Introduction to law

QUYNH NGUYEN, LLM

quynhntn@neu.edu.vn

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Main contents
1. Nature of law
2. Law making
3. Dispute Settlement – Court system
4. Dispute Settlement – Alternative Dispute Resolution
(ADR)
5. Administrative Law
6. Criminal Law
7. Business Organisations
8. Business Transactions (Contract)

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Definition of law

The law is a set of rules, enforceable by the courts,

which regulates the government of the state and
governs the relationship between the state and its
citizens and between one citizen and another.

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Classification of law
◦ Public and Private Law
◦ Criminal and Civil Law
◦ Common Law and Civil Law

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Public law vs. Private law
◦ Public law is concerned with the relationship between
the state and its citizens.
◦ Private law is primarily concerned with the rights and
duties of individuals towards each other.

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 Criminal v Civil
CRIMINAL LAW
◦ Defined: Offence against the state
◦ Burden of Proof: lay at procurator
(representative of the State)
◦ Examples: Murder, theft, driving
with excess alcohol, engaging in an
unfair commercial practice.
CIVIL LAW
◦ Defined: disputes between private
individuals
◦ Burden of proof: party who
requests (the claimant) should
prove that his/her request is
reasonable
◦ Examples: contract, tort, trusts,
property law
Where does the law come
from?
In general, it could be said there are three main sources
of law:
1. Legislation
2. Case law
3. Customs

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Sources of law (1)
◦ Legislation
- Constitution
- Statutes
- Subordinate legislation
- Administrative directives
◦ Case law

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Constitution (1)

• is the fundamental law of a state

• defines the political, economic and cultural mechanism

• establishes the governmental structure and allocates power

among the levels of government

• specifies the rights and liberties of the people

• The current Constitution of Vietnam is the Constitution

2013

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Constitution (2)

◦ Virtually all nations have a written constitution which

sets out the broad parameters for government and
social organisations.

◦ Only UK, New Zealand and Israel do not have a

written constitution.

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 Constitution 2013
◦ Is the current constitution in Vietnam

◦ The Constitution is the fundamental law of the State having the

highest legal effect.

◦ All legal documents promulgated must conform with the Constitution

and ensure the uniformity and the rank of its legal effect in the legal
system.

◦ All legal documents issued by a lower-level State agency must

conform with the legal documents of the higher-level State agencies.
Statutes (1)
• enacted by legislative authority (Parliament)

• enjoy a superior legal status after Constitution

• designated as Codes if more important and comprehensive

such as Civil Code, Criminal Code, Labour Code…

• Some important statutes in the area of business: Law on

Enterprises 2014, Law on Bankruptcy 2014, Law on State
Enterprises 2003, Law on Investment 2014 …

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Statutes (2)
◦ Statutes cannot cover all possible outcomes or eventualities;

◦ The statute provides a general framework to deal with certain

topics;

◦ Details which allow the statute to operate effectively will often

be found in delegated legislation;

◦ Delegated legislations, so-called subordinate legislations,

generally come into operation after their publication in the
Official Gazette

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Examples of statutes
Factors that limit the legislative powers
of the NA
◦ The NA cannot take any action that is inconsistent with the
provisions of the Constitution.
◦ Article 146 of the Constitution states that the Constitution is the
‘fundamental law of the State and has supreme legal force’.
◦ The NA must not act in a manner that contravenes the
provisions of international treaties to which the State has
committed itself. However, Article 84 of the Constitution
empowers the NA to nullify international treaties if appropriate.
Subordinate legislation
- issued by administrative authorities
- usually promulgated for the implementation of
statutes
- formed as Decrees of the government or Circulars of
Ministers
- play an important role in Vietnam, especially in the
field of business

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Case law

◦ Plays an important role in the common law system

◦ Made by a judge when deciding a case

◦ Serves as precedent and be relevant for future disputes

◦ Recently recognised in Vietnam as a source of law

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Resolution 03/2015/NQ-HDTP dated 28
October 2015
◦ For the first time, the Resolution officially recognises
case law as a source of law in Vietnam.

