Ordinances(Pháp lệnh): to cover sth new which is not mentioned in the law, for things

that are new, maybe unstable -> things getting more stable, necessary -> law.
-​ Made by the Standing comittee: “. Standing Committee of the National Assembly
shall promulgate ordinances to decide the issues assigned by the National
Assembly.” (article 16, clause 1, law on Promulgation of normative document)
-​ Function:

-​
-​ Eg:
+​ Ordinance penalties for administrative violations against regulations on
state audit (01/05/2023): This Ordinance stipulates administrative
violations; penalties and fines; remedial measures; power and procedures
for imposing penalties, implementation and enforcement of decisions on
imposition of penalties for administrative violations against regulations on
state audit (article 1)
+​ Ordinance on Procedures for consideration and decision on imposition of
administrative penalties at the people courts (01/03/2023)
+​ Ordinance on market surveillance
Decree(Nghị định): ONLY GOVERNMENT CAN MADE DECREE (EVEN NOT THE
PRIME MINISTER)

-​ Provide detailed guidance on the law/ordinance.

-​ When ordinance and decree conflict, ordinance prevails (
Circular(Thông tư): made by minister (bộ trưởng), the head of ministerial agency
(thủ trưởng cơ quan ngang bộ), the executive judge of the supreme people’s court, the
chief procurator of the supreme people’s procuracy (Viện trưởng viện kiểm sát).
-​ There are 4 ministerial-level agencies:
+​ The state bank of VN: Governor (Thống đốc)
+​ The government office: Head/Chairman (Chủ nhiệm văn phòng chính phủ)
+​ The government Inspectorate(Thanh tra chính phủ): Inspector-general
(Tổng thanh tra)
+​ The ethnic Committee: Ủy ban dân tộc
-​ Lowest court in VN: the district people court (Tòa án nhân dân cấp quận/huyện)<
the provincial < the high people’s court (Tòa án nhân dân cấp cao) < supreme
people’s court (Tòa án nhân dân tối cao).
-​ When not agree with the decision of the district local court: appeal (Kháng cáo) to
the higher court
-​ Procuracy:
+​ Prosecution: investigation -> Prosecution(Khởi tố) -> Court: settle the
dispute
+​ Supervision:
Function: Provide detailed guidance for decree.
Decree>Circular (Government>ministry).

Decisions(Quyết định):
-​ Made by president, prime minister, state auditor general (Tổng kiểm toán
nhà nước), people’s comittee of all levels
-​
Order(Lệnh):
-​ Made by the president

-​

-​
Resolution(Nghị quyết)
●​ Resolutions made by National Assembly = law

Hội đồng thẩm phán của tòa án nhân dân tối cao
(Hội đồng nhân dân các cấp)

Official letter (Công văn): not legal documents, but administrative documents
Directive (Chỉ thị): not legal documents, but administrative documents (not included
in art 4, law on promulgation of law)
->not binding: không bắt buộc

CATEGORIES OF LAW
1.​Criminal/Civil
-​ Civil: plaintiff (nguyên đơn), defendant (Bị đơn)
-​ Criminal: defendant (Bị cáo)
-​ Public prosecutor: in VN = people’s procuracy
-​ Bị can: the suspected (haven’t been accused) -> Bị cáo: the accused (have been
accused)
-​ In arbitration: nguyên đơn (claimant)/ bị đơn (respondent)

-​
-​ In civil law, the plaintiff can decide whether to sue or not; in criminal law, if commit
a crime will be prosecuted by the state, not depend on the victim.
 -​
-​ Beyond reasonable doubt: need 100% true evidence
-​ Balance of probabilities: don’t need as strict evidence as criminal

-​
-​ (criminal code)
-​ Based on sanction to classify
-​ * có bằng khen có thể được giảm án:))))
PRIVATE LAW (TƯ PHÁP) vs PUBLIC LAW (CÔNG PHÁP)

Difference: the involvement of the state

Public law: criminal law, constitutional law, administrative law
-​ Criminal: the police involves in investigation when s.o commit a crime
-​ Constitutional: the relationship between the state agencies and state agencies,
relationship between the state and the citizen (protect the citizen’s rights)
-​ Administrative: relationship between state agencies and citizens. Ex: violate the
traffic law -> pay the fine to the government; go to the local authority to get an ID
card; go to the local people committee to get married…
Private law: contract, tort, property, family, company
-​ Contract: between 2<= parties
…

SUBSTANTIVE (LUẬT NỘI DUNG) VS PROCEDURAL LAW (LUẬT HÌNH THỨC, TỐ

TỤNG)

Sub: civil code, labour code, law on commerce

Procedural: civil Procedural code (Bộ luật tố tụng dân sự),
Commercial arbitration law: both substantive and procedural

COMMON LAW (THÔNG LUẬT/ HỆ THỐNG PHÁP LUẬT ANH MỸ) VS CIVIL LAW
(DÂN LUẬT/ HỆ THỐNG PHÁP LUẬT CHÂU ÂU LỤC ĐỊA)

Civil law (Criminal): an area of law

Civil law here: a legal system
Other legal system:
-​ Islamic law (Sharia): luật đạo hồi

COMMON LAW

-​ The judge can make law in this system

-​
Parliament Judge

Statute (Statutory law) Common law

When the two conflict, Statutory law prevailed

-​ The judge can make law by making the precedents (án lệ)
-​
Precedent Judgement/Decision (bản án/ quyết
định của tòa án)

The former case may be obligable for Outcome of a particular case

the future cases
-​ Precedent can be divided in 2:
Ratio decidendi Obiter dictum

Binding Not binding

Reason for how the judge apply
the law, set the basis for the future
case

-​
 -​
-​ * segregation: separate but equal
-​ Pros&cons of precedent:
Pro Con

Consistency: lower court follow the Complexity

higher court
Efficiency: save time Inflexibility: must follow the doctrine,
Flexibility: can made adaption if hard to change, law is evolving
necessary
Fairness and Predictability: similar Judicial discretion: judges might be
case goes through similar process of constrained, limit creation…
judgement
-​ Precedent in VN:
-​ Make case law to ensure everyone is aware of the case.

●​ If there is no law applicable for the case, may use:

1.​ Customary law
2.​ Analogy law
3.​ Basic principles of the Civil law
4.​ Equity (lẽ công bằng)

Customary practice

Analogous law (Áp dụng tương tự pháp luật)

There is a quite similar law for the issue, but not directly mentioned in law: law that
applied
Basic principles of the Civil law

CIVIL LAW
(Pháp điển hóa) all the code are included in one code

Precedents in civil law is quite limited compared to the common law

Legal scholar: persons who do a lot of research in that field, such as university
professors, lawyers…
(Not really the case of VN)

LEGAL NORM (QUY PHẠM PHÁP LUẬT)

Law might consist of many legal norms

1.​ Hypothesis: Giả định

-​ compulsory
-​ Describes the circumstances in which the disposition or sanction of the norm
come into action
2.​ Disposition: Quy định
-​ compulsory
-​ Indicates the rights and duties of the participants in relations arising under the
circumstances envisioned in the hypothesis
3.​ Sanction: Chế tài
 -​ Defines the the consequences for persons who violate the prescriptions of a
particular norm
-​ Not always
Ex:

Hypo: taking a person into, or holding him in, custody

Dispo: shall be provided by the statute

-​
 CHAPTER 2: BUSINESS CONTRACT
1.​ Definition:

Example: rent contract, employment contract, when buy things: contract,

agreement to buy thing and to sell thing

-​
2.​ Essence of contract

-> The enforcement of the contract

- the parties autonomy: any agreement but not contrary to the law.
3.​ Classification of contract

Bilateral: Hợp đồng song vụ Unilateral: Hợp đồng đơn vụ

Each party has an obligation to each Only one party has an obligation
other

Principal: Hợp đồng chính Ancillary: Hợp đồng phụ

Happen when sign 2 different contracts, one will be the main one, the other will be the
sub one
Ex: Credit/ Loan contract - Security Contract (Mortgage: Thế chấp, Pledge: Cầm cố,
Guarantee: Bảo lãnh)

