Law

Chapter 1: Overview of the Vietnamese state and
legal system
I, Origin of the state 1, Theories of the state origin
a) The Non-Marxism theory
— Does not objectively reflect the origin of the state
— Does not reflect the profound reasons leading to emergence of the state in
socio-economic history
— Does not reflect the class nature of the state
— The divine theory:
+ The state power is eternal and unchanged
+ Rulers are chosen or appointed by a divine
+ The ruler’s authority is considered absolute and beyond question
+ Obedience to the King is ordained to God and violation of it will be a sin
— The partriarchal theory:
+ Patriarchy is defined as the “rule of the father”
+ This father has unlimited power and the entire decision-making power
+ Protects the feudal monarchy
+ The state is said to have originated from families related to father
+ The supreme power of the king is similar with the father in a family
— The social contract theory:
+ Human living naturally no-state
+ The State power belongs to people
+ A Social contract between such people created state
+ People have the right to be protected and served by the state
b) The Marxism-Leninism theory
The state is not an eternal, unchanging phenomenon, but is formed,
developed and perished under the certain historical conditions. The state is a
phenomenon arising from society, a product of human society. The state
only appears when society reaches a certain level of development and
disappears when the conditions for its existence no longer exist
— Reflect the profound reasons leading to the emergence of the state in
socio-economic history
— Reflect the class nature of the state
2, The emergence of the state
(3rd labor division)

Animal husbandry Commerce appeared
separated from (1st labor division)
agriculture State
-
(2nd labor division)

appeared
Handicraft
Primitive
separated from
communism
farming
a) Primitive communism:
— Social: — Characteristics:
+ Early human society as small clans/tribes + No class distinction
+ Organized around kinship ties + No state
+ No law
— Economic:
+ Nomadic hunter-gatherer lifestyle
+ No surplus accumulation
b) 1st labor division c) 2nd labor division

Metal labor tools replaced stone tools More surplus accumulation
=> More products from gathering
Needs for “better food, better life”

More surplus => Used (pottery, jewelry, weaving,…)
surplus to feed wild animals
Handicraft appeared
Animal husbandry appeared
d) 3rd labor division
Agriculture, animal husbandry, and
handicraft industry developed
More goods => Needs to exchanges goods
Trading appeared => Money appeared

Changed in society: new class and
I
private ownership appeared, needs for State
1st
3rd ownership increase => led to class
appeared
distinction & class confl
2nd Damaged the structure of clan/tribe =>

Primitive The social scenario required a new
Communism organization/new structure to manage
and govern
II, Definition, essence of the state

1, Definition of the state
a) Definition
The state is a politically organized community with a system of
government to coerce and implement social management functions. Such
functions are to implement and protect the interests of the ruling class in
society with opposing classes; or of the working class and working people
under the leadership of the Party in socialist society
b) Characteristics of the state
— The state divides the population into administrative and territorial units
— The state establishes public power with command - obedience method
— The state is an organization with sovereignty
— The state has the right to promulgate laws and force all members of society
for implementation
— The state issues tax regulations and collects taxes
2, Essences of the state
a) The class nature of the state
— The state is a product of class distinction and class conflict. Thus, the state
is a special coercive apparatus of the ruling class
— The state exists, first of all, to protect the interests of the ruling class despite
the fact that state represents the entire society
b) The social nature of the state
— It is impossible for the state to exist sustainably without serves the
interests of other classes in the society
— Therefore, the state has to handle social affairs and take care of the
material and spiritual lives of other classes
3, Functions of the state
a) Internal affairs
Internal affair function is the main function of the state within its own
territory, including:
— Maintain political security and ensure social safety
— Protect legal order, rights and legitimate interests of the ruling class
— Organize and manage the economy
— Organize and manage culture, education, science and technology
b) External affairs
Externals affairs including the role of the state in international relations
with other states, entities, and other people in the world
4, The state types
— State type is the basic characteristics of the state in total, expressing the
class nature, roles, social values and the conditions for the emergence,
existence and development of the state in a certain economic form
— The replacement of a new type of state for an old type of state always
carried out through a social revolution or social reform
— The latter one always dominant
— State types includes:
+ chattel slavery state
+ Feudal state
+ Bourgeois state
+ Socialist state
5, The State Forms
State form is the method of organizing and implementing state power.
State form is a concept formed from three elements:
+ Form of the Government
+ Form of state structure
+ Political regimes
a) Forms of Government
— It is the organization method and order to establish the supreme bodies of
the state
— It is the interrelationship between state bodies as well as the level of people's
participation in the establishment of those bodies
— Divided into: monarchy and democracy
Monarchy
— It is a form of government in which the state supreme power is fully or
partially centralized to the head of state according to the inheritance
principle
— Monarchy includes: Absolute monarchy and Partial monarchy/
Constitutional mornarchy
Absolute monarchy Partial monarchy/
Constitutional monarchy
- The head of state has the supreme - The head of the state only has
and boundless power partial supreme power beside another
For examples: King, Queen, Emperor power authority
- Such supreme power is passed from - The power of head of the state is not
generation to generation according to impact to the law-making and law-
the principle of inheritance enforcement
- Examples: Saudi Arabia, Brunei, - The government and Prime
Qatar Minister has more power and work in
a defined term
- Examples: Spain, The UK
Republic
Republic is a form of government in which the state power is centralized to
the representative bodies. Such representative bodies is elected for a defined
term
Aristocratic republic Democratic republic
The right of election is stipulated for The right of election is stipulated for
aristocratic class only state’s people
b) Forms of state structure

— It is the administrative-territorial structure of the state
— Reflect the characteristics of the interrelationship between the
administrative-territorial parts of the state, and between central state bodies
and local state bodies
Unitary state Federal state
- The state territory is divided into - Federal state is constituted by two
administrative units: province, states or more
district, ward… - There are more than one state power
- There is a centralized state power body, administrative bodies system,
body, a centralized administrative and courts system
bodies system, a centralized courts - There are more than one legal
system system
- There is only one Constitution, one - Each state has its own sovereignty
legal system - Examples
- The state sovereignty is integrity
- Examples
— Political regime is the methods that state power bodies use to exercise
state power: democracy and anti-democratic (fascism)
Monarchy Republic
Supreme Inheritance Election
power
Subjects Individuals Assembly
Name of
head of Kings/Queens President prime
state minister
Conclusion
— The state is not an eternal, unchanging phenomenon, but is formed,
developed and perished under the certain historical conditions. The state is a
phenomenon arising from society, a product of human society. The state
only appears when society reaches a certain level of development and
disappears when the objective conditions for its existence no longer exist
— The state has its own characteristic to distinguish from other
organizations. The state’s two function of internal affairs and external
affairs is simultaneously implemented to govern and manage the society
— The state form is the method of organization and implementation state
power under 3 elements: forms of government, form of state structure, and
political regime
Chapter 2: The state of Vietnam

