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Law can be defined as an organized system of principles and rules designed to control and influence the conducts of individuals and groups. The aim of most legal systems, official at least, is to provide a means of resolving conflicts in a fair and harmonious way .
Minh Nguyen 7/20/2012 yiuyuiu 1 Ha, Thi Thanh Binh (LLD) VIETNAM BUSINESS LAW Topic 1 Introduction to Vietnamese Legal system and Business Law 2Ha, Thi Thanh Binh (LLD) Introduction to Vietnamese Legal system 3 • Theory of law • Categories of legal system • The Vietnamese legal system Ha, Thi Thanh Binh (LLD) 3 Theory of Law • Definition and purposes of law • Legal systems 4 Ha, Thi Thanh Binh (LLD) Definition of the law • Law can be defined as an organized system of principles and rules designed to control and influence the conducts of individuals and groups • The aim of most legal systems, officially at least, is to provide a means of resolving conflicts in a fair and harmonious way. 5 Ha, Thi Thanh Binh (LLD) Purposes of law • Remedying private disputes • Controlling anti-social activities • Regulating harmful activities 6 Ha, Thi Thanh Binh (LLD) Minh Nguyen 7/20/2012 yiuyuiu 2 Legal system • Collection of legal norms developed systematically with foundation and branches • Classifiable. • Groups of norms are inter-connected 7 Ha, Thi Thanh Binh (LLD) Categorization of legal systems • Civil law legal system • Common law legal system 8 Ha, Thi Thanh Binh (LLD) Civil law legal system • Sources of law • Substantive law and procedural law 9 Ha, Thi Thanh Binh (LLD) Sources of law • Statute law (written law) • Implementing regulations 10 Ha, Thi Thanh Binh (LLD) Substantive law and procedural law • Substantive law provides provisions governing rights and obligations of individuals and organizations. E.g: civil code, commercial law, criminal code… • Procedural law concerns procedures used to protect rights and interests of individuals and organizations. E.g: Civil Procedures Code, Criminal Procedures Code… 11 Ha, Thi Thanh Binh (LLD) Common law legal system • Sources of law • Doctrine of precedent • Development of common law legal system 12 Ha, Thi Thanh Binh (LLD) Minh Nguyen 7/20/2012 yiuyuiu 3 Sources of law • Statute • Common law 13 Ha, Thi Thanh Binh (LLD) Statute • Written law made by legislature. 14 Ha, Thi Thanh Binh (LLD) Common law • Common law is a collection of principles and rules based on the decisions of judges in higher courts 15 Ha, Thi Thanh Binh (LLD) Doctrine of precedent • Decisions on the same or similar facts by a higher court in the same hierarchy are binding on a lower court. 16 Ha, Thi Thanh Binh (LLD) Development of common law legal system • The common law system has its origins in the development of a centralized system of courts that applied a body of common law in place of the differing customary laws applied by the manorial courts. • The role of the judges was to resolve disputes on a case by case basis but in so doing they develop rules that collectively formed a body of case law. 17 Ha, Thi Thanh Binh (LLD) The Vietnamese Legal System • History of Vietnamese law • Public laws and private laws 18 Ha, Thi Thanh Binh (LLD) Minh Nguyen 7/20/2012 yiuyuiu 4 History of Vietnamese law • Pre-historical time • The first Vietnamese written criminal code (Hinh thu) was issued in 1042 in three books • The Hong Duc Code 1483 • Gia Long Code 1803 • Since 1945 • Since 1954 – In the North of Vietnam – In the South of Vietnam • Vietnamese law after 1975 19 Ha, Thi Thanh Binh (LLD) Public laws and private laws • Public laws: laws of public interests – Administrative law – Criminal law – Financial law – Competition law – … • Private laws: laws of private interests – Civil law – Commercial law – Corporate law – … • Critics of Lenin over the separation between public laws and private laws: the danger of confusion between public and private interests 20 Ha, Thi Thanh Binh (LLD) Public laws and private laws (cont) • Laws after Doi Moi: return to public-private dualism? • Hybrid laws: – Competition law – Intellectual property law – Commercial law Question: to what extent the state should intervene to freedom of contract and the free market economy? 21 Ha, Thi Thanh Binh (LLD) Vietnamese legal systems (areas of law) • Constitutional law • Administrative law • Criminal law • Civil law • Family law • Labour law • Land law • Financial and banking law • Criminal procedures law • Civil procedures law 22 Ha, Thi Thanh Binh (LLD) Introduction to Rules of law and Applications • Rules • Applications 23 Ha, Thi Thanh Binh (LLD) Rules • Conditions of a legal rules – Legal documents from competent authorities – Provide general regulations for un-identified number of people – Established under procedures as prescribed by law • Classification of sources of laws – Constitution – Laws – Resolution issued by the National Assembly – Ordinance and resolution issued by the Standing Committee of the National Assembly – Sub-law regulations • Resolutions and Decrees issued by the Government • Decision, directives • Circular • Inter-ministerial Circular (Note: Function of Official letter) SOURCES OF LAW IN VIETNAM.doc 24 Ha, Thi Thanh Binh (LLD) Minh Nguyen 7/20/2012 yiuyuiu 5 Applications • What are legal applications? • Steps in applications (IRAC) – Issues – Rules – Applications – Conclusions 25 Ha, Thi Thanh Binh (LLD) Constitutional Law • Doctrine of separation of powers vs. Doctrine of parliamentary supremacy • Vietnam Constitution Law 26 Ha, Thi Thanh Binh (LLD) Doctrine of separation of powers • Typical country: USA • Principles: – There are three functions of government: legislative (law making), executive (administration) and judicial (adjudication); and – Each of these should be exercised by one organ of government with no overlap so that each can then act as a check and balance on the others. 