STATE & LAW

Origin of state
Nonmaxist theory
+ Social Contract theory
+ Theology
+ Theory of violence
Maxist theory
+ Primitive community  Class society: x3 labor, specialzation, private ownership
+ Definition: Special political organization | Protect right and interests of ruling class |
Maintain society stability | Have enforcement power
Nature of State
+ Class-conscious face
+ Society face
Separation
+ Legislative: Make law
+ Executive: Carry out law
+ Judicial: Interpret law
Origin of Law
Nonmaxist view
+ Social Contract theory: Law represent general will of society
+ Psychological theory: Law is people’s intuition about the right way to behave
+ Theology: created by God
Maxist theory
+ Element of social | “Superstructure” the form and use of which, at any given time, will be
reflection of condition of economics based
+ Instrument of class domination | used by ruling class | maintain and advance its interests
Definition
+ Legally enforcable rules
+ Made by authorities
+ Within a society
+ All around
Distinguish
Rules >< Law
Not all rules are law
Rules: Tell people what should (not) do
+ Legal: Law
Apply to all individuals in society
Obeyed by whole community
Made by law-making body
Enforced through court
Consequences for breaching: Prescribed sanction/remedies
+ Nonlegal: Rules, determine which behavior is unacceptable
Specific groups/institutions
Specific indi/groups
Indi/groups
Leaders
At discretion of leader
Moral >< Law
Moral: Concept about being good/evil, right/wrong
Address visual behavior + attitude + intention
Principles of moral based on culture + religion + experience
 3 TH:
+ Legal >< Immoral
+ Moral >< Not required by law
+ Both
Custom >< Law
Custom: Based on common concensus about way things should be done properly
 Repeated practice
If people not follow  Not bad but perceived as odd, uneducated, awkward
Sources of Law
Case Law
+ = Stare decisis doctrine
+ A collection of principles and rules | based on judge’s decision  Judge-made
law/precedent
+ Common law countries: US, UK, Sing, Malay, New Zealand, Canada, …
+ Principle of precedent: Court apply rules of previous case which tried on higher court,
where facts are the same
+ Court only apply key reasons  ratio dedicendi
+ Principle of stare decisis: Similar case  Treat alike  Same consequence
+ Principle of distinction: Find out difference between curent and previous case
Statute Law
+ A system of written rules | enacted and created by a legislative body of government
+ Civil law countries: VN, France, Germany, …
+ Consist:
Legislation: Constitution + Code + Act | Created by Parliament
Delegated legislation: Parliament delegate power to make law to other state agencies  Refer
to law made by government ministers/local authorities whom Parliament…
Legal document
+ Constitution/Code/Act: NA
+ Order: President | PM | SC
+ Ordinance: SC
+ Decrees: Government
+ Decision: PM
+ Circular: Minister of Ministry | Supreme Court
Statute Law vs Case Law
Conflict  Statute
No statute  Case
Use case  Interpret statute
Legal norms
General rules on conduct | promulgated, recognized, guaranteed by state | regulate social
relations | in according to orientation + purpose of state
 Mandatory rules on social behavior established by state
Structure
+ Assumption (Hypothesis): Who? When? In what condition/situation?
+ Regulation (Disposition): Must (not) do? How to do? Allow to do?
+ Sanction (Consequence)
 Not necessarily to have all 3 parts + correct order
Clasification
Public >< Private
Public: Indi vs State | State vs State
+ Criminal
+ Administrative
+ Substantivie
+ Constitutional
Private: Indi vs Indi
+ Civil
+ Procedural
Criminal >< Civil
Criminal: Offence against whole community even though only one person may suffer
+ Prosecutor  Defendant
+ Sanction/Remedy: Imprisonment, fine, …  Tiền sẽ trả về cho Nhà nước
+ Doubt >90%
Civil: Dispute between indi/business organization
+ Claimant/Plantiff  Defendant  Appellant
+ Damage, injunction, …  Tiền sẽ trả cho bên đối phương (compensate – bù đắp tổn thất)
+ 51%/49%
Substantive >< Procedural
Substantive: Create & control right & obligation of parties
 Element/Condition to apply
Procedural: Process of enforcing right & obligation under substantive law + settlinng dispute
 Rule on procedure/evidence
Statutory interpretation
Literal: Interpret theo nghĩa literal và ordinary nhất
Golden: Nếu literal cho ra kết quả absurdily/obnoxious  Judge phải adapt another để cho ra
kết quả least absurdily
Mischief: Court phải xem law như thế nào before legislation được passed để tìm ra
gap/mischief legislation intend to cover  Giải quyết chúng
Class: General follow particular  Interpret general theo particular of same class
Customs
Rules on conduct
+ Clear content  Determine right & obligation of indi and legal entity of civil legal relation
+ Formed and repeated many times over a long period
+ Widely recognized and adapted
Rules on application: If it is not required by law + parties cannot make aggreement  Apply
customs but not contravene basic principles of Civil Law

CIVIL LAW OF VN
Definition
+ Separate law branch thuộc VN legal system
+ Regulate legal relations: Property (quan hệ tài sản) and personal identity (quan hệ nhân
thân)
+ On basis of: Equality | Freedom of will | Property independence | Self-responsibility
Types of legal relation
+ Property: Có thể định giá bằng tiền tệ  Trao đổi/chuyển giao được
+ Personal: Không thể định giá bằng giá trị tiền tệ  Ko thể trao đổi
 TUY NHIÊN: Có 2 dạng personal
+ Ko gắn liền tài sản: Như trên
+ Gắn liền tài sản: Phát sinh thêm quyền tài sản  Trao đổi được sau đó
General principles
+ Equality
+ Freedom & Voluntariness
+ Honesty & good faith
+ Respect national – ethnic – public interest | legitimate right & interest of other
Sources
Statutory law
Legislation
+ Constitution (2013)
+ Code (2015)
+ Other
Delegated legislation
+ Case law
+ Customary law
Civil legal relation
Definition
+ Thuộc social relation
+ Arise from material and personal interest
+ Governed by Civil law
Charactiristics: Parties
+ Equal
+ Responsible for their own acts
+ Have free will
+ Independent in property
Elements
Objects
+ Things
+ Conduct
+ Nonconduct
Content: Roght & obligaiton of parties
Party:
+ Indi
+ Legal entity
+ Household & co-operative groups
+ State-special organization
 Have capacity
 Indi + Capa = Party
 (civil) Legal capa + Act capa = Capa of party
Capacity for civil conduct (act capa)
+ Person’s capability to establish and exercise right | perform obligation through acts
+ Depends on age/mental health status
+ No: <6
+ Limited: 6<= <18
+ Full: >= 18
Capacity for indi (legal capa)
+ Person’s capability to have right & obligation
+ All indi have the same capa
+ Commence at birth | Terminate at death
Legal entity: Must have
+ Name in VN
+ Charter of law
+ Management body
+ Establish in accordance to VN law
+ Have legal/authorized representative
Capacity for legal entity
+ Arise from: Time when establish
+ Registration of operation: Time of entry into registration
+ Terminare: Time of entry terminated
 Công ty tư nhân: gắn liền tài sản với công ty  Not
 Công ty TNHH 1 thành viên: ko gắn liền tài sản  Yes
Grounds for establish, change, terminate civil legal relations
+ Regulated by law
+ Parties have capa
+ Legal event: Event arise in form of conduct/nature incident  Lead to … of legal relation
Ownership relation
Thuộc civil legal relation
Parties: Owner – Nonowner
Objects: Property/Benefit aimed at
Content: Owner have right to possess, use, dispose. Othert parties have o respect owner’s
right and have the right to possess, use under owner’s authorization, sometimes have right to
dispose
Types
+ Private: Natural/Juridical person
+ Multiple: More than 1
Ownership right
+ Right to possess: Hold & control property
+ Right to use: Exploit usage | Enjoy yiels and income derived from property
+ Right to dispose: Transfer ownership | Renounce right | Destruct property
Possession of legal basis
Owner possess property
Person who authorized by owner have right to manage property
Person who transferred right by owner through civil transaction in according to provision of
law
Person who discover and have the right to keep in according to this code or relevant:
+ Derelict
+ Unidentified owner
+ Let drop on ground
+ Left over out of inadvertence
+ Buried/Sunken
Stray
+ Domestic
+ Poultry
+ Raised aquatic
>< Nonlegal basis:
+ Based on perception of owner
+ Bona fide: Ảo tưởng là mình có quyền sở hữu
+ Not in good faith
Civil obligation
Definition
+ Obligation acts
+ 1/More obligors transfer object/right, pay money, provide valuable papers, perform
obligation, refrain from perform obligation in interest of obligee
Bases for giving rise to
+ Contract
+ Unilateral legal act
+ Unauthorized act performance
+ Unlawful possession/use/receipt benefit from property
Bases for termination
Termination of obligation release obligors from performing obligation
Types
+ Separate (Severable): Mỗi obligor chỉ perform phần obligation đã chia
+ Joint:
Obligee có thể bắt một trong những obligor thực hiện hết obligation
Người bị bắt làm hết có thể yêu cầu những người còn lại trả tiền cho mình (coi như tiền công)
Nếu obligee release 1 trong những obligors (người này kp lm hết)  Những người còn lại
tiếp tục thực hiện phần đã chia của mình
Nếu obligee release người đã được chỉ định lm hết từ trước  Những người còn lại cũng
được release

CIVIL CONTRACT
Definition
+ Agreement between parties in relation of formation, modification, termination of civil right
and obligations
 Agreement which legally binds parties
Types
Based on division on civil right & obligation between parties
+ Unilateral: 1 has right & 1 has obligation
+ Bilateral: Both have right & obligation to each other
Based on interdependence of validity between contracts
+ Main: Not depend on sub
+ Sub: Depend on main
+ Contract for third party
Parties enter into  Perform obligation >< Third party: Enjoy benefit
+ Conditional
Obligation performance depend on occurrence, amendment, termination of certain event
Formation
Principle of enter into (cứ principle thì là liệt kê các đống tương tự này)
+ Freedom
+ Voluntariness
+ Not violate law and social ethic
+ Equality & good faith & honesty
Content
+ Parties agree content
+ Have: Subject of matter | Quanlity & Quantity | Price and payment method | Time-limit,
place, obligation perform method | Right & obligation of parties | Liabilities for breach |
Method of resolving dispute
Condition of validity
+ Parties enter voluntarily
+ Parties have capa
+ Conduct & purpose are legal
+ Form is legal: Conduct | Words | In writing | Notarized document
 Parties must comply with law + Foreign: In writing
Invalid  Legal consequences
Causes
+ Violate one of 4 conditions above
+ Violate law/social ethic
 Legal consequence
+ For parties: Avoid not giving rise to, amend, terminate right & obligation from the time of
establishment
+ For sub: Inivalidity of main terminate sub | Parties can replace main into sub
Agreement
Offer definition: Clear expression made by offeror intend to be bound by offer to other
(determined party/public)  cả 2 đều phải lm cùng 1 lúc (hereinafter collectively...)
Offeror  offeree
(offer contract  accept)
Offer >< Invitation to treat
Offer = Proposal  (accept)  Contract
Invitation to treat = Invite sb to make a proposal  (respond)  offer
Example
+ Display of goods with price tag in shop window/supermarket shelf
+ Advertisement, catalogues, brochures
+ Company prospectuse (bản cáo bạch): Invite application of public to its subscribe share
+ Aunction | Tender
Time-limit for effectiveness
+ Definition: Period of time offeror is bound by offer (dựa vào definition của offer)
+ Can be specified in offer
+ If no: within reasonable time
+ Cannot make an agreement: court will set a time-limit
Termination
+ By acceptance
+ By rejection
+ By modification
+ By revocation
+ By time-limit expire
Acceptance
+ Definition: Reply to offeror accept the entire content
+ Must be communicated with offeror
+ Must be received by offeror within period in offer
+ SILENCE IS NOT ACCEPTANCE
+ Acceptance is effective when
VN: Be received by offeror  Receipt rule
Foreign: Letter is posted  Postal rule
+ Time-limit for acceptance
+ Withdrawal of notice
Obligee can withdrawal notice if notice arrive prior to/at the same time offeror receive
accepting reply from obligee
Counter-offer: Acceptance but wan to modify some terms/introduce new terms
 Lúc này ko còn là accpetance nữa mà đã chuyển thành counter-offer
Counter-offer >< Inquiry
Counter-offer: Một khi đã muốn như kia  Invalidate offer (mất hiệu lực)
>< Inquiry: Not terminate offer
How contract is made (Quy trình tạo nên contract  ghép bừa)
+ Offer  Acceptance  Contract
+ Invitation to treat  Offer  Acceptance  Contract
+ Offer  Counter-offer  Acceptance  Contract
Performance: Performance of acts | of a party | in contractual relation  Satisfy legitimate
right & obligation to others (cứ của other là có từ “legitimate”)
Excuse for breach
+ Force majeure
+ Fault for non-breaching party