I, The National Assembly of Vietnam
Generally speaking, the state of Vietnam is a system with three
basic functions, typically entrusted to central organs, of law-making
(legislature), law determination (courts and tribunals), and law
enforcement (administration, police, army)
1, Legal Position
a) Legal basic
Article 69 – the 2013 Constitution
— The National Assembly is the highest representative body of the People
and the highest state power body of the Socialist Republic of Vietnam
— The National Assembly shall exercise constitutional and legislative
powers, decide on important issues for the country, and conduct the
supreme oversight over the activities of the State
b) Method of constitution
People’s election
=> Represent for People’s will of their constituency and the State’s people
c) Participants: National Assembly’s deputies who represent for each social’s
elements: religion, occupation, gender, ethnic … and their
constitutency
d) Supervise: National Assembly’s deputies report their activities for elector
at their constituency
2, Function
— Constitutional – making and law-making
— Decide fundamental matters of the nation including: socio-economic
development, financial and monetary policies, issues of war and peace,
national defense and security, and external affairs
— Establish central government bodies
— Exercise the supreme oversight
— Decide to hold referenda
3, Structure
a) The Standing Committee of the National Assembly
— Including Chairperson, Vice Chairpersons and Members
— The permanent body of the the National Assembly
— Organize and hold issues of the National Assembly
— Decide urgent issues when there is no National Assembly sessions
b) The Ethnic Council
— The Ethnic Council shall study and make proposals on ethnic issues to
the National Assembly
— Exercise the power of overseeing the implementation of policies on ethnic
groups, programs and plans for socio-economic development in
mountainous and ethnic minority areas
c) Committee of the National Assembly
— Verify draft laws, proposals on laws, other drafts
— Exercise the oversight power within the scope of their powers and tasks
prescribed by a law
4, Others activities
— Term: 5 years
— Working by holding sessions (2 sessions/year)
II, President
1, Legal Position
a) Legal basic
— The President is the Head of State and shall represent the Socialist
Republic of Vietnam internally and externally
b) Method of constitution
— The President shall be elected by the National Assembly from among
its deputies (Article 87)
— The Vice President shall be elected by the National Assembly from
among its deputies (introduced by President) – (Article 92)
2, Function
Method of constitution
— Play a key role in internal and external relations
— Have the rights in legislative, executive, and judicial fields
— Propose to the NA to elect, release from duty, and remove from office, the
Prime Minister, Chief Justice of the Supreme People’s Court or Procurator
General of the Supreme People's Procuracy
— Have the right of grant pardons
— Other functions stated in Article 88
III, Government
1, Legal Position
a) Legal basic
— The Government is the highest state administrative body of the Socialist
Republic of Vietnam, shall exercise executive power, and is the executive
body of the National Assembly.
— The Government is responsible to the National Assembly and shall
report on its work to the National Assembly, the Standing Committee of
the National Assembly and the President.
b) Method of constitution: constituted by the NA
2, Function
Executes three basic function:
+ Law-making
+ Law-administration
+ Law-enforcement
Bộ Quốc phòng Ministry of National Bộ Xây dựng Ministry of Construction
Defence
Bộ Công an Ministry of Public Bộ Thông tin và Truyền Ministry of Information
Security thông and Communications
Bộ Ngoại giao Ministry of Foreign Bộ Giáo dục và Đào tạo Ministry of Education
Affairs and Training
Bộ Tư pháp Ministry of Justice Bộ Nông nghiệp và Phát Ministry of Agriculture
triển nông thôn and Rural Development
Bộ Tài chính Ministry of Finance Bộ Kế hoạch và Đầu tư Ministry of Planning and
Investment
Bộ Công Thương Ministry of Industry and Bộ Nội vụ Ministry of Home Affairs
Trade
Bộ Lao động - Thương Ministry of Labour, War Bộ Y tế Ministry of Health
binh và Xã hội invalids and Social
Affairs
Bộ Giao thông vận tải Ministry of Transport Bộ Khoa học và Công Ministry of Science and
nghệ Technology
Bộ Văn hóa, Thể thao và Du lịch Ministry of Culture, Sports and Tourism
Bộ Tài nguyên và Môi trường Ministry of Natural Resources and
Environment
Thanh tra Chính phủ Government Inspectorate
Ngân hàng Nhà nước Việt Nam The State Bank of Viet Nam
Ủy ban Dân tộc Committee for Ethnic Affairs
Văn phòng Chính phủ Office of the Government
IV, Local Government
1, Legal position
Legal basic
— The administrative units of the Socialist Republic of Vietnam shall be
defined as follows:
— The country shall be divided into provinces and centrally run cities; A
province shall be divided into rural districts, towns, and provincial cities;
a centrally run city shall be divided into urban districts, rural districts,
towns, and equivalent administrative units
— Regarding to the administrative unit, the country is divided into three
levels: provisional, district, and commune levels
— Regarding to the local administrative organ, there are two organs: People’s
Council and People’s Committee
V, People’s Court
1, Legal Position
Legal basic
— The People’s Courts are the judicial bodies of the Socialist Republic of
Vietnam and exercise judicial power
— The People’s Courts include the Supreme People’s Court and other Courts
prescribed by a law
— The People’s Courts have the duty to safeguard justice, human rights,
citizens’ rights, the socialist regime, the interests of the State, and the lawful
rights and interests of organizations and individuals
2, Function
Legal basic
— The courts represent the state in addressing legal violations,
maintaining justice, ensuring the state’s interest, and ensuring
organizations’ and individuals’ rights and legal interest
— Characteristics on trial’s function of the Courts:
+ The scope of trial is large: criminal, civil, trade, labor, administration,
and others
+ Only courts can conduct the trial function on behalf of the state
— Must follow the strict procedures
— Trial is the latest and highest resolution in settling disputes
3, Structure
— Supreme People’s Court
— 63 Provincial-level courts
— 678 District Courts (Military Court work independently)
— In which:
+ 741 first-instance courts (a total of 678 District Court and 63
Provincial-level Courts)
+ 66 Appellate Court (a total of 63 Provincial-level Courts and 3 Appellate
Courts of the Supreme Power’s Court)
+ 69 Courts which implement judicial reviews and retrials (a total of 63
Provincial-level Courts, 5 specialized courts of the supreme People’s court and
the Judge’s Council of the supreme People’s court)
VI, People’s Prosecution

1, Legal position
Legal basic
— The People’s Procuracies shall exercise the power to prosecute and
supervise judicial activities.
— The People’s Procuracies include the Supreme People’s Procuracy and
other Procuracies as prescribed by a law.
— The People’s Procuracies have the duty to safeguard the law, human
rights, citizens’ rights, the socialist regime, the interests of the State, and
the lawful rights and interests of organizations and individuals, thus
contributing to ensuring the strict and unified observance of the law.
2, Function
— Exercise the power to prosecute
— Supervive judicial activities
Chapter 3: Origin and definition of Law
I, Origin and definition of Law
1, Definition of law
Law is a system of general mandatory rules of conduct which is
promulgated and enforced by the state, expressing the will of the ruling
class in society to govern social relations
2, Origin of law
— In primitive communism, human run the social by custom, belief,…
— Coercion exists and conducted by the community not by a professional
organization/body
— Once class distinction and state appears, new classes, new social relations,
new social issues appear
=> A simple and basic belief/custom is not strong enough to manage the
social
— Ruling class needs an effective tool to manage the social to protect ruling
class’s interests
=> Law (include norms and regulations which can govern the social
phenomenon) appears with a very close connection with the emergence of the
state
— Under Marxism– Leninism, there are 2 ways in which law is formed:
+ When state appears, appropriate customs (from previous period) which suitable
for protecting ruling class’s interest was remained
+ New legal norms appears and being adjusted to govern the community
II, Essence of law
1, The class nature of the law
— In order to protect ruling class’s interests and social order, the state
desires people to act in accordance with the state’s will
— Thanks to the state power, the state imposes their will to social through the
system of legal norms and regulations
2, The social nature of the law
— Individuals and organizations having diverse relationships expressed in
different behaviors. The state recognizes appropriate behavior and legalize to
be legal norms
— Legal norms are not only a measure of human behavior but also an
effective tool to analyse and develope social behavior in accordance with the
law
3, Function of law
a) Govern social relations
— Social relations always diverse and complex
=> Legal norms and regulations help to orient such relations appropriately
b) Protect social relations
— Legal system is a system of general mandatory rules and has its own
sanction system to force people to obey
— When any breach of law/violation arises, legal– with its sanction system–
giving appropriate mechanism to protect the social relation
c) Education
— The legal norms contain political, economic, and social information with
social ethical values
— Due to the education and propagation, the people's legal consciousness
about social ethical values is enhanced
— The individual conciousness is then formed, being a model of behavior in
accordance with the requirements of the law
III, Characteristics of law
1, Law is universally normative
— Firstly, the law proposes a conduct of behavior for people in a social relation
while social relations appear in different areas of life
=> Wherever there is a need to regulate social relations, there is law
— Secondly, the law is applied in different space, different timeline, and
different subjects
— Third, the state aims to regulate common and typical social relations,
legalize those typical relationships into legal norms
2, Law is Formality
— Law is contained in certain forms. In other words, legal norms regulations
must be contained in sources of law such as legal customs, legal precedents,
and legal documents
— Formality is a condition to distinguish law and non-legal regulations,
and also creates unity, rigor, clarity, and accuracy of the law system
3, Law is coercion and enforcement
— Law is promulgated by the state through many strict and complex
procedures with the participation of many authority agencies, organizations
and individuals.
=> Thus, law is scientific, strict and precise in adjusting social relations
— The law is enforced by the state through many measures, including strict
enforcement measures such as fines, imprisonment.
=> The state's enforcement has made the law always been respected and
strictly implemented by organizations and individuals
Chapter 4: Vietnamese Legal system

I, Legal structural system
1, Overall
— The Vietnamese legal system is fundamentally based on the Soviet
Union’s system of law in that “law” is “state law”
— Law refers to a system of regulation created by state power to regulate all
social relations and guaranteed by that power
— There are two concepts:
+ Legal system: internal structure of law
+ Legal documents system: external structure of law
2, Legal structural system
a) Legal norms
— The smallest unit in the
structure of the legal system
— Legal norms are the rules of
conduct applied to regulate social
relation
—Legal norms should be presented
clearly, exactly, and with one
meaning
Ex: Article 1– The 2013 Constitution

The Socialist Republic of Vietnam is an independent and sovereign country
enjoying unity and integrity of territory, including the mainland,
islands, seas and airspace
Điều 1– Hiến pháp 2013
Nước Cộng hòa xã hội chủ nghĩa Việt Nam là một nước độc lập, có chủ
quyền, thống nhất và toàn vẹn lãnh thổ, bao gồm đất liền, hải đảo, vùng
biển và vùng trời
Ex: Article 299.1– The 2015 Criminal Code– Terrorism
Any person who harms other people's life or destroy property of another
organization or individual to bring terror to the public shall face a penalty
of 10 - 20 years' imprisonment, life imprisonment or death
Điều 299.1– Bộ luật hình sự 2015– Tội khủng bố
Người nào nhằm gây ra tình trạng hoảng sợ trong công chúng mà xâm
phạm tính mạng của người khác hoặc phá hủy tài sản của cơ quan, tổ chức,
cá nhân, thì bị phạt tù từ 10 năm đến 20 năm, tù chung thân hoặc tử hình
b) Legal institution
— Including all legal norms that have the same features and regulate a
group of correlative social relations
Ex: The legal institution of inheritance, ownership, or marriage and family
c) Law branches
— Law branches are a system of legal norms which are classified into
legal institutions
— Vietnam has 12 law branches:
+ Constitutional Law
+ Marriage and Family Law
+ Administrative Law
+ Economic Law
+ Criminal Law
+ Land Law
+ Criminal Procedure Law
+ Financial Law
+ Civil Law
+ Banking Law
+ Civil Procedure Law
+Labour Law
3, Normative Legal Documents
— It is all legal documents that are promulgated by the state
— It is state law and also the only source of law that is recognized in Vietnam
— Divided into: law documents and subordinate law documents
II, Source of Law
1, Overall
—The Vietnamese legal system is fundamentally based on the Soviet
Union’s system of law but has also inherited characteristics of civil law
and common law system
— Since 1945, legislation is recognized as the sole source of law-
having jurisdiction that require regulation by the Government
— Since 1986 (Doi Moi), Vietnam has extent recognized customary law
and planned to appoach precedent
2, State Law
— State law is a system of rules of conduct, expressing the ruling class’s will
and the leadership of the Communist Party of Vietnam
— Law is issued and assured of implementation by being enforced with
the support of the power of the state (state coercion)
3, Customary law
— Customary law are system of behavior and conduct that have been formed
and have existed for a long time in history, passed down from
generation to generation, and are recognized and applied by the state as law
— In history, Vietnam has applied only written law (normative legal
documents) and disregarded customary law as an official legal source
—Vietnam is now has many important steps in recognizing customary law
For Examples: Article 7– Vietnam Law On Marriage And Family
Article 7.1. Application of marriage and family practices
For cases not prescribed by law or not agreed by involved parties, fine
practices which embody the identity of each nationality, are not contrary to
the principles prescribed in Article 2 and do not involve prohibited acts
prescribed in this Law may apply
4, Precedent
— Precedent is a form of state's recognition of judgments of judicial
agencies or administrative agencies, considering them as models, used as
law to resolve similar cases later.
— Precedent's characteristics are instability, many contradictions and
difficulty in explanation.
— However, as the state's legal system is inadequate to regulate social
relations, relying on actual judgments can facilitate the trial
Chapter: Human Rights and Ensuring Business

Freedom in Vietnam
I, Perspectives and policies of the Communist Party and the
Vietnamese Government on Human Rights
1, Vietnam’s legislature since 1945
— Perspectives and policies of the Communist Party and Vietnamese
Government on human rights has been stated in many legal documents:
— The Declaration of Independence on 2 September 1945: "All men are created
equal. They are endowed by their Creator with certain inalienable rights,
among these are Life, Liberty, and the pursuit of Happiness”
— Decree No. 40/SL dated 29/3/1946 on Protection of Personal Freedoms
— Law on Association, the Law on Ensuring Personal Rights to Physical
Inviability, and the the Rights to Inviolibility of Resident Places, Property
and Mail in 1957
— Reflected in other documents of the Communist Party and statutes of the
State Relevance International Convention: Constitution 1946, Constitution
1980, Constitution 1992, and now Constitution 2013
2, International Convention ratified
— The International Covenant on Civil and Political Rights
— The International Covenant on Economic, Social, and Cultural Rights
— The Convention on the Rights of the Child
— The Convention on the Elimination of All Forms of Racial
Discrimination and other Conventions
3, Under the Vietnam 2013 Constitution
— In previous periods, human rights was considered to be closely related to
capitalism and, sometimes, even viewed as an instrument of the western
capitalism to intervene in domestic issues of the socialist countries
— In the past and at present, the issue of human rights is occasionally cited
byWestern countries in opposing the renovation, development, and
integration of Vietnam
— Article 2.1 and 2.2 of the Constitution 2013: "The State of the Socialist
Republic of Vietnam is a State of the people, by the people, for the people. All
State power belongs to the people ..."
=> Not only emphasize the role of people in managing society and the State
but also define the purpose and nature of the State as a service to the people
=> The most two important articles of the Constitution 1992 and the
Constitution
2013 (Article 2 and 3) emphasized the role of people as central to the purpose
and nature of the Vietnamese State
— Article 14 of the 2013 Consitution: “In the Socialist Republic of

Vietnam, human rights and citizens’ rights in the political, civil,
economic, cultural and social fields shall be recognized, respected, protected
and guaranteed in accordance with the Constitution and law”
=> Officially uses the term of "human rights"
=> Provides the overall protection of human rights: in all respects political,
civil, economic, cultural and social-are respected, find their expression in
the rights of citizens, and are provided for by the Constitution and the law
— Article 14 of the 2013 Consitution: “In the Socialist Republic of Vietnam,
human rights and citizens’ rights in the political, civil, economic, cultural
and social fields shall be recognized, respected, protected and guaranteed in
accordance with the Constitution and law”
=> It reflects the perspective of the Vietnamese Government in terms of
respecting and protecting human rights in five areas set out under the
International Covenants, namely civil, political, economic, social, and
cultural
=> This provision is evidence of important changes in the perspective and
understanding of human rights in comparison to previous periods
— In comparison with the Constitution 1959 and the Constitution 1980:
=> The Constitution 1992 and the Constitution 2013 represent a turning
point in codifying human rights set out under international instruments
=> It is because it emphasizes the respect of human rights under the
Constitution 1992 and it largely expands the scope of citizen's rights in
the Constitution 2013
— In conclusion:
+ the Vietnamese Government has continuously supplemented and
amended its rules to align with international norms and standards on
human rights and socio-economic changes.
=> Vietnamese law and regulations are now largely in compliance with
the international standards on human rights
=> The protection of these rights are even more advanced in comparison
with international customary law and domestic law of other countries
II,Perspectives of the Communist Party and the Vietnamese State
on citizen’s to business freedom
1, Before the 1986 Renovation (Doi Moi)
— During decades of the centrally-planned economy, when the needs of the
market economy were ignored, the rights to business freedoms were absent in
the Vietnamese legal system
— At times, the Communist Party and the State considered business freedoms
to be a threat to socialism which should be strictly prohibited
2, The 1986 Renovation (Doi Moi)
— The 1986 Renovation witnessed the changes in business freedoms and
market economy, providing a positive environment for development
— The Communist Party and the State's new endorsement of business
freedoms are reflected in the following areas:
— Pursues policies that encourage the development of a multi sector
commodity economy, under the market mechanism, with state management
of socialist-orientation
— Recognizes many forms of ownership for manufacturing materials and
ensures private ownership
— Pursue policies on improving and strengthening mechanisms of the
market economy and give positive encouragement to competition between
various economic sectors based on the principle of equality, step-by-step,
eliminated preferential treatments towards state-owned enterprises
— Guidelines and policies of the Communist Party on developing a multi-
commodity economy under the market mechanism were reflected initially
and importantly in the Constitution 1992, which is the first Constitution of
the Renovation period
— Various legal documents prescribing, protecting, and expanding
business freedoms of citizens have been introduced
=> Created favourable conditions for the development of various economic
sectors and for ensuring business freedoms in Vietnam.
=> This helps improve the lives of citizens, foster socio-economic
development, and change the capital structure of the economy
— In conclusion,
— The Party and the State, through its new policies, promotes and
expands the business freedoms of citizens and supports the development of
a multi-commodity economy under the market mechanism with the state
management of socialist-orientation
— The Renovation has caused great changes to the country that have
noticeably improved the lives of the Vietnamese people
— Human rights and basic rights of citizens, including business
freedoms and legitimate rights to enrichment, are prescribed and ensured
III. The right to freedom in business of citizens in the Vietnamese