27 Ha, Thi Thanh Binh (LLD) Doctrine of parliamentary supremacy • Typical country: Vietnam • Principles: – Parliament (National Assembly) has supremacy power as parliamentary members represent the people of the country. – Even though powers of the government are divided amongst three main branches, the parliament remains supremacy. 28 Ha, Thi Thanh Binh (LLD) Vietnam Constitution Law • Historical development • General provisions • Economic regime and civil rights • The National Assembly • People’s Council • The Government • The President • The Court • People’s Prosecution • Other organizations 29 Ha, Thi Thanh Binh (LLD) Historical development • Constitution 1946 • Constitution 1959 • Constitution 1980 • Constitution 1992 (as amended in 2001). 30 Ha, Thi Thanh Binh (LLD) Minh Nguyen 7/20/2012 yiuyuiu 6 General provisions • Name of the country, political regime: a state of the people, by the people, for the people. All rights are from the people. • Role of the Communist Party of Vietnam • Role of the working class in Vietnam • Development of Constitutions of Vietnam • District, Province and the State • The Army and Police 31 Ha, Thi Thanh Binh (LLD) Economic regime and civil rights • Economic regime: multi-component commodity market economy with socialist orientation. • Components: – State economy – Collective economy – Private economy – Foreign-invested economy • Civil rights: rights attached to a citizen, protected by the state, exercised by the citizen in the framework provided by law – Political rights – Socio-economical rights – Citizen rights and human rights 32 Ha, Thi Thanh Binh (LLD) The National Assembly • How to elect members of the National Assembly – Electoral units – Nomination and voting • Supremacy of parliament • The role of the Standing Committee of the National Assembly – Convene the meeting of the National Assembly; – Implement the functions of the National Assembly between its meetings; – Adopt Ordinance and Resolutions 33 Ha, Thi Thanh Binh (LLD) Functions of the National Assembly • Legislative function – The process of law-making – Approval of international treaty – Interpretation of law • Supervision function – Supervision of the Government – Supervision of sub-law adoption and implementation • Other important functions – Election of President, vice-presidents, PM – Appointment of chief justice and general procurator – Approve the cabinet members 34 Ha, Thi Thanh Binh (LLD) People’s Council • Electoral modes • Function: – Representatives of people at local levels – Adopting measures to implement the Constitutions and law. – Electing People’s Committee members 35 Ha, Thi Thanh Binh (LLD) The Government • Central Government and Local Governments • The Prime Minister and Deputy Prime Ministers • Government’s Office • Ministries • People’s Committee at the Provinces • Responsibilities of administrative public servants – Collective responsibilities – Individual responsibilities 36 Ha, Thi Thanh Binh (LLD) Minh Nguyen 7/20/2012 yiuyuiu 7 The President • Election of the President • Functions of the President (mostly formality) – Head of State – Commander in Chief of the Army 37 Ha, Thi Thanh Binh (LLD) The Court • Independence of justice and the role of justice in the Rule of Law – Rule of Law: everyone is accountable to law and the law applies equally to everyone – Independence of justice: guarantee of the above principle. • Court structure • Appointment of Judges • Functions of a Judge • Reappointment of a judge • Independence of a judge • Role of the Ministry of Justice • Training procedure of a judge 38 Ha, Thi Thanh Binh (LLD) People’s Procuracy • Structure • Functions – Supervise the administrative agencies in their implementation of law – Prosecuting criminal cases 39 Ha, Thi Thanh Binh (LLD) Other organizations • National Fatherland Front • Communist Youth League • Professional Organizations • Lobby of interest groups 40 Ha, Thi Thanh Binh (LLD) Summary • ORGANIZATIONAL STRUCTURE OF THE STATE OF VIET NAM.doc 41 Ha, Thi Thanh Binh (LLD) Business law • Definition • Main areas of law 42 Ha, Thi Thanh Binh (LLD) Minh Nguyen 7/20/2012 yiuyuiu 8 Definition • Business law means the law regulating and affecting the operation of a business. 43 Ha, Thi Thanh Binh (LLD) Main areas of law • The law governing business structures and establishment of a business (Law on Enterprises and Investment Law) • The law governing business transactions (Law of contract, Law of Tort, Competition Law, Intellectual Property Law…) • The law governing dispute resolution (Law on Commercial Arbitration, Law on Civil Procedures…) • The law governing the termination of a business (Liquidation and Insolvency Law) 44 Ha, Thi Thanh Binh (LLD) . issued in 10 42 in three books • The Hong Duc Code 14 83 • Gia Long Code 18 03 • Since 19 45 • Since 19 54 – In the North of Vietnam – In the South of Vietnam • Vietnamese law after 19 75 19 Ha, Thi. Minh Nguyen 7/20/2 012 yiuyuiu 1 Ha, Thi Thanh Binh (LLD) VIETNAM BUSINESS LAW Topic 1 Introduction to Vietnamese Legal system and Business Law 2Ha, Thi Thanh Binh (LLD) Introduction to Vietnamese. (LLD) Historical development • Constitution 19 46 • Constitution 19 59 • Constitution 19 80 • Constitution 19 92 (as amended in 20 01) . 30 Ha, Thi Thanh Binh (LLD) Minh Nguyen 7/20/2 012 yiuyuiu 6 General provisions •