FUNDAMENTAL

LEGAL CONCEPTS
Hieu Nguyen
16 February 2023
HOUSE KEEPING!
 ◦ I am Hieu Nguyen.
◦ Admitted as a lawyer in both Vietnam and Australia.
◦ 2010 – August 2021: Senior Associate – Allens
Linklaters
◦ September 2021 – December 2022: Blackstone –
Associate General Counsel – Gen X Energy (a
portfolio company of Blackstone – the largest
investment firm in the US)
Introduction ◦ Current position: Partner at Construction Law Vietnam
Counsellors (CLVN), focusing on Dispute Resolution
and International Arbitration
◦ Hieu.Nguyen@clvn.vn or
Hieu.Nguyen@nguyendhieu.com
◦ 0934626189
◦ Vietnamese Law Student Chat Room – welcome!!!
◦ Any question please email or text!
 ◦ Class coordinator – group email?
◦ Materials and books
◦ Slides in English / lecture in Vietnamese
House ◦ Mid-term examination

keeping ◦ Presentation?
◦ Assignment with essay style?
◦ Studying method: pre-reading and in-class discussions
◦ Just drop me an email should you need anything!!!
COURSE
AGENGA
 Contract

• Common law of contract

• Vietnamese law of contract

Corporate law

International
• Common law of corporation
• Duties of company officers
• Vietnamese law on enterprises

Business Law Banking and finance and securities market (brief)

Project financing law

International arbitration
 FUNDAMENTAL
LEGAL CONCEPTS
 Learning Objectives

After studying this section, you should be

able to:
• Recall the elements of a simple definition of law as
well as the various categories of law, justifications
for law and reasons for law’s dynamism
WHAT IS ‘LAW’?
 Is the law no
What is a ‘law’
more than a
and how does it
mass of rules or
differ from
can laws be
other types of
Fundamental rules?
categorised
logically?
Questions about
Law Why does the
Why are laws
law keep
necessary?
changing?
 This is a question that is much more difficult to answer than you
might think!

It is a question that legal theorists and philosophers have been

debating for hundreds of years, and there is relatively little consensus
about the answer.

Here are just a few of the many definitions and descriptions of law
that have been proposed over the years.
What is ‘law’? • ‘Law is a system of enforceable rules governing social relations and legislated by a
political system.’ — Stanford Encyclopaedia of Philosophy
• ‘Law is the essential foundation of stability and order both within societies and in
international relations.’ — J William Fullbright
• ‘Law [is] an ordinance of reason for the common good, made by him who has care of the
community.’ — Saint Thomas Aquinas
• ‘The law is but words and paper without the hands and swords of men.’ — James
Harrington
• ‘Law and order exist for the purpose of establishing justice, and . . . when they fail to do
this purpose they become dangerously structured dams that block the flow of social
progress.’ — Martin Luther King, Jr
• ‘The law is an ass, an idiot . . .’ — Charles Dickens
• ‘I am the law!’ — Judge Dredd
 ◦ The law is a system of rules made by the
state/government and enforceable by
prosecution or litigation.
A clear and ◦ This definition is appealingly
straightforward, but it is of course an
simple incomplete one.
◦ It disregards questions of justice, ethics
definition of and politics, and focuses upon what law
is, without considering whether it is fair
law or right and without considering the
political origins and implications of law.
◦ We are going to explain each of the
elements of this simple definition in turn.
 ◦ Most people who are asked to attempt to define law use the word
‘rule’ somewhere in their definition. A law is a type of rule. A rule is
a statement of behavioural expectation; it tells people how they
should or should not behave. There may or may not be negative
consequences that flow from failing to comply with the rule.
◦ There are of course many different types of rule, including:
◦ the rules of a game (e.g. the rules of poker or cricket),
◦ the rules of an organisation (e.g. the membership rules of a football
association or the internal governance rules of a corporation),
◦ moral rules (e.g. the rule that you should not tell lies),

A system of ◦ social rules (e.g. the rule that you should say ‘please’ when asking
for something),
◦ mathematical rules (e.g. the rules regulating multiplication and

rules division), and

◦ traffic rules (e.g. the rule that you should drive on the left-hand side
of the road).
◦ Not all of these rules are laws. Traffic rules can be categorised as
laws, but the rules of cricket cannot.
◦ The difference between legal rules (i.e. laws) and non-legal rules is
not that only legal rules incur penalties; there are penalties incurred
if you breach the rules of a game or of an organisation, and even the
disapproval that follows from a breach of a social or moral rule can
be seen as a type of penalty.
◦ The most appropriate way to distinguish between a legal rule and a
non-legal rule is to consider the source of the rule.
 ◦ This is the main difference between a legal and a non-legal rule.
◦ Legal rules are made by the state.
◦ Rules made by persons or organisations other than the state cannot be said to
be laws.
◦ The term state is a very common legal term.

Made by the
◦ In lower case, the term ‘state’ refers to the government generally.
◦ In the context of our simple definition of law, the term has the former
meaning: a law is a rule made by the government.

state/governm ◦ The words ‘state’ and government are often used interchangeably, although they
do not mean precisely the same thing.

ent
◦ The word ‘government’ refers to the group of individuals and institutions
charged with constitutional authority to make, administer and interpret the
law.
◦ The word ‘state’ can refer to either the government or to the governed
territory (e.g. the State or the nation) as an organised political community.
◦ Another term used in similar contexts is sovereign.
◦ A sovereign is a supreme ruler of a state. In a traditional monarchy, the king
or queen (or monarch) is the sovereign.
 Enforceable by prosecution or litigation

If the legal rule is a rule of criminal law, a

Legal rules are backed by the threat of If the legal rule is a rule of civil law, a
person who contravenes the rule may be
punishment or coercion. If a person does person who contravenes the rule may be
formally accused by the state of having
not obey a legal rule, there are legal sued by the person they have harmed, a
committed a criminal offence, a process
consequences. process known as litigation.
known as prosecution.

• For example, if your client contravenes • For example, if your client contravenes
the criminal law prohibiting assault by the law of contract by failing to pay for a
punching a stranger in the nose, they may car that they have signed a contract to
be charged and prosecuted, and if they are purchase, they may be sued by the seller;
found guilty they will be subjected to a if the seller ‘wins’ the trial, your client
penalty such as a fine or imprisonment. may be obliged to provide a remedy to
the seller such as the payment of
monetary compensation.
 The categories of law

Substantive and procedural law,

Public and private law,

Civil and criminal law, and

Domestic and international law.

SUBSTANTIVE
AND
PROCEDURAL
LAW
 Public and private law
Public law is concerned with the relationship between the individual and the state. It is the set
Private law is concerned with the relationships between persons within the community. It is
of legal rules that establish the rights and obligations of the individual when dealing with the
the set of legal rules that establish the rights and obligations of individuals when dealing with
state and the rights and obligations of the state when dealing with the individual. Examples of
or otherwise interacting with other individuals. Examples of subcategories of private law
subcategories of public law include constitutional law, administrative law, criminal law and
include tort law, contract law, property law and company law.
taxation law.
• Constitutional law regulates the relationship between the various arms of government and • Tort law provides a remedy for those harmed by the acts or omissions of another. A ‘tort’ is a
between the government and its citizens, and grants legal rights and civil liberties to citizens. civil wrong other than a breach of contract. The range of recognised torts includes trespass,
If your client is accused of having committed a criminal offence and you want to argue that negligence, defamation, nuisance and passing off. If your client is injured or suffers loss as a
the government did not have the power to make the law your client has been accused of result of another person’s carelessness you could use the law of torts to seek a remedy for
contravening, you could use constitutional law in establishing your client’s defence. your client from the other person.
• Administrative law regulates the administrative activities of the government. It allows • Contract law is the law regulating agreements and promises. A ‘contract’ is a legally
citizens to hold administrative bodies such as local governments and government enforceable agreement. If your client has made an agreement with another person, or they
departments accountable for their actions, and gives citizens the right to seek judicial review have relied upon a promise made by the other person, and the other person has not done
of administrative decisions. If your client has applied to a local government for permission to what was agreed or what they promised to do, you could use the law of contract to seek a
build a hotel and the approval has not been granted, you could use administrative law to remedy for your client from the other person.
challenge the decision. • Property law regulates property rights in things (personal property) and land (real property).
• Criminal law establishes criminal offences and the penalties for their infringement. If your The law of personal property includes intellectual property law (the law regulating
client has physically assaulted another person, that person could commence legal copyright, trade marks, patents and so on). Real property law includes the rules regulating
proceedings against your client under the law of tort (see below), but your client could also title to land, mortgages, leases and licences. If your client wants to buy a house, it is real
be prosecuted by the state for having committed a crime, and a hearing would be held to property law (as well as contract law) that regulates the rights and obligations of the parties
determine your client’s guilt and the extent of their punishment. to the transaction.
• Taxation law is the law regulating the administration and collection of tax. If your client is a • Company law regulates the establishment, management and dissolution of corporations. If
business owner, they are obliged to pay a range of taxes including income tax, goods and your client instructs you to set up a company for them or advise them about their legal
services tax, fringe benefits tax and payroll tax. responsibilities as a director, it is company law to which you will turn for guidance.
 Criminal law establishes criminal offences
and the penalties for their infringement. In
a criminal trial, the dispute is between the
state, represented by the prosecutor, and
the individual.
Criminal and
civil law
Civil law equates with private law. In a
civil trial, the dispute is between two or
more individuals.
Domestic and international law
Domestic law (or municipal law) is the law that regulates persons within a particular jurisdiction such as a nation or a
State.

Public international law is the set of rules regulating the relationships between states.
• There is no international government, so the sources of public international law are customs and, increasingly, treaties and conventions between states.
• International treaties and conventions are not automatically law; strictly speaking they are not legally enforceable in Vietnam unless they are put into the
form of legislation and passed by parliament.
• Institutions administering public international law include the United Nations, the International Court of Justice, the International Labour Organization, the
World Trade Organization and the International Monetary Fund.

Private international law (sometimes referred to as ‘conflict of laws’) is the set of rules that determine which state’s laws
should be applied to resolve a dispute between people in different states.
• The question may be settled on the basis of common practice or upon the terms of the agreement between the parties.
• With the development of the internet and the growing ease with which people can engage in international transactions, this is becoming an increasingly
important area of law.
THE NEED FOR LAW
 The need for law

1 2 3 4 5 6
Resolving Maintaining Reinforcing Helping the Stabilising the Preventing the
disputes social order community disadvantaged economy misuse of power
values
THE CHANGING LAW
 Political change:
• Sometimes the law changes because of a change in government. Different political parties have different
policies, and, when a new political party assumes government after an election, it sets about implementing
their policies by changing the law.

Correcting errors:
• Sometimes laws are not applied or interpreted in the way in which the lawmakers intended. Sometimes
lawyers find loopholes in the law enabling them to circumvent the intended effects of the law. Lawmakers
occasionally have to vary or ‘amend’ a law to remedy its defects.

Changing values:
• Laws are often intended to reflect community values. Such values change with time, so the law must be

The changing changed to keep pace with them. For example, the law once treated married women very differently from the
way it treats them today. A married woman was not permitted to own property in her own name and the law
did not recognise any ability on the part of a married woman to enter into contracts in her own name. This

law
was a reflection of the dominant values within the community at the time. These values have of course
changed, and the law today treats married women in the same way as everyone else.

Lobby groups:
• Sometimes the law is changed as a result of pressure exerted upon the government by certain groups within
the community. These groups, sometimes called lobby groups, include employers, unions, students,
environmental groups, churches and charities. As a result of a perceived inequity or injustice in the existing
law, a lobby group or groups may call for the law to be changed.

Changing technology:
• A change in technology may lead to a change in the law. Traffic laws became much more complex following
the invention of the car, and air traffic regulations developed following the invention of the aeroplane. One
of the most rapidly growing areas of law today is internet law, an area of law that did not exist 20 years ago.
THE SOURCES OF
LAW
Common law countries

Legislation

• ‘Legislation’ is the law made by parliament.

Case law

• Case law consists of the recorded decisions of judges.

• It is often referred to as ‘common law’.
 The doctrine of precedent
One of the most important mechanisms in achieving a degree of
consistency in case law is the doctrine of precedent, sometimes referred Rationales for the doctrine of precedent:
to by its Latin name stare decisis.
• This doctrine requires that a judge who has to decide a question of law • Coherency. The doctrine ensures a degree of coherency in the law by
and who knows that the question has already been considered by an requiring judges to make decisions that are consistent with the
earlier court must decide the question in the same way as was done decisions of other judges.
previously. • Certainty. The doctrine ensures that judicial decisions are somewhat
• As well as providing consistency, this practice makes the law predictable, which in turn ensures that case law acts as a clear guide
relatively predictable. for the conduct of individuals. Citizens can organise their affairs
• It is based upon the notion that justice requires that similar decisions confident that they can anticipate the legal consequences of their
be made in similar situations, and similar problems should have actions.
similar outcomes. • Equality. The doctrine treats like cases alike. If one person’s legal
issue is resolved in a particular way, another person with the same
issue is treated by the courts in the same way.
• Efficiency. It is not necessary for every court to ‘reinvent the wheel’
when resolving a particular legal issue. They can instead look to what
other courts have done in the past.
• The appearance of justice. The doctrine promotes the appearance of
justice by ensuring that judicial decisions are impersonal and unbiased
rather than based upon the personal views and biases of individual
judges.
 ◦ 1. The Constitution.

◦ 2. Codes and Laws, Resolutions of the National Assembly

◦ 3. Ordinances, Resolutions of Standing Committee of the National Assembly; Joint

Resolutions between Standing Committee of the National Assembly and Management
Board of Central Committee of Vietnamese Fatherland Front

◦ 4. Orders, Decisions of the President.

◦ 5. Decrees of the Government; Joint Resolutions between the Government and

Management Board of Central Committee of Vietnamese Fatherland Front

Vietnam – Law ◦

◦
6. Decision of the Prime Minister.

7. Resolutions of Judge Council of the People’s Supreme Court.

on Promulgation ◦ 8. Circulars of executive judge of the People’s Supreme Court; Circulars of the Chief
Procurator of the Supreme People’s Procuracy; Circulars of Ministers, Heads of

of Legal
ministerial agencies; Joint Circulars between executive judge of the People’s Supreme
Court and the Chief Procurator of the Supreme People’s Procuracy; Joint Circulars
between Ministers, Heads of ministerial agencies and executive judge of the People’s

Documents No.
Supreme Court, the Chief Procurator of the Supreme People’s Procuracy; Decisions of
State Auditor General.

◦ 9. Resolutions of the People’s Councils of central-affiliated cities and provinces

80/2015/QH13
(hereinafter referred to as provinces).

◦ 10. Decisions of the People’s Committees of provinces.

◦ 11. Legislative documents of local governments in administrative - economic units.

◦ 12. Resolutions of the People’s Councils of districts, towns and cities within provinces
(hereinafter referred to as districts).

◦ 13. Decisions of the People’s Committees of districts.

◦ 14. Resolutions of the People’s Councils of communes, wards and towns within districts
(hereinafter referred to as communes).

◦ 15. Decisions of the People’s Committees of communes.

THANK YOU!