legal system since renovation period
— Since the implementation of renovation, there have been many legal acts
promulgated to record and guarantee the right of business freedom for
citizens:
— In 1987, The National Assembly (NA) passed the Foreign Investment
Law in Vietnam - the first act that permitted foreign capitalist investors to
make business investments in Vietnam
— The 1990 Company Law
— The 1990 Private Enterprise Law
=> Targeted to 'implement the guideline to develop the multi-sector market-
based economy, to encourage business investment, to protect legal interest of
owners of private enterprises, and to improve the validity of state management
to business activities'
— The 1992 Constitution clearly established citizens' right to business
freedom in Section 57. This was a right which had not been stipulated in
the three previous Vietnamese constitutions
=> It marked the first time that business freedom became a constitutional
right in Vietnam
— The National Assembly of Vietnam has issued a series of acts to develop
a market-based multi-sector economy and ensure the right to business
freedom of citizens:
+ The 1995 Civil Code, the 1997 Commercial Law, and the 1994 Law on
Encouragement of Domestic Investment
+ The Enterprises Law 2014, the Investment Law 2014, the Law on
Commerce 2005, and the Civil Code 2015 are the most important statutes
which express and ensure the right to business freedom for citizens
In conclusion,
— The right to business freedom of citizens became a constitutional right
with the 1992 Constitution and now in the Constitution 2103
— The National Assembly has issued many acts relating to the right to
business freedom of citizens in order to support and enforce these rights
IV,Achievements of guarantee policy of the right to business in
Vietnam
— Before the August Revolution, Vietnamese people in general had little
freedom, were suppressed, were without human basic rights, and were
exploited by French colonialism
— Since our country's independence, human rights and citizenship rights
have been enumerated in Vietnam's constitutions and protected by the state
— However, before the 1986 Doi Moi, the right to business freedom was not
recognized in Vietnam and the private economy sector struggled
— Since the Doi Moi in 1986, the right to business freedom has been granted,
guaranteed, and enlarged as the Communist Party and State plan to build
up and develop the multi-sector market-based economy with the state's
management
— A series of the Communist Party's documents, such as national meetings
minutes, resolutions, laws, regulations, and policy papers, all demonstrate
the commitment of the Party to freedom in business
V, Current impediments in ensuring business freedom
— During the 20 years of the Reform period, the State has made great strides
in assuring that business freedom of citizens and entrepreneurs are
protected
— However, there still exist hindrances and limitations in ensuring
business freedom of Vietnamese citizens and entrepreneurs:
1, Administrative producer
- The procedure are complicated and sometimes incomprehensible
administrative procedures in many domains of state administration which
hinders the business freedom of citizens and entrepreneurs
- Those include formalities relating to tax declaration, tax payment, and tax
refunds; formalities relating to importing and exporting in the customs
sector; formalities in land allocation and real estate investment projects
=> Complicated administrative formalities cause a massive waste of time,
effort, and money, present opportunities for corruption, and hamper economic
development
2, Business sectors and sub-license
— Vietnam categorize so many businesses into prohibited or conditioned
business groups hinders business freedom of citizens
— Although the Government has put in a great deal of effort in reviewing
and reducing unnecessary sub-licenses, some conditioned businesses and
fo1ms of controlling business conditions need to be reviewed
3, Corruption
— Corruption and bureaucracy hinder entrepreneurs' business freedom.
Bureaucratic ineffectiveness leads to squandered business opportunities,
decreased production capacity, and weakened social resources
— Bureaucracy interferes with business activities and incentivizes black
markets. This causes unfair competition among entrepreneurs and harms
the overall business environment
4, The judicial system
— The judicial system is seen as inefficient, and its millings seen as
arbitrary
— Judicial activities of the court are not really independent, and the lack of
court efficiency consistently disappoints litigants
— The weaknesses of procedural agencies have affected the confidence of the
business world to utilize the country's judicial system, which undermines
citizens' freedom of business
5, The quality of legislation
— Many regulations are issued that lack transparency, clarity, feasibility,
and reasonableness
— Reports have shown many limitations and inadequacies in these 16
major laws on investment and business in Vietnam. These limitations and
shortcomings hinder the business freedom of citizens and enterprises
VI, Some suggestions to ensure business freedom in Vietnam
— The state is obliged to create a favorable legal environment for individuals
to exercise their freedom:
+ The state rather protect citizens' right to free enterprise and provide citizens
with the power to take legal action against those who infringe on those rights
instead of interfere with free enterprise
+ The law must not impede business freedom, and therefore and legal
documents that are contrary to the principles of free enterprise must be
revised or revoked
— The key missions of the Government is to continue to refom
administrative procedures in order to improve the investment and business
environment, ensure the implementation of business freedom
— Reevaluating policies on forbidden, limited, or conditioned lines of
business sectors (or investment domains)
— Promoting judicial reform plays an important role
— Improving the quality of staff and employees in terms of their political,
moral, and skills capacity; and to dismiss those who do not complete their
tasks, violate the people's trust, or fall into public disrepute
— Continuously reassess the reasonability, explicitness, and feasibility of
existing legal provisions relating to investment and business activities
Chapter: The Civil Law
I, Introduction - Brief history and development
1, Introduction
Civil law is an independent Law branch in the Vietnamese legal system
which includes legal norms regulated property relations of a commodity-
monetary nature, and personal relations on the basis of equality and
independence 2005 – 2015: Civil code
2, Brief history and development 2015 was adopted with
1945 – 1995: The Civil Code 1995 many significant change
was adopted
Prior to 1945: three 1995 – 2005: The society change Civil

different legal systems code 2005 was adopted
— Prior to 1945: Vietnam was part of the French colonial empire in
Southeast, Asia. During the colonial period, Vietnam was divided into
three regions: Tonkin (North Vietnam), Annam (Central Vietnam),
and Cochinchina (South Vietnam) with three different legal system
— 1945 – 1995: Vietnam has many changes in the economy: ratified
many international conventions, underwent Doi Moi, adopted a new
constitution, and brought about undeniable economic improvement
=> Many new types of business transactions that needed to be addressed
and regulated by law
=> The Civil Code 1995 was adopted in October 28, 1995 and went into
effect in July 1, 1996
— 2005 – 2015:
+ As Vietnam has signed on too many significant multilateral and
bilateral Free Trade Agreements, Vietnam has had to change its domestic
laws in order to meet the requirements of these agreements
+ The Civil Code 2015 was enacted in November 2015 to replace the Civil
Code 2005
+ One of the most significant changes in the new code is that it has removed
sections concerning intellectual property rights and transfer of land use
rights
II, Contents
— The Civil Code 2015 has a total of:
+ 689 articles
+ 7 chapters
+ Divided into six parts: general provisions; ownership and other property
rights; obligations and contracts; inheritance; civil relations involving
foreign elements; and implementation provisions
1, Individuals
— The requirements of civil legal capacity are defined in order to ensure the
validity of civil transactions
— Civil legal capacity of individuals is one of the conditions for the validity
of a civil transaction
— Article 20, 21 – The civil code 2015: persons who are eighteen or more years
of age shall have full capacity for civil actions, unless some circumstances
apply
— Who have problem in mental

— Who have trouble in discerning and controlling their behaviors
— Individuals' rights are divided into two different groups:
+ Personal rights: sex reassignment surgery, right to marry, right to divorce
+ Property rights: rights that can be monetarily valued, and consist of
ownership rights, intellectual property rights, land use rights, and other
rights with respect to property
2, Legal entities
— The Civil Code 2015 has no definition on legal entities
— Requirements that an organization must meet in order to be recognized
as a legal entity:
(1) The organization was legally established
(2) The organization has an operational structure
(3) The organization has property independent from other individuals
and organizations, and it fulfills voluntarily obligations by recourse to
such property
— Requirements that an organization must meet in order to be recognized
as a legal entity:
(4) That organization participates independently in legal relations in its
own name. When taking part in civil transactions, the organization must
operate independently from its founders, regardless of whether the founders
are individuals or organizations
3, Ownership institution
— Ownership rights comprise the rights of owners to possess, use, and
dispose of their property in accordance with law
— The owner shall be entitled to conduct all acts permitted by an owner with
respect to property, but may not cause damage to or adversely impact the
interests of the State, the public interest, or the lawful rights and interests of
others
— The owner must bear the loss in relation to property that is destroyed or
damaged as a result of an event of force majeure, unless otherwise agreed or
provided by law
— Subject of the ownership right: owner of the property
— Object of the ownership right: property over which the right is exercised,
including:
+ Money
+ Valuable papers: stocks, bonds, bills of exchange, promissory notes,
deposit certificates, checks, and other papers that are specified by law, can be
monetized, and are allowed to be transferred
+ Real property: including movables and immovables which can be
presently tangible or property that will be formed in future
— Transfer of ownership rights:
+ Identify the point in time in which owner of a property terminates his/her
ownership
+ Identify the point in time in which new owner has started their rights of
possess, use, and dispose of the property
4, Obligations and Contracts
a) Civil obligations
— Civil obligations mean acts whereby one or more subjects (parties having
obligations) must transfer items/properties, rights, money, or valuable
papers, or perform acts or refrain from performing certain acts in the
interests of one or more other subjects (parties having rights)
— Fundamental types of civil obligations:
+ Performance of obligations to deliver objects/items
+ Performance of obligations to pay money
+ Performance of obligations through third parties
— The point in time when civil obligations are terminated:

+ When the obligation is fulfilled
+ The obligor being an individual dies
+ The obligor being a legal entity or other subject is wound up
+ The obligee waives performance of the obligation,…
2, Contracts
— Definition: Civil contract is an agreement between parties in relation to the
establishment, modification, or termination of civil rights and obligations
— Subject of the civil contract:
+ Individuals with full legal capacity
+ Legal entities that adapt all the requirements regulated by law
— Form of signing legal contract:
+ Oral contract
+ Written contract
+ Written contracts with authentication: some contracts require
authentication by a notary public or certification by a competent state agency
— Content of the civil contract: are provisions in a contract that determine
the following basic contents: the object of the contract, quantity, type,
specifications, qualities, rights and obligations of the parties, and
responsibilities due to breach of contract, dispute resolution clause...
— Civil liability due to breach of contract is the responsibility of the party
violating the contract to the violated party
5, Liability of compensation for non-
contractual damages
— Liability for compensation for non-
contractual damages is the
responsibility of a person who commits
an illegal act, causing damage to an
individual or organization and must
compensate for that damage
— Damage include material damage
and spiritual damage
— The liability to compensate for extra-contractual damage shall arise only

when all the following elements appear:
+ There must be illegal acts committed
+ There must be damage caused: include material damage and spiritual
damage
+ There must be a cause-and-effect link between the damage caused and the
illegal acts
+ The damage must be the fault, intentional or unintentional, of the
perpetrators.
— The person causing the damage must compensate fully and promptly.
The parties can agree on the level of compensation, form of compensation (in
money, by performing a job or any other form), compensation method (one-
time compensation or divided payments...)
— The person who causes the damage may have the compensation amount
reduced if the damage is caused by an unintentional fault and the value of
the damage is too large compared to his or her immediate and long-term
economic capabilities
— When the compensation is not suitable with the reality, the person who
suffered damage or the person causing the damage has the right to request
the Court or a competent state agency to change the compensation level
6, Inheritance
— Inheritance is the transfer of a deceased person's assets to another person
according to the will or according to the order prescribed by law
— The time of commencement of an inheritance shall be the time when the
deceased dies (Article 611, The Civil Code)
— The heir can be an individual or organization
— If an heir is an individual:
+ Such person must be alive at the time of commencement of the inheritance
+ Such person also be born and alive after the commencement of
inheritance, but he/she must have been conceived prior the time when the
deceased died
— If an heir is an entity or organization, it must be existence at the time of
commencement of the inheritance
- The heir may inherit from the estate under a will or in accordance with law
=> A child that lives 24 hours
and more after birth (must have
been conceived prior the time
when the deceased died)
— Disclaim an inheritance:
+ An heir may disclaim an inheritance unless such disclaimer is for the
purpose of avoiding the performance of its property obligations to other
persons
+ A disclaimer must be made in writing
— Persons are not entitled to inherit: Article 612 of the 2015 Civil Code:
— Inheritance includes:
+ Inheritance under wills
+ Inheritance at law
a) Inheritance under wills

— Inheritance under wills: is the transfer of a deceased's inheritance to other
persons in accordance with their desire stated in the will when they are alive
— Forms of a will:
+ Written will: unwitnessed written wills, witnessed written wills, written
wills which are notarized; and written wills which are certified
+ Oral will
— Conditions for a will to be lawful:
+ The testator was of sound mind when he/she made the will
+ He/she was not deceived, threatened, or coerced into making the will against
their wishes
b) Inheritance at law
— Inheritance at law is applied when:
+ There is no will, the will is unlawful
+ When all heirs under the will died prior to or at the same time at the
testator dying
+ The bodies or organization which are entitled to inherit under the will no
longer exist at the time of commencement of the inheritance
+Or the persons appointed as heirs under the will do not have the right to
inherit or disclaimed the right to inherit
— Heirs at law: Under the Civil Code, heirs-at-law are classified in 3
separate ranks of inheritance
+ First rank: wife, husband, parents (biological, adoptive), and children
(biological, adoptive) of the decedent
+ Second rank: grandparents, natural siblings; and grandchildren
+ Third rank: great-grandparents; uncles and aunts by blood of the
decedent; nephews and nieces of whom the decedent is an uncle or aunt by
blood; and great grandchildren
— Heirs belonging to the same rank of inheritance are entitled to equal
portions in the estate
— Heirs belonging to the subsequent rank of inheritance are entitled to
inheritance only if none of the heirs of the preceding rank are left as they
have died, are not entitled to the estate, or are disinherited or disclaim the
estate
— Succeeding heirs:
+ In case a child of a testator died prior to or at the same time as the testator,
the grandchildren of the testator shall inherit that part of the estate
+ In case the grandchildren also died prior to or at the same time at the
testator, the great-grandchildren of the testator shall inherit that part
+ Succeeding inheritance only applies to inheritance at law, not to
inheritance under wills
— Heirs notwithstanding contents of wills:
+ In order to protect the rights of children (who are minors), father, mother,
wife, or husband of the testator, along with offspring who are adults but are
incapable of working
+ If the testator does not grant to such individuals any inheritance, or
grants them inheritance that is less than two-thirds of the share that person
would have received
=> such person shall be entitled to a share of the estate equivalent to two-
thirds of the share
Chapter: The Criminal Law
I, Introduction
Definition
— Criminal law is a body of rules and statutes that defines conduct prohibited
by the government because it threatens or harms public safety and welfare
— Criminal law establishes punishment to be imposed for the commission of
such conduct
II, Brief history and development

— Since the establishment of the Democratic Republic of Vietnam to its re-
unification (1945 - 1975)
— From Re-unification to the first Criminal Code (1975 - 1985)
— Since the first Criminal Code to the second Criminal Code (1985-1999)
— Since the second Criminal Code to the third Criminal Code (1999 - 2015)
— The current Criminal Code 2015
III, Jurisdiction
1, Territorial Jurisdiction
— State is a supreme authority with absolute and exclusive power over all
offenses committed within its territorial boundaries
— Vietnam establishes territorial jurisdiction against offenders of all
nationalities and stateless persons, except persons who are entitled to
diplomatic or consular privileges and immunities
— Vietnam officially sets forth its territorial jurisdiction over offences
committed on board ships and aircrafts having Vietnamese nationality
2, Extraterrestrial Jurisdiction
— Vietnam asserts the right to enforce its criminal law against its nationals
even when they have committed offenses in foreign countries (the principle of
nationality)
— The establishment of Vietnamese jurisdiction on the ground of nationality
under the Criminal Code 2015 is optional
— Article 6(1) of the Criminal Code 2015 expressly stipulates that
'Vietnamese citizens who have committed offenses outside the territory of
Vietnam may be subjected to criminal liability in Vietnam in conformity
with this Code'
IV, Crimes and Element of crimes

1, Elements of crimes
— The elements of a crime are a series of components which must be present
in order to establish that someone is guilty of a crime
— Elements of every crime are categorized into four groups, namely: object,
subject, physical elements and mental elements
a) Object of a crime
— The object of a particular crime demonstrates specific interests protected
under criminal law that such a crime threatens or causes harms to
— Objects of a crime are generally used to categorized crimes into different
Chapters
— For example:
+ A crime of murder => objects: the life of one or more persons
+ A crime of robbery => objects: the property ownership
+ Ex: human bodies, graves or remains
b) Subject of a crime
— Reflect features of a criminal offender who commits that crime
— The offender can be an individual or legal entity
— The subject of all crime, who is a natural person, generally include some
components: the required age, criminal liability capacity, additional
elements
— The required age:
+ The age of criminal responsibility in Vietnam is set at 14
+ Persons under 14 are not subject to criminal liability, but that person
may be subjected to administrative sanctions
— Persons aged 14 and above but under 16 are criminally liable for murder,
intentional cause injury or harms to the other, rape, sexual assault of person
aged from 13 to under 16, robbery, kidnapping and certain types of serious
crimes intentionally committed, or particularly serious crimes intentionally
committed
— Persons aged 16 and above must bear criminal liability for all types of
crime they committed
— Criminal liability capacity:

+ Every person who reaches the required age is considered to possess
criminal liability capacity unless proved to be in a state of having no
criminal liability capacity
+ Article 21 of the Criminal Code 2015: persons who commit acts
dangerous to society while suffering from mental disease or other disease
which deprives them of their capability to be aware of or to control their acts
shall not bear criminal liability
— Additional element:
+ The subject elements of certain crimes require additional element
+ For example, the crime of embezzling property can only be committed by
State officials or officials of social or political organization (Article 354 of
the Criminal Code 2015)
c) Physical elements
— Physical element is a wrongful act committed by the criminal
— There shall be no crime without law (“Vô luật bất hình”)
— A failure to act may constitute a criminal act if there is a duty to act
— The criminal act may require only a single act or a series of acts:
+ Single act: the crime of murder
+ Series of acts: the crime of kidnapping in order to appropriate property
requires two acts: (1) kidnapping another person as a hostage, and (2)
intimidating the property holder into transferring property by threatening
to use force against the kidnapped person
— Physical elements of certain crimes only require a criminal act

