Tài liệu legal lý thuyết

STATE Organization Legislative power issue laws (Lập pháp) Executive power enforce laws (Hành pháp) (bắt buộc phải nghe) Judicial power interpret adjudicate disputes (Xét xử) Pham Nhat Khanh Chi Abs.

Pham Nhat Khanh

Chi

Political Power Legislative power: issue laws (Lập pháp)

Executive power: enforce laws (Hành pháp) (bắt buộc phải

nghe)

Judicial power: interpret & adjudicate disputes (Xét xử)

Society within the certain territory Govern

- state powers belong to citizen

- king/queen head of the state (ex: UK, Thailand, Japan )

Presidential(US): head of state = head of gov/executive body

- People -> Parliament & President

- President -> Cabinets

Parliamentary(VN): head of state # head of gov/executive body

- People -> Parliament

- Parliament -> State organs

Semi-presidential(Russia, France): head of state = head of gov/executive body

- People -> Parliament & President

- Parliament -> Cabinets

1 When mention is made to a state, we are referring to _

A The organizations holding state power

can find the

How to perform law

(Base on legal norms)

Violates (breach of law)

- Fail to perform law

- Liability capacity: age + cognition

- Fault (intentional or unintentional)

Sanctions

- Civil law -> Civil sanction (fine, compensation )

- Administrative law -> Administrative sanction (fine, )

- Criminal law -> Criminal sanction (jails, )

- Labor law -> Labor discipline (fire, )

“Everyone has the obligation to pay taxes in accordance with the law ”

 Hypothesis: Anyone who unintentionally causes the death of another person

 Disposition: Không được nêu rõ và ở dạng quy định ngầm => Quy định trong trường hợp này là không được vô tình gây ra cái

chết của người khác

 Sanction: shall be sentenced to between 6 months and five years of imprisonment

 Disposