CHAPTER 1:

STATE AND LAW

TRẦN THANH TÂM

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

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

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

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

Delegated Ordinances
Decrees
legislation Circulars
Decisions

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 3. Categories of Law

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

divide it into categories

• Criminal law and civil law

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

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 common law legal system

CRIMINAL VS CIVIL LAW

CRIMINAL PROCEEDINGS CIVIL PROCEEDINGS
Purpose To punish the perpetrator of the crime; To seek a remedy for a
to deter others from committing the private wrong
same crime
Parties cong to vien Public prosecutor prosecutes the Plaintiff sues the defendant
accused/defendant bi cao ** bi can

Discretion to The discretion whether or not to initiate The discretion whether or

initiate an action an action lies with the state not to initiate an action lies
he right or ability to decide something with the plaintiff
Burden of proof Public prosecutor must prove the case
otherwise, cant convict the accused
Plaintiff must prove case on
Nghia vu chung minh
beyond reasonable doubt the balance of probabilities
standards r not as high
Decision of the Guilty or not Guilty Liable or not liable
Court boi thuong thiet hai
buoc thuc
hien dung hop
Sanctions Jail sentence, fine, other Damages, specific dong

life imprisonment, death penalty performance, injunctions,

other decision that doesnt
allow u to do ST
convict: ket an
 DISCUSSION
1) Armed team broke into a bank;
2) A works for a restaurant and the restaurant
failed to pay him salary for 2 months;
3) A has his house for foreigners rent;
4) A killed B for money;
5) While driving the car beyond speed limits, A
crashed into B and made him injured; Criminal code
6) a married couple wanted to divorce
seller><customer
7) Seller fails to deliver goods on time to buyer sale contract
A criminal case involves a violation of a public law harms society, while
a civil case involves a violation of a private law that harms an individual
or a group.
 DISCUSSION
8) A customer got poisoned after having lunch in a
restaurant; food poisoning > art 317 food safety**search again
9) Disagreeing with each other on how to share the
house left by a father, the two brothers fought each
other until death; criminal violent incident > death > murder

10) Being much impressed by huge profit, A involved

in trafficking heroine;
11) A involved in trafficking newly born babies
abroad; Human trafficking 150,151

12) A company makes his drinking products having

labels easy to confused with Lavie
 PENAL CODE 2015 cai tao khong giam giu

Article 260. Offences against regulations on road traffic

1. Any person who violates regulations on road traffic safety
in any of the following cases shall be liable to a fine of
from VND 30,000,000 to VND 100,000,000 or face a
penalty of up to 03 years' community sentence or 01 - 05
years' imprisonment: a) The offence results in the death
of 01 person or bodily harm to 01 person who suffers
from ≥ 61% physical disability;… Criminal. If less, a civil case
2. If the offence results in bodily harm to 01 person who
suffers from 31% - 60% physical disability, or bodily harm
to 02 or more people who suffer from a total physical
disability of 31% - 60%, the offender shall be liable to a
fine of from VND 30,000,000 to VND 100,000,000 or face
a penalty of up to 03 years' community sentence.
 Private Law and Public Law

• Private Law and Public Law are concerned

with relationships

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 Private Law

• Private Law deals with the relationships

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

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Private Law

Individual Individual

Law regulates relationship

between them

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

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 Public Law

State State Bodies

cac co quan nha nuoc

Individual

Law regulates relationship

between them
diff: involving the state or not

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 DISCUSSION
the state w the defendant
behavior that is or can be construed as
• Criminal law public an offense against the public, society, or
the state
• Constitutional law citizens w the state, state agencies, state w state
bodies, within the state

•
public: deals with the decision-making of such administrative units
Administrative lawof government (taxation, immigration, registration) -- marriage
registration, personal income tax, residence permit [gov w
• Law of contract companies,business]
or company v individuals (rent contract,
labor contract)
boi thuong
• Tort law thiet hai
ngoai hop
between citizens
dong
deals with transactions related to residential and
• Property
luat so huu
law commercial property (share the
house left by a father,
• Family law relationships between members of a household
• Company law within the company, between the org and
individuals, or between individuals in the
company
 Substantive vs procedural law
civil code (protect your rights - art 32 Rights of individual with respect to his or her image),
commercial law (2 businesses in dispute) , investment law (invest in a project > certificate or
permit), law on enterprises (a coffee shop)
• Substantive Law: Defines rights and
obligations luat noi dung
luat to tung, luat hinh thuc

• Procedural Law: Establishes processes for

resolving disputes disagreement
, civil procedure code (mention the power of the court, process to sue SO), criminal procedure
code

Vietnam commercial arbitration law (combination law)

sub+pro
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 hongkong, malaysia, singapore china, VN

Common Law and Civil Law

UK, south africa, USA, canada, india louisiana of America

thong luat dan luat

• Common Law and Civil Law are terms used

to describe legal systems
• A legal system is the way the law is
structured and operated in a country
– England and Vietnam have different legal
systems
some other legal system: Islamic law (in Muslim/Islamic countries - most middle east countries)
-Qur'an and Hadith
-halal food (must have the label "halal food" on the item to legally consume)
-not allowed to eat pork (pork is impure and unclean > cant go to heaven)
-prohibit cohabitation (living together before marriage)
-women discrimination (men get married to 4 women)
-interest (lai suat) not allowed 19
 Common Law British colonized countries

• Common Law is used to describe legal

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

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 Common Law

• One of the unique features of the common

law is that it is judge-made law. the judge can
make the law
called ban an not phan quyet (pahn quyet cua trong tai)
• The judgments of courts operate not only
to resolve the particular dispute of the
specific parties before the court, but also
an lenh
stand as precedentscanfor the resolution of
be used for future cases, including principles > LAW
future disputes of a similar nature
# in VN only the national assembly makes the law

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

Hoc thuyet
• The doctrine of Stare decisis - a Latin phrase
meaning “to stand on decided cases.”
had to follow what had been decided by the court
• Stare decisis has two aspects:
1. A court should not overturn its own
precedents unless there is a compelling
reason to do so. need to be consistent and uniformative, still can
change but must have a compelling reason
2. Decisions made by a higher court are
binding on lower courts.
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 -who make them
DISCUSSION -diff vs common law countries

• PROS AND CONS OF USING PRECEDENTS

• THE ROLE OF PRECEDENTS IN VIETNAM
Pros:
-fosters public confidence in the fairness and transparency of the legal process. People
are more likely to trust a system that relies on established principles and past decisions.
-legal education : study past cases (principles, reasoning, how the legal system developed)
-provides guidance to judges, lawyers, and individuals involved in the legal system
(help to make decisions, support their arguments)
-allows the law to evolve and adapt to changing circumstances and societal values
-saves time and resources in legal proceedings (can look at existing case law)
-promotes fairness (treats similar case alike)

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

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

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

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

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

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 Origin of State

Primitive community/ classless society

Class society State

3 times of specializations

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 What is a state?
• Special political organization

• Protect the rights and interests of the

ruling class

• Maintain the stability of the society

• Have enforcement power

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Separation of powers

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Forms of states
State Apparatus