— Other crimes require not only a criminal act, but also harm and causation
that establishes the relationship between criminal act and the actual harm
— Crimes only require a criminal act:
+ He/she can bear a criminal liability when commit a prohibited conduct
+ The actual harm is not required
+ For examples: the crimes of murder
— Crimes require criminal act and actual harm (resulted crimes)
+ His or her actions must have caused the harm to the victim
+ This harm has a close relationship with the criminal act, caused by the
criminal act (causation principle)
d) Mental elements
— An act must be accompanied by a guilty mind to create criminal liability
— Mental elements include guilty mind, purpose, and motives
— Guilty mind:
+ Criminal intention must be formed before the act, and it must unite with
the act
+ Including intentional and unintentional (Article 10, 11 Criminal Code)
— Intentional guilty mind:
— Unintentional guilty mind:
— Purpose:
+ An act is purposeful when a person holds a conscious objective to cause a
particular result
+ For example: the purpose of snatch is to appropriate property, the purpose of
the crime of murder is to make a person dead
— Motives:
+ Motives are the causes or reasons that induce a person to commit a crime
+ Proof of a motive is generally not required for the conviction of a crime
+ For examples: jealousy in love may be a motive for murder, sudden
financial difficulty may be a motive for embezzlement or theft
2, Types of Crimes
— Less serious: the maximum sentence defined by the Criminal Code is a
fine, community sentence (non-custodial) or 3 years' imprisonment
— Serious: the maximum sentence of the bracket defined by the Criminal
Code is from over 3 years' to 7 years' imprisonment
— Very serious: the maximum sentence of the bracket defined by the
Criminal Code is from over 7 years' to 15 years' imprisonment
— Particularly serious: the maximum sentence of the bracket defined by the
Criminal Code is from over 15 years' to 20 years' imprisonment, life
imprisonment or death
— Types of crime is based on the
maximum sentence defined by
the Criminal Code
— The classification of type of
crime is based on the maximum
level of punishment prescribed in
each block
V, Penalties
— Under the Constitution of Vietnam, everyone is presumed innocent until
the person has been proven guilty (Article 31 the Criminal Law 2013):
+ A person will only be treated as guilty of an offence if he or she is convicted

by the court
+ The convicted person can be subjected to a number of judicial measures and
will carry a criminal record
+ Purpose of penalties: Retribution, education, rehabilitation, deterrence
1, Type of penalties
— Penalties applicable to convicted offenders are classified into two categories:
principal penalties and additional penalties
— Each crime is subjected to only one principal penalty but may be subjected
to various additional penalties
— Stated from Article 30 – Article 45 of the Criminal Code
a) Principle penalties
— Warning: applies to offenders of less serious crimes involving
extenuating circumstances (stated in Article 34 of the Criminal Code 2015)
— Fine: applied as a principal penalty to offenders of less serious crimes
against economic order, public order, administrative order,… The fine level
depends on the nature and seriousness of the crimes committed, the
property situation of the offenders
— Non-custodial reform:
+ Applied to persons committing less serious crimes or serious crimes
+ Term: from a minimum of six months to a maximum of five years
+ If a sentenced person has been held in custody and/or in detention, the
time spent in custody and/or detention must be subtracted from the total
period of their non-custodial reform with one day of custody and/or detention
being equal to three days of non-custodial reform
— Termed imprisonment:
+ Involves incarceration of the convicted offender in a prison for a fixed
period of time
+ Term: range from a minimum of three months to a maximum of twenty
years
+ If there are more than one crime have been committed: the court first
decides penalties for each crime, then those penalties are added together but
must not exceed the maximum term of thirty years
- Termed imprisonment:
+ If the convicted person was kept in custody and/or in detention prior to
sentencing, that person is entitled to have such time subtracted from
duration of the term of imprisonment penalty: one day of custody and/or
detention is equal to one day of imprisonment
+ The period of imprisonment may be subsequently reduced if prisoners
made progress while serving the sentence but must serve at least half of the
declared sentence
— Life imprisonment (indefinite imprisonment):

+ Applies only to persons committing particularly serious crimes
+ Not applicable to juvenile offenders
— Death penalty:
+ Only applicable to persons committing particularly serious crimes
+ May not be apply to:
(i) Juvenile offenders
(ii) Pregnant women, women nursing children under the age of 36
months
(iii) Person over 75 years of age at the time the crime was committed or at
the time of trial
=> (ii) and (iii): the death penalty is converted into life imprisonment
— Death penalty:
Persons who were sentenced to death for corruption and embezzlement
crimes but later returned three quarters of illicit proceeds, and actively co-
operated with enforcement bodies in investigating and handling crimes or
achieved great feast, are also entitled to exemption from the execution of
death penalty
=> The death penalty is converted into life imprisonment
b) Additional penalties
— Ban from holding certain posts, ban from practicing certain occupations
or doing certain jobs
— Ban from residence
— Probation
— Deprivation of certain citizen 's rights
— Confiscation of property
2, Principle of sentencing
a) Rule of law principle
— No person may be prosecuted for an act that is not punishable by law
— No person may be sentenced to a penalty that is not prescribed by law
— While deciding penalties to be imposed upon the convicted, the courts
must strictly obey mies on conditions and limitations of each type of
penalty which is analyzed above
b) Proportionality Principle
— In order to prevent the imposition of unduly lenient or unduly harsh
sentences
— There must be a "fit" sentence proportionate to the seriousness of the offense
c) Fairness Principle
— Similar circumstances – similar offenders => similar sentence imposed
on the convicted throughout the country
— The fairness principle prohibits distinction of any kind, such as race,
colour, sex, language, religion, political,…
d) Humanity principle
— The humanity principle requires that the courts use the least intensive
and least severe sanction if possible
— While practising the discretion of sentencing, the courts must take into
account factors relating to personal circumstances of the convicted,
including criminal records and other factors such as homelessness, family
circumstances, educational needs and so on
3, Principle to juveniles under 18
— Stated from Article 98 – 101 of the Criminal Code
— A juvenile offender shall face one of the following punishments for each
criminal offence committed:
+ Warning
+ Fine: Not applied to children under 16
+ Community sentence
+ Imprisonment
— Imprisonment:
+ If the punishment for a crime is life imprisonment or death sentence as
prescribed by law, the heaviest sentence imposed upon an offender aged
from 16 to under 18 shall not exceed 18 years
+ If the punishment for a crime is determinate imprisonment, the heaviest
sentence imposed upon an offender aged from 16 to under 18 shall not
exceed three quarters of the duration prescribed by law
— Imprisonment:
+ If the punishment for a crime is life imprisonment or death sentence as
prescribed by law, the heaviest sentence imposed upon an offender aged from
14 to under 16 shall not exceed 12 years
+ If the punishment for a crime is determinate imprisonment, the heaviest
sentence imposed upon an offender aged from 16 to under 18 shall not
exceed one half of the duration prescribed by law
VI, Penalties to legal person
— The Criminal Code 2015 prescribes criminal liability of legal persons
— Only commercial legal persons involved in wrongful conduct is subjected
to criminal liability (Article 2.2 of the Criminal Code)
— Penalties for legal persons include:
a) Principle penalties:
+ Fine
+ Termed suspension
+ Permanent suspension
b) Additional penalties:
+ Fine
+ Prohibition on conducting business or operation in certain areas
+ Prohibition on raising capital
Chapter: Law on Business Organization

I, Introduction
Definition
— Business organizations in Vietnam are governed by a system of
legislation including laws enacted by the National Assembly and
subordinate legislation
— The legal system that regulates business entities in Vietnam includes
the Enterprise Law 2014 and a number of relevant laws which govern the
establishment and operation of business organizations in specific areas
1, Prior to Doi Moi
2, Since Doi Moi
III, Household business

— Household business is owned by either a Vietnamese citizen, a family
(household), or a group of Vietnamese citizens
— A foreigner or foreign family appears not to have a right to register a
household business in Vietnam
— Household business can only register a business at one location, and
cannot hire more than 10 employees
— The owners of this business entity are exposed to an unlimited liability
for the debts of the business
— A household business is not a separate legal entity
IV, Private enterprise
— Owner:
+ Vietnamese individual from 18-year-olds and above
+ An individual can only register one private enterprise but establishes
many branches in Vietnam
+ Must be liable for all debts of the enterprise with his/her own property
+ Has full powers to manage and direct the enterprise
+ Can also be the CEO of enterprise
— A private enterprise is not recognized as a legal person
— The private enterprise has no right to issue any kind of shares or bonds to
the public
V, Limited liability company with two or more members

— Under the Enterprise law, a multiple member LLC is:
+ A separate legal entity
+ Has no more than 50 members whose liability is limited to the amount
they undertake to contribute to the company's charter capital
+ Has no right to issue shares to the public
+ A member shall be liable for the debts and other property obligations of
the LLC within the amount of capital that he/she has undertaken to
contribute to the company chatter capital
— A member of an LLC has the right to assign shares of capital contribution
to other persons:
+ The member must offer to sell it to all other members in proportion to their
shares of capital contribution in the company on the same conditions first
+ Assignment to non members shall be under the regulation of Enterprise
law
— The organizational and management structure of LLC with two or more
members:
+ Member’s Council
+ Chairperson of the Member’s Council
+ Director/general director (similar to CEO)
+ Board of Supervisors: must have if the LLC has more than 11 members
+ Legal representative: may have one or more legal representative as long as
at least one legal representative of the company must have a permanent
residence in Vietnam
VI, Single - member limited liability company
— Under the Enterprise law, a one member LLC is:
+ Owned by one organization or individual
+ The company owner shall be liable for all debts and other obligations of
the company up to the amount of the charter capital of the company
+ The property of the company is separate from its owner
+ Has no right to issue shares
— The organizational am/ management structure of one member LLC:
+ Owner being an organization: Members' Council, CEO and Supervisors
+ Owner being an individual: the company's President, CEO and
Supervisors
VII, Shareholding company
— Under the Enterprise law, a shareholding company is:
+ The share capital is divided into equal parts as shares
+ Must have at least three shareholders whose liability is limited to the
amount contributed to the company's share capital
+ Has a right to issue securities to the public for fundraising capital
— A shareholder:
+ Either a legal person or an individual who holds one or more shares of the
company
+ Either Vietnamese or a foreign individual and organization
+ Be liable for debts and other liabilities of the company within the amount
of capital that they contributed
+ Be free to transfer their shares (unless otherwise stipulated in the
Enterprise Law)
— The organizational and management structure of a shareholding
company: Shareholding companies may select either of two models
prescribed by the Law:
+ The first model: Shareholders' Meeting (SM), the Board of Management
(BOM), and the director/general director (the CEO), and Board of
Supervisors (BOS) if it has more than eleven shareholders or has
institutional shareholders holding more than 50% of the shares
+ The second model: Shareholders' Meeting (SM), the Board of Management
(BOM), and the director/general director (the CEO)
VIII, Partnership
— Under the Enterprise law, a shareholding company is:
+ A legal person
+ No less than two general partners who are joint owners of the company
and carry out business under one common name
+ In addition to general partners, there may also be one or more limited
partners
+ General partner must be an individual and liable to all obligations and
debts of the partnership with his/her entire property
+ Limited partners are liable for the debts of the partnership only to the extent
of their capital contributed to the partnership
— Restriction on general partner:
+ Cannot be a sole proprietor or a general partner of another partnership
+ Not entitled to transfer a part or whole of his capital contribution to others
+ Other restriction under the Enterprise Law
— Structure of partnership: Members' Council, Chairperson of the Council,
and the CEO
Chapter: Commercial Law

