CHAPTER 1:

STATE AND LAW

TRẦN THANH TÂM

(LLM, PhD Candidate)
 OUTLINE
1. Definition of Law
2. Sources of Law
3. Categories of Laws
 DISCUSSION
1. A restaurant guest is unhappy with the quality of service provided
during his meal. He complains to the manager and angrily demands
his money back, but his meal has been eaten. Is the guest legally
entitled to a refund?
2. A resort employee is arrested by the local police for driving under
the influence of alcohol. He is employed by the hotel as a van driver,
but was not on duty at the time of the arrest. Should the hotel
suspend his employment?
3. A hotel food and beverage director is presented with a bottle of rare
and expensive wine as a Christmas gift from her linen vendor. Can
she legally accept the gift without threatening her employment
status?
4. A franchise restaurant owner receives a letter from her franchisor
stating that the “casual Friday” dress code policy recently adopted
by the owner is in violation of the franchise agreement. Must the
owner change her policy?

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 DISCUSSION
• What is the importance of studying law to a
business student?
 1. DEFINITION

• Law may be defined as a body of rules, created

by the state, binding within its jurisdiction and
enforced with the authority of the state through
the use of sanctions
2. Sources of law in Vietnam
Constitution
Legislation Acts, Codes

Delegated Ordinances
Decrees
legislation Circulars
Decisions

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 3. Categories of Law

Law is a very large field, and it is common to

divide it into categories

• Criminal law and civil law

• Private law and public law
• Substantive law and procedural law
• Common law and civil law

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 CRIMINAL VS CIVIL LAW
CRIMINAL PROCEEDINGS CIVIL PROCEEDINGS
Purpose To punish the perpetrator of the crime; To seek a remedy for a
to deter others from committing the private wrong
same crime
Parties Public prosecutor prosecutes the Plaintiff sues the defendant
accused/defendant
Discretion to The discretion whether or not to initiate The discretion whether or
initiate an action an action lies with the state not to initiate an action lies
with the plaintiff
Burden of proof Public prosecutor must prove the case Plaintiff must prove case on
beyond reasonable doubt the balance of probabilities
Decision of the Guilty or not Guilty Liable or not liable
Court
Sanctions Jail sentence, fine, other Damages, specific
performance, injunctions,
other
 DISCUSSION
1) Armed team broke into a bank;
2) A works for a restaurant and the restaurant
failed to pay him salary for 2 months;
3) A has his house for foreigners rent;
4) A killed B for money;
5) While driving the car beyond speed limits, A
crashed into B and made him injured;
6) a married couple wanted to divorce
7) Seller fails to deliver goods on time to buyer
 DISCUSSION
8) A customer got poisoned after having lunch in a
restaurant;
9) Disagreeing with each other on how to share the
house left by a father, the two brothers fought each
other until death;
10) Being much impressed by huge profit, A involved
in trafficking heroine;
11) A involved in trafficking newly born babies
abroad;
12) A company makes his drinking products having
labels easy to confused with Lavie
 PENAL CODE 2015
Article 260. Offences against regulations on road traffic
1. Any person who violates regulations on road traffic safety
in any of the following cases shall be liable to a fine of
from VND 30,000,000 to VND 100,000,000 or face a
penalty of up to 03 years' community sentence or 01 - 05
years' imprisonment: a) The offence results in the death
of 01 person or bodily harm to 01 person who suffers
from ≥ 61% physical disability;…
2. If the offence results in bodily harm to 01 person who
suffers from 31% - 60% physical disability, or bodily harm
to 02 or more people who suffer from a total physical
disability of 31% - 60%, the offender shall be liable to a
fine of from VND 30,000,000 to VND 100,000,000 or face
a penalty of up to 03 years' community sentence.
 Private Law and Public Law

• Private Law and Public Law are concerned

with relationships

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 Private Law

• Private Law deals with the relationships

between ordinary people in everyday
transactions
• That includes you and me, as well as
businesses and companies

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Private Law

Individual Individual

Law regulates relationship

between them

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 Public Law
• Public Law deals with the relationships between
government organisations and ordinary citizens
– also between different government organisations

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Public Law

State State Bodies

Individual

Law regulates relationship

between them

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 DISCUSSION
• Criminal law
• Constitutional law
• Administrative law
• Law of contract
• Tort law
• Property law
• Family law
• Company law
 Substantive vs procedural law

• Substantive Law: Defines rights and

obligations

• Procedural Law: Establishes processes for

resolving disputes

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 Common Law and Civil Law

• Common Law and Civil Law are terms used

to describe legal systems
• A legal system is the way the law is
structured and operated in a country
– England and Vietnam have different legal
systems

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 Common Law

• Common Law is used to describe legal

systems based on the English legal system
• These are usually countries which were
once part of the British Empire
– eg: America, Australia, New Zealand

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 Common Law

• One of the unique features of the common

law is that it is judge-made law.
• The judgments of courts operate not only
to resolve the particular dispute of the
specific parties before the court, but also
stand as precedents for the resolution of
future disputes of a similar nature

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 Common Law

• Case law is merely the rules of law

announced in court decisions. Case law
may consist of interpretations of statutes,
regulations and provisions in the
constitution.
• A precedent is a decision that furnishes an
example or authority for deciding
subsequent cases involving identical or
similar legal principles or facts.
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 Common Law

• The doctrine of Stare decisis - a Latin phrase

meaning “to stand on decided cases.”
• Stare decisis has two aspects:
1. A court should not overturn its own
precedents unless there is a compelling
reason to do so.
2. Decisions made by a higher court are
binding on lower courts.
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 DISCUSSION

• PROS AND CONS OF USING PRECEDENTS

• THE ROLE OF PRECEDENTS IN VIETNAM

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 CASE LAW IN VIETNAM
‘Precedents are arguments and rulings written on
effective judgments or decisions (hereinafter
referred to as judgment) of the courts that are
selected by the Judicial Council of the Supreme
People’s Court and published by the Chief Justice
of the Supreme People’s Court in order for other
courts to study and adopt them when deciding
later cases.’
(Art 1- Resolution No. 04/2019/NQ-HDTP on
process for selecting, publishing and adopting
precedents)
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 Civil Law
• Civil Law is used to describe legal systems which are based on old
Roman Law (from the Roman Empire in what is now Italy)
• It has been built on and consolidated, particularly in France, from the
18th century.
• Napoleon Bonaparte came to power after the French Revolution, which
commenced in 1789; as well as expanding the French Empire, he drew
up a detailed civil code to apply to the whole of France. By 1810, the
Civil Code, the Code of Civil Procedure, the Commercial Code, the Code
of Criminal Procedure and the Penal Code, together known as the Code
Napoléon, had become law.
• The use of the Napoleonic Code spread throughout much of Europe
and, although most nations have since drafted their own codes, and the
French Code itself has been revised, it has had a strong influence on the
current legal systems of civil law countries.

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 Civil Law
• The essential features of the system are:
1) Civil Laws are a codified set of legal rules.
2) The codified Law bears a binding for all. There is
little scope for judge-made law in civil courts. Yet,
looking into the practical aspect, the judges follow
the precedents.
3) Writings of the Legal Scholars do have a
substantial influence on the courts.

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Common Law v. Civil Law
Below: A world map showing countries today that have a civil law system (light blue), countries that
have a common law system (green), and countries that have both (orange).

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 LEGAL NORM
• a mandatory rule of social behavior established
by the state
• Elements of a legal norm:
– Hypothesis
– Disposition
– Sanction

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 LEGAL NORM
• a mandatory rule of social behavior established
by the state
• Elements of a legal norm:
– Hypothesis: describes the circumstances in which the
disposition or sanction of the norm come into action
– Disposition: indicates the rights and duties of the
participants in relations arising under the
circumstances envisioned in the hypothesis
– Sanction: defines the consequences for persons who
violate the prescriptions of a particular norm
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 DISCUSSION
• The Buyer shall be entitled not to pay in full or
pay a part if he discovers goods are in damage
upon delivery and can pay only after the Seller’s
replacement.
• A married man who lives with another as spouse
shall be imprisoned from 3 months up to 1 year.
• If the value of the leased property decreases in
comparison with its condition at the time it was
received, the Leaser shall be entitled to demand
damages.
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 DISCUSSION
• Legal norm on the recognition of same-sex
marriage.
• Late coming policy for company employees
• FTU rules against Covid-19.

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 Origin of State

Primitive community/ classless society

Class society State

3 times of specializations

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 What is a state?
• Special political organization

• Protect the rights and interests of the

ruling class

• Maintain the stability of the society

• Have enforcement power

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Separation of powers

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Forms of states
State Apparatus