◦ It is expected that the Vietnamese legal system will be

more consistent, and more predictable.

◦ This resolution came into force on 16 December 2015.

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 Case study

◦ Mrs Donoghue was drinking a bottle of

ginger beer in a café in Paisley when she
found out a dead snail in her bottle. She
fell ill and sued the ginger beer
manufacturer, Mr Stevenson.
◦ The House of Lords held that the
manufacturer owned a duty of care to her,
which was breached, because it was
reasonably foreseeable that failure to
ensure the product’s safety would lead to
harm of consumers.

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Legal systems in the world
◦ A legal system is the mechanism for creating,
interpreting and enforcing the laws in a given
jurisdiction.
◦ There are three major legal systems in the world. They
are:
◦ Common law (UK, USA, Australia…)
◦ Civil law (France, Germany, Italy, Vietnam…)
◦ Muslim law (Iran, Libya, Pakistan…)

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 ◦ is derived from the
Koran
Muslim law ◦ used in some Middle
Eastern nations such as
Iran and Saudi Arabia.
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Civil law
◦ Based upon Roman law
◦ Depends upon comprehensive legislative enactments
(called Codes)
◦ Prevails in most of Europe, Mexico, South America,
State of Louisiana (USA), Vietnam…
◦ Not recognises common law as a source of law.

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Sources of civil law
◦ Constitution
◦ EC law (EU countries only)
◦ Statutes
◦ Administrative regulations (Decrees of the
government)
◦ Customs (not important)

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Common Law
◦ Common law was developed in England following the
Norman Conquest in 11th century.
◦ The courts in common law system have developed a body
of law that serves as precedents for dealing with similar
cases.
◦ Under common law system, two basic sources of law are
statute law and the common law itself.
◦ The common law system exists in UK, USA, Australia and
the Commonwealth community.

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Sources of law in common law
◦ Case law
◦ Statutes
◦ Custom
◦ EC law (UK only)

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Case law

◦ Case law is law made by judges as a result of the

doctrine of judicial precedent. (stare decisis)

◦ Case law contains common law and equity.

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Role of judges in civil law and common
law

◦ In civil law: Judges simply apply the law – they do

not make law via judicial precedent.

◦ In common law: Judges play two roles in building up

- by setting and applying judicial precedent, and
interpreting statutes.

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 Questions: Civil or Criminal?
◦ Ann decides to divorce her husband, Barry, after 10 years of
marriage.
◦ Colin is given a parking ticket by a traffic warden for parking on
double yellow lines.
◦ Diane returns a faulty steam iron to the shop where she bought
it, but the shop manager refuses to give her a refund.
◦ Eamonn drives at 50mph on a stretch of road where there is a
30mph limit. He fails to see Fiona, who is crossing the road. She
is knocked down and sustains severe injuries.

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 Questions: Civil or Criminal?
◦ Graham takes a copy of Business Law from a reference section
of the library, with the intention of returning it when he has
finished his first assignment. He finds the book so valuable that
he decides to keep it.
◦ Hazel returns to England after working abroad for three years.
While abroad, she rented her flat to Yan. She now gives him
notice to quit, but he refuses to move out.

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 Examination case
◦ David, a farmer, supplies organic free range eggs on a regular
basis to the Peak Park Hotel and Country Club. David’s hens,
and the eggs they produce, have become infected with
salmonella. The hotel uses the infected raw eggs to prepare a
mayonnaise for Ian and Janet’s wedding reception. Many of the
guests are taken ill after the reception and Sybil, Janet’s 90-year-
old grandmother, dies.
◦ Identify the different types of legal proceedings which might arise
from these facts.
◦ For each type of legal action you have identified in (a), discuss the
nature of the legal liability and the purpose or objective of taking
legal action.

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