A contract for the benefit of a third A conditional contract

person
Ex: parents buy insurance for their
children

None of the parties have to perform until

the occurrence of a specified event.
Ex: Insurance is not a conditional contract
Donate organ contract: happens after you
die

II. COMMERCIAL LAW

1.​ Parties

Business entity:
-​ Can be individuals, economic organization
-​ Conduct commercial activities regularly, independently
-​ Business registration:
+​ Business household (Hộ kinh doanh cá thể) ->District people's committee
+​ Company: The department of planning and investment: Sở kế hoạch và
đầu tư (In HCM, Business Registration office)
 ●​ University/ School is not a business entity because it is a education organization,
not a commercial organization
●​ CEO is not a business entity because not working independently, is hired by the
company
●​ Branch of a company is not bc not independent
●​ Agency is independent
2.​ Objects: Goods, service

(Art 3.2 Law on commerce 2005)

●​ Land is not considered good in VN, bc we not own the land, we just sell the land
use right
3.​ Form

-​ Verbal/Oral form does not have evidence. Ex: Buy food in a store…
-​ Written form
-​ Specific act: Hành vi cụ thể
+​ Ex: go to the grocery store, pick the items, make the payment without
talking
-​ Clause 2: In some specific case, must be written form

-​
* data message: thông điệp dữ liệu (any social media)
-​ Governing law
+​ Specific law (if applicable) > Commercial law > Civil code
+​ Which law is prevail depend on what nature of the contract
 OFFER AND ACCEPTANCE
(ĐỀ NGHỊ GIAO KẾT HỢP ĐỒNG VÀ CHẤP NHẬN ĐỀ NGHỊ)
1.​ Offer

+​ CISG: art14 ->24

Vietnam civil code CISG

offe determined party or the public (a group of people but Determined person
ree not identified)
Co none The quantity
mp The price
uls The good
ory

(Inquiry letter: Thư hỏi hàng, not an offer)

-> an offer (there is a time for this to be valid)

●​ Display good with a tag of price: not an offer (invitation to negotiate); it is just
offer when you make the payment
 Withdrawal (Rút lại chào hàng) Revocation (Hủy chào hàng)

When w/r your ofter no longer in valid

tim The time for withdraw is limited The time for revocation is longer, it lasts until the
e The offer may came after the withdrawal offeree accepts the offer.
Ex:
-​ send offer by normal delivery, send withdraw
by express delivery
-​ If send by email, no matter if the offeree read
it or not, it already arrived->cannot withdraw

CI
S
G

V
N

2.​ ACCEPTANCE
VN CISG

-> “mirror image” rule: accept entire content; if

amend-> new offer

Article 19
 Can accept with some adjustments but not
materially(significantly) alter the terms
-​ Silence = Rejection (but there are exceptions)

-​
-​ Silence still means reject, bc dont accept with any term of offer

VALIDITY OF CONTRACT

1.​ Parties
Năng lực pháp luật dân sự Legal capacity Năng lực hành vi dân sự Civil Capacity
-​ Start: birth; end: death (for legal entities: from born to dissolve)
-​ In some case, there are limitation
-​ Legal entity (Pháp nhân): organization only, but not every organization

+​
+​ Evidence for lawfully establishing: authority, government, prime minister,
đk kinh doanh
+​ Limited Liberties Company: people council(hội đồng thành viên)
(chairman) > Director > (Controlling board)
+​ Joint Stock Company: General Meeting of Shareholders (GMS)
(Đại hội đồng cổ đông) > Board of management (Hội đồng quản trị)
> Director > (Controlling Board)

+​
+​ (d): cannot sue an organization, can only sue legal person/legal individual
Legal capacity Civil capacity

According to law Mostly Depend on age

*Minor:
-​ 15 - Under 18
-​ Age 6 - Under 15
-​ Under 6

-​
*Adult:

-​
-​ Exception:
-​ Art22: lost of capacity of civil act
-​ Art23: has difficulty in awareness
-​ Art24: restricted capacity (Addicted to drug, alcohol)
-​