I, Introduction
III, Overview of traders and commercial activities
— According to A1ticle 6 of the Commercial Law, traders are:
+ Lawfully established economic organizations and individuals
+ Conduct commercial activities in an independent and regular manner
and that have been registered as business entities
— Characteristic of traders:
+ Traders can be either individuals or organizations
+ Traders must carry out commercial activities independently in a separate
business entity, such commercial activities must be the main businesses
that generate the main source of income for such traders
+ Traders must register under business registration regulations
+ Foreign traders can carry out commercial activities in Vietnam through
representative office, a branch of a foreign company, or a foreign invested
enterprise (Representative office and branch constitutes are not independent
legal entity)
IV, Commercial activities
1, Sale of goods
— Normal/direct sale of goods
contract:
+ A contract of sale is a contract
whereby the seller transfers or agrees
to transfer ownership of goods to the
buyer for a price
+ Governed law: Civil Code,
Commercial Law, …
— Sale of goods via commodity exchange
2, Provision of services
a) Logistics services
— Logistics services are commercial activities whereby traders organize the
performance of one or more of the following:
+ Reception, transportation
+ Warehousing, cargo storage
+ Completion of customs procedures and other formalities and paperwork,
customer consultancy,
+ Packaging services, delivery of goods, or other services related to goods
that are compensated by service fees
b) Goods transit services

— Goods transit services are commercial activities that traders carry out the
transit of goods owned by foreign organizations or individual through
Vietnamese territory for remunerations
— Governed by Commercial law, Decree 187/2013/ND-CP,…
c) Commercial assessment services
— Activities whereby a trader carries out all necessary steps to verify the
actual status of goods or services or any other matters as requested by clients
— Assessment services may be requested in following aspects of goods or
services: quantity, quality, packaging, value of goods, origin of goods,
losses, and other matters requested by the clients
— Governed by Commercial law, Nghị định 20/2006/ND-CP,…
3, Commercial intermediary activities
a) Representation of traders
— Under the Commercial law, representation of traders means a
commercial activity whereby a trader (referred to as the representative) is
authorized by another trader (referred to as the principal) to conduct
commercial activities in the name and under the instructions of the
principal for remuneration
b) Commercial brokerage
— Under the Commercial law, Commercial brokerage are commercial
activity whereby a party acts as a broker between two parties wanting to sell
or purchase goods or provide commercial services (referred to as the
principals) to negotiate and enter into sale and purchase contracts or
contracts for provision of services
c) Sale and purchase of goods by mandated dealers
— Under the Commercial law, Sale and purchase of goods by mandated
dealers is commercial activity whereby a trader (referred to as an assignee)
sells or purchases goods in his own name under the terms agreed upon with
another party (the mandator), for remuneration
d) Commercial agency
— Commercial agency means a commercial activity whereby the agent, in
its own name, sells or purchases goods for the principal or provides services
of the principal to customers for remuneration.
— The agency contract is one in which the principal authorizes the agent to
distribute or purchase goods for the principal or to provide services of the
principal to customers
4, Commercial promotion activities
a) Sales promotion
— Sales promotion is a commercial promotion activity by which traders
promote the purchase and sale of goods or the provision of services by providing
certain benefits to customers
— Sale promotion can be conducted in one of the following forms:
+ Giving samples of goods or providing samples of services free of charge for
trial use
+ Presenting goods as gifts or providing free-of-charge services
+ Selling goods or providing services at prices lower than sale prices service
charge rates previously applied during the period of sale promotion already
registered or announced
b) Commercial advertising
— Commercial advertising is a commercial promotion activity conducted by
traders and aimed at introducing to customers their goods and services
activities
— Commercial advertising must in accordance with the Commercial Law:
The language used in commercial advertising must be Vietnamese (unless
some circumstances under the law),…
c) Display and introduction of goods and services
— Display and introduction of goods and services mean commercial
promotion activities carried out by traders by which goods and/or services
and documents thereon are used to introduce such goods and/or services to
customers
d) Trade fairs and exhibitions
— Trade fair and exhibitions mean commercial promotion activities
conducted in a concentrated manner at particular locations and for a given
periods of time by which traders display and introduce their goods and/or
services for the purpose of promoting them and seeking opportunities for
entering into contracts for sale and purchase of goods and provision of
services
e) Other commercial activities
• Auction of goods
— Auction of goods means a commercial activity whereby sellers by
themselves conduct public sale of goods or hire auction organizers to do so
in order to select the purchaser that offers the highest price
— Auction of goods shall be performed by either of the following two modes:
+ Upward bidding mode, which is an auctioning mode whereby the
person who offers the highest prices as compared with the reserve price shall
have the rights to purchase the auctioned goods
+ Downward bidding mode, which is an auctioning mode whereby the
person who first accepts the reserve price shall have the right to purchase the
auctioned goods
• Bidding for goods or services
— Bidding for goods or services is a commercial activity whereby a party
purchases goods or services through bidding (referred to as bid solicitor)
in order to select, among traders participating in the bidding (referred to
as bidders), a trader that satisfies the requirements set forth by the bid
solicitor and is selected to enter into and perform a contract (referred to as
bid winner)
• Commercial processing
— Commercial processing is a commercial activity whereby a processor uses
part or whole of raw materials and materials supplied by the processee to
perform one or several stages of the production process at the latter request
for the purpose of receiving remuneration
• Lease of goods
— Lease of goods means commercial activity whereby one party (the lessor)
transfers the rights to possess and use goods to another party (the lessee) for
a certain period of time for rental fees
• Commercial franchise
— Franchise is a commercial arrangement under which a party (the
franchisor) grants another party (the franchisee) the right to carry out the
business of selling its goods or supplying its services under the conditions:
(i)The franchisee may cany out the business under a format determined by
the franchisor, affix the trademarks, trade names, business logos, slogans,
and advertisements of the franchisor
(ii) The franchisor has the right to control and assist the franchisee to carry
out the franchised business
V, Breach of commercial contracts

— A party failure to perform or fulfill its obligation as stipulated in the
contract between the involved parties or as provided for by the provisions of
law
— Under the Commercial Law, only substantial breaches are subject to some
types of remedies
— Substantial breaches are breaches that cause damage to the other party to
an extent that the party unable to achieve its purpose of entering into the
contract
1, Remedies
— Specific performance
— Penalty for breach
— Damages for loss
— Temporary cessation of performance of contract
— Termination of performance of contract; Rescission of contract
— Other remedies agreed by the parties and in accordance with the law
— Conditions for applying remedies:
(i) There is a breach of contract
(ii) Loss or damage has occured
(iii) There is a causal link between the breach and the loss or damage
VI, Business-related dispute resolutions
— Traders are free to choose the method and forum for commercial dispute
settlement
— However, the laws provide detailed rules on settling dispute by courts and
by arbitration
1, Commercial disputes settlement in the court
— Jurisdiction: the District Court or the Economic Division of the Provincial
Court handle dispute at the first instance
— Case applied:
+ Purchase and sale of goods; provision of services
+ Commercial representation and/or agency; consignment; renting, leasing
+ Construction; consulting, engineering
+ Cargo or passenger transportation by rail, road, or inland waterway; cargo
or passenger transportation by aviation or sea
— The parties have to resort to conciliation first (except some circumstances)
— During the trial but before the court delivers its judgments, if the parties
reach a mutual settlement, such mutual settlement shall be applied
— Commercial disputes settlement in the court depending on the nature, not
the value of the court
2, Commercial dispute settlement by commercial arbitration
— Arbitration has jurisdiction to resolve:
(i) Disputes arising from commercial activities
(ii) Disputes arising between parties at least one of whom is engaged in
commercial activities
(iii) Other disputes which can be resolved by arbitration according to the laws
of Vietnam
— In order to applied arbitration, there must be arbitration clause in the
underlying contract or a separate arbitration agreement
— The arbitration agreement must be in writing and entered into by the
parties prior to, or after, the dispute occurs
— If an arbitration agreement already exists, the court in Vietnam must
refuse to hear a legal action brought by one of the parties to the court if
such an action is contrary to the provisions of the arbitration agreement
— Arbitration include:
+ Arbitration center
+ Ad-hoc arbitration panel (consisting of three arbitrators or a single
arbitrator)
— The parties are free to select arbitration to settle the dispute
Chapter: Labour Law

I, Introduction
III, Contents
1, Employment relationship
a) Employee
— Vietnamese:
+ A person at least fifteen (15) years of age with the ability to work
+ Works pursuant to a labor contract
+ Managed by the employer
— Foreigner:
+ Has full legal capacity for civil acts
+ Possesses specialized, technical skills, and health for work requirements
+ Not previously convicted of a crime or under investigation
+ Has a work permit issued by the competent Vietnamese authority
b) Employer
— An employer can be an enterprise, agency, organization, co-operative,
business household, or individual
— Employer hires or employs labor pursuant to a labour contract
c) Exclusions
— Vietnamese labour law does not govern the labour relationship of sates
officials, elected and appointed officials, members of units of the people's
armed forces and police force, members of public organizations, members of
other political and social organizations, and members of co operatives
2, Individual labour contract
a) Contract formation
— Labour contract is an agreement between an employee and an employer
on pay, working conditions, and the rights and obligations of each party
— Labour contract must be in writing and must include a duplicate, with
each party retaining one copy
— An oral agreement may be entered into for certain temporary work that
has a duration of less than three (3) months
— A labour contract must be one of the following types:
+ Indefinite term labour contract: the two parties do not pre-determine the
term and termination date of the contract
+ A definite term labour contract: the two parties determine the term and
the date of termination, ranging from a period of 12 months to 36 months
+ A labour contract for a specific or seasonal job with duration of less than
12 months
b) Contents of contract
— Essential terms in an employment contract, including:
+ Personal information of employee
+ Information of employer: name, address of employer or legal representative
+ Description of the work to be performed, working location
+ The labor contract term; the working hours and break time
+ The salary and relevant issues
+ The working hours and break time
c) Probation
— Cannot exceed 60 days: professional, technical college qualification or
above
— Cannot exceed 30 days: intermediate-level qualification, technical worker
— Cannot exceed six (6) working days: other positions
— During the probationary period, the employee is entitled to a salary
equivalent of at least 85% of the salary that he would be entitled to receive if
he were employed
d) Performance of contract
— The amendment of the labour contract can only be executed with the
employee's consent
— In case of unforeseeable difficulty due to a natural disaster, fire,
epidemic, quarantine, the employer has the right to temporarily assign an
employee to do work other than that specified in the labour contract, but not
for more than an accumulated period of 60 days in a year
e) Terminations
— Stipulated from Article 34 to Article 48 of the Labour Law 2019
f) Allowances upon terminations
— As of January 1 2009, the unemployment insurance program began,
seniority for severance or redundancy allowance purposes stopped accruing
for Vietnamese employees participating in the unemployment insurance
scheme
— Any periods during which an employee and employer contribute to
unemployment insurance will not be taken into account when determining
the employee's severance or redundancy allowance
3, Labour outsourcing
— An employee who is employed by a labour outsourcing enterprise, and is
assigned to work for another organization, is subject to the management of
the latter organization but remains under the labor relationship with the
labour outsourcing enterprise
4, Collective Labor Agreement

a) Trade Union
— Vietnamese employee has right to establish and participate in activities of
a trade union to:
+ Represents and protects the legitimate and lawful rights and interests of
the employees
+ And it encourages the employees to upgrade their professional and
technical skills,…
b) Dialogue at the workplace and collective labour bargaining
— The Labour Code requires the employer to encourage dialogue in the
workplace
— The purpose of the dialogue is for employees to share information and to
create a better understanding between the employer and the employees in
order to formulate a good labour relationship
c) Collective labour agreement
— A CLA is a written agreement between the employees as one party and
the employer as the other party in respect to the matters relevant to the
labour relationship
5, Working conditions, Salary and Hours
a) Labour safety and Hygiene
— The employer is responsible to prepare its regulations and working
procedures in order to ensure labour safety and hygiene
— The employee is entitled to refuse to work but still receive pay when there
is an obvious risk of work-related accident, or occupational disease, or other
kind of threat to the employee's health or life
b) Injury compensation
— Vietnamese law requires an employer to compensate any employee who is
injured in a work-related accident or who suffers from an occupational
disease
c) Salary and bonus
— Salary means money which the employer pays to the employee to
undertake the work as agreed, including salary plus allowances and other
additional items
— Regulations on payment to employees who work overtime:
+ Normal working day: at least 150% of normal basic salary
+ Weekly day off: at least 200% of normal basic salary
+ Public holiday: at least 300% of normal basic salary
+ Work at night: addition payment of 30% of normal basic salary
d) Working hours
— Normal working hours: not exceed 8 hours in 1 day and 48 hours in 1
week
— If on a weekly basis: not exceed 10 hours in 1 day and must not exceed 48
hours in 1 week
e) Rest time
— An employee with 12 months service is entitled to have annual leave with

full pay:
+ 12 days: Normal working conditions
+ 14 days: who does heavy, noxious, dangerous, under locality with harsh
living conditions, or who is under 18 years of age
+ 16 days: especially heavy, noxious, dangerous, under locality with
especially harsh living conditions
— Vietnamese Social Insurance Law provides several social insurance
leaves for employees, including sick leave and maternity leave
— Maternity leave: 6 months
— If she gives birth to twins or multiples, she is entitled to an additional
one month for each baby beyond a single birth
— She may return to work after she has taken 4 months of maternity
leave but must obtain approval from a competent medical advisor and the
employer's consent
6, Discipline and material liabilities

a) Internal Labor Regulations and Discipline Actions
— The employer must have ILRs carefully-worded company labor rules duly
registered with DOLISA
— Disciplinary action will be regarded as unlawful unless the ILRs are
followed
— The Labour Code 2012 requires that an employer recruiting ten or more
employees must have written ILRs that contain certain labor rules
— An employee who breaches ILRs, depending on the seriousness of the breach,
may be disciplined in one of the following ways:
+ Reprimand, either oral or in writing
+ Deferral of wage increase for a maximum 6 months or demotion
+ Temporarily suspend an employee from work
+ Dismissal: possible only in some circumstances
b) Remedies of employee
— The Labour Code 2012 allows the employer to claim compensation from
an employee who damages or loses tools, equipment, or other assets of the
company
7, Social insurance
— Compulsory social insurance
— Voluntary social insurance
— Supplementary retirement scheme
— Unemployment insurance
8, Labour disputes
— Labour disputes may be individual labour disputes or collective dispute
+ Individuals dispute: between an individual employee and his employer
+ Collective dispute: between a group of employees and their employers,
including:
(i) related to employees' rights
(ii) involving employees' interests
9, Strikes
— A strike must be organized and led by an internal trade union or by a
representative appointed by employees (if trade union has not been established)
— A strike is illegal if:
+ It does not arise from a collective labour dispute on interest
+ The employees on strike do not all work in the same company
+ Attempts to resolve a collective labour dispute on interest either have not
been made or the dispute is in the process of resolution
+ It has not been organized and led by the internal trade union or the
representative of the employees …

Law

Uploaded by

Copyright:

Available Formats

You might also like

Law

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Law

Uploaded by

Copyright:

Available Formats

Chapter 1: Overview of the Vietnamese state and

(3rd labor division)

(2nd labor division)

b) 1st labor division c) 2nd labor division

Needs for “better food, better life”

More goods => Needs to exchanges goods

Trading appeared => Money appeared

2nd Damaged the structure of clan/tribe =>

II, Definition, essence of the state

b) Forms of state structure

Subjects Individuals Assembly

Chapter 2: The state of Vietnam

VI, People’s Prosecution

Chapter 4: Vietnamese Legal system

Ex: Article 1– The 2013 Constitution

Chapter: Human Rights and Ensuring Business

— Article 14 of the 2013 Consitution: “In the Socialist Republic of

III. The right to freedom in business of citizens in the Vietnamese

Prior to 1945: three 1995 – 2005: The society change Civil

— Who have problem in mental

— The point in time when civil obligations are terminated:

— The liability to compensate for extra-contractual damage shall arise only

a) Inheritance under wills

II, Brief history and development

IV, Crimes and Element of crimes

— Criminal liability capacity:

— Physical elements of certain crimes only require a criminal act

+ A person will only be treated as guilty of an offence if he or she is convicted

— Life imprisonment (indefinite imprisonment):

Chapter: Law on Business Organization

III, Household business

V, Limited liability company with two or more members

Chapter: Commercial Law

b) Goods transit services

3, Commercial intermediary activities

V, Breach of commercial contracts

Chapter: Labour Law

4, Collective Labor Agreement

— An employee with 12 months service is entitled to have annual leave with

6, Discipline and material liabilities

You might also like