CHAPTER 1:

STATE AND LAW

TRẦN THANH TÂM

(LLM, PhD Candidate)
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?

3
1. The restaurant didn't violate the law and fulfilled the les.
ise -
offered the meal and the
guest paid
From business view; they can
give coupons, coucher free meal.
or

legal view: The restaurant didn't have to refund.

3.
Depending the type of sector of the and the
on
company
policy of the hotel.

court of conduct; be guy the ling his

-comply with the court of conduct of the hotel.

-> To be prudent in this situation

4. Article 289 of the Commercial Law.

 DISCUSSION
• What is the importance of studying law to a
business student?
to make a student aware about law.

To maintain a business in legal ways.

To make is aware of the legal issues involving
businesses and how to deal we them

To have secured business: if a businessis found not to be in

compliance with a law, it could possibly be subject to

very heavy fines.

 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
The difference betweenrules a law:

·
Anyone can make rules but only the state can make the law.

-
There are
many
sanctions entered to make people abide.

the law,
by
-

In Viet Nam, the National

Assembly (Quoiha makes the
law (Us: the Congress, UK: The Parliament).
 (Nquon via pluat).
2. Sources of law in Vietnam
example to proof that constitution is SL.
Give an

Constitution (The Supreme law

I
of the
country).
Legislation Acts, Codes
Ivan bain
lear C make by authority).
The first cost made in 1946,
was
by
Uncle Ho, 1993..., 2015 (Curent

Delegated Ordinances (sc Cina)

Decrees (Rhp Lenz)
I

legislation Circulars (long ti

Ivan bain col
Decisions Coujet dnt)
evait).
If
anything is unconstitutional, it should be abolished (revived/changed.
↳ constitution prevails. 6
The constitution will tell everything about the

country. About rights,

human latizens rights
-
Fundamental about the legal system.
↑Structurethe country's
law in
every aspects.
↑ core
issues of the
counting
Homework: Answer S
Ord
who made what
isCra
·

function of
-
main
o
-
Why we need the E

Give examples of f
(suggest Law on
fromulgation of legal
do
aument)
The diffence law us Code. Codes are laws arranged
↓ -> by subjects.
Bo It
slaw comavaial) Civil code, criminal code,
S
on

Maritime Code, Labour Code

Live (Criminal Procedural code.
 Code - sophisticated
many different
3 validity
The covers issue
Have the
-

same

- The law governs a

specific field,
EC: Civil Code:
aspects of human activities.
every
The
only difference is the
scope. deal with

Ordinance: cover the

thing that the laws don't,
can
change regularly, unstable, can be

upgraded.
ordiance on
foreign currency management: thap
last we quain by agoai he
ES:
Foreign money are not allowed to be used between

Vietnam people in
any transaction without the element

of foreign
- Between law and decree depending which have a

broader
validity.
prosecute: is to
appeal the case:
Kony casting ngl. (depend on the
who do the
party
appeal)
Resolution: Ngln: Guys. Order link
Official letter long rain

Form of the State: 15 of presentation

Absolute
monarchy constitutional
visto Pratic
A

Re public -
X Democratic

-> Aisidental
Democratic

↓Miey
political system UN ~

- ust
- UK.

Germany/France (Australia
AAA6-
Include References
I Definitions
-

in texts

is an (21 es)
 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

7
 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
cong for view
Parties Public prosecutor prosecutes the o
Plaintiff sues the defendant
accused/defendant bicao(bicon. ↳
Nguizen don
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
Nighice us chingibeyond
n: -
reasonable doubt not quangli the balance of probabilities
Decision of the Guilty or not Guilty ugohop by Liable or not liable = 50%
Court of the
imo
e
Sanctions Jail sentence, fine, other Damages, specific
:penalty performance, injunctions,
other cam
lent
laiman,a
 DISCUSSION
1) Armed team broke into a bank; Gini
2) A works for a restaurant and the restaurant
failed to pay him salary for 2 months; Civi
3) A has his house for foreigners rent; Cir
4) A killed B for money; Crimi
5) While driving the car beyond speed limits, A (Depend)
crashed into B and made him injured; Omi/Ciri(ArtCO
6) a married couple wanted to divorce rivi (Articles)
7) Seller fails to deliver goods on time to buyer Ciri
 DISCUSSION
8) A customer got poisoned after having lunch in a
restaurant; Crim
9) Disagreeing with each other on how to share the
house left by a father, the two brothers fought each
other until death; Ging
10) Being much impressed by huge profit, A involved
in trafficking heroine; Gimi
11) A involved in trafficking newly born babies
abroad; Gin
12) A company makes his drinking products having
labels easy to confused with Lavie Cr ↓
 1.

likely
b
responsible law
y has be

PENAL CODE 2015

to

↑
2.
5th.

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 Oliable 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.
Can cat two hogiam gite).
 Private Law and Public Law

• Private Law and Public Law are concerned

with relationships
The involvement of the state is the citence to
distinguish
between the public a
private Law

12
 Private Law (Latcwhan)

• Private Law deals with the relationships

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

13
Private Law

Individual Individual

Law regulates relationship

between them

14
 Public Law
• Public Law deals with the relationships between
government organisations and ordinary citizens
– also between different government organisations

15
Public Law

State State Bodies

Individual

Law regulates relationship

between them

16
 DISCUSSION
• Criminal law
•
•
•
Constitutional law
Administrative law
Law of contract
Sublic lan

3
Tort law
• Property law Arivate law.

• Family law
• Company law
 Substantive vs procedural law
let no dung
• Substantive Law: Defines rights and
obligations 14,1, +
heres
flat
• Procedural Law:fung
was sink this to
Establishes processes for
resolving disputes 5, 7, 6
Law on vil commercial arbitration be procedural
can

and substantive law.

18
 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
Islamic law: He thing phap lt Ho fiao-

19
 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

20
 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
D
stand as precedents for the resolution of
future disputes of a similar nature
↳ am le
21
 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. sources of lun
a
• Acprecedent is a decision that furnishes an
example or authority for deciding
subsequent cases involving identical or
similar legal principles or facts.
22
 Common Law
hus thuget
->
• The⑧doctrine of Stare decisis - a Latin phrase
meaning “to stand on decided cases.”
:Rely precedent.
on the

• Stare decisis has two aspects:

go against
1. A court should not W
->

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. the backbone of Common law
the

legal system 23
 DISCUSSION

• PROS AND CONS OF USING PRECEDENTS

• THE ROLE OF PRECEDENTS IN VIETNAM
&ros Cons ⑧

Some precedents could become 'out of date

Provides certainty in the law.
-

could be guilty for raping his

-

Ex: A man now

cases with similar material facts are bound wife

decisions -> provides idea of how
by past
case should be decided. -

Inflexibility
the could be decisions (unjust) ->
Provides consistent decisions within the sometimes a
wrong
bound follow
-

knock on affect, as
they are to
law-> ensure fairness, -> Uniformity. have a

them.
Brings complexity
- Time
saving
bound to decisions, courts
avoid. There are millions of cases decided by court,
being past it is often difficult to find relevantpast
saves the process
long periods of litigation
-

of deciding legal ruling which often take a long time.

cases ->
Easy to
apply wrong
past decision 24
decisions made in latter case
->
unjust
2) Are dictability; the outane is

foreseen
 DISCUSSION
First-instance court to sotheir
Appealing court: tophic than

• PROS AND CONS OF USING PRECEDENTS

• THE ROLE OF PRECEDENTS IN VIETNAM
The role of precedents in Vietnam.
To decide cases with similar materials to ensure
rights, benefits
-

of individual,
an
organizations, ensure seced fairness and
also contributes to
improve, complete the law and improve the
effectiveness of the of
quality resolving judicial cases.

There are
32 precedents recognized by the Supreme High Pplunt-
of
Judicial Council
Article 6 (Civil Code 2015),toVietname regal systemansiderreledat 24
proof and
legacy
 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)
25
 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

ET
18th century.
• Napoleon Bonaparte came to power after the French Revolution, which
commenced in 1789; as well as expanding the French Empire, he drew
O
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.

26
 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.

27
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).

28
 LEGAL NORM
• a mandatory rule of social behavior established
by the state
Guy plan phap lut &

• Elements of a legal norm:

who? (In which,circumstance.
– Hypothesis -Ga dink." the circumstances in which the disposition
action.
Right? Obligation? orsanctionof theworm come into

– Disposition - Quy dink: indicates the rights and duties of

Punishments the
– Sanction - Chetai, participants in relations

Civil code

Art 5-Dieu

↓
+ khrain
clauses

Points->Diem. 29
 LEGAL NORM
• a mandatory rule of social behavior established
by the state
• Elements of a legal norm:
– Hypothesis: describes theM circumstances in which the
- disposition or sanction of the norm come into action
. . .

– Disposition: indicates I the rights and duties of the

-- arising under the
participants in
-
relations
circumstances envisioned in the hypothesis
w
– Sanction: defines the consequences for persons who
#violate the prescriptions of a particular norm
30
 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. obligation: married
a
man is allowed
not to

live us another as spouse

• 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.
31
 DISCUSSION
• Legal norm on the recognition of same-sex
marriage.
• Late coming policy for company employees
• FTU rules against Covid-19.
choices
25 multiple

32
 Origin of State
Primitive societies are small-scale, face-to-face, with
simple subsistence technology, without writing, money, or
political centralization, and based on descent, gender and
age
Primitive community/ classless society
There's conflict at the beginning
no

-> Division in property.

Class society State

3 times of specializations

To stop conflicts and violence between people and

ethnics it is born ble class.
of the ruling
33
 What is ofa state?
separation(toc thuet plan
power guien)
• Special political organization

• Protect the rights and interests of the

C:
ruling class Main
function

1
• Maintain the stability of the society

• Have M
enforcement power
-

34
 Separation of powers

seapphap) (hantphp) (troplap) -

35
Forms of states

France, Italy, Japan

State Apparatus
Standing
↓
Committee
is the only govern.
who can interpret
the law.
 chairman of
the National
Assemblyin

f-General Soetary of
the
it is

bigh
Vietnam
↳ Prime Munister.
->

President-