of sovereign state do not apply foreign law but merely recognize the consequences of the operation of a
foreign law.
• Local Law Theory: The gist of this theory is that the court recognizes and enforces a local right that is created by its own law. But as the dispute in question has
a foreign element the court would necessarily apply the rule of the forum that would be applied in the case of a purely domestic dispute. But for reasons of
social expediency and practical convenience it takes into account the laws of a foreign country in which the decisive facts have occurred.
 PUBLIC
Concept Public international law is also known as international law.
Accordingly, public international law is understood as a legal
system that includes the totality of international legal principles
and norms, which are agreed upon by states and other subjects
of international law on a voluntary basis. , equality, through
struggle and negotiation to regulate the multifaceted relationship
between the subjects of international law and each other, and in
case of necessity, to ensure implementation by individual or
collective coercive measures. by the subjects of international law
themselves.
Object The new relationship between the subjects is political and legal.
Adjustment Do not use indirect adjustment method
method
Subject The main subject is countries. However, it will include national
actors, international intergovernmental organizations, and
peoples fighting for the right to self-determination. Subjects
participating in international legal relations have an equal
position with each other.
Source The main source of law is international. Specifically include the
following sources:
International treaties; International custom;
Sanctions Using the sanctions of the field of civil law. State coercive
apparatus
Nature Property, bearing state power
PRIVATE
International justice is an independent legal science and an independent branch of
law that includes legal norms governing civil, commercial, marriage and family, labor
and legal relations. civil proceedings with foreign elements
Legal relations between citizens and legal entities arising in international life belong to
the main object of international judicial law. Specifically:
• Subject is a foreigner, foreign legal entity, overseas Vietnamese
• The object of that relationship is in a foreign country (inheritance abroad)
The legal fact that is the basis for establishing, changing, or terminating the
relationship occurs in a foreign country (two Vietnamese citizens getting married in
Canada ...)
There are two adjustment methods:
The conflict method: Civil relations involving a foreign element often involve one or
more other countries, that is, with different legal systems. Thus, this is a method of
applying conflicting legal norms to regulate international judicial relations.
Substantive method: This is the method of applying substantive legal norms. Unlike
conflicting norms, substantive norms directly regulate and stipulate the rights and
obligations of the parties to a specific legal relationship. Substantive legal norms
include: uniform substantive norms (recognized in international treaties) and
substantively common norms (recorded in national legal documents).
A fundamental component of international judicial relations is an entity that is or will
be directly involved in international judicial relations independently, having certain
legal rights and obligations protected under the provisions of law. provisions of
International Justice and has the ability to independently take legal responsibility
according to the provisions of law for the acts caused by that subject.
Subjects of international law include natural persons, juridical persons and the state.
Natural and legal persons are basic subjects, the state is a special subject.
Sources of International Justice include:
The laws of each country; International treaties; Practice of courts and arbitration
(case precedent); Custom
Sanctions such as encirclement, embargo, retaliation... self-coercive subjects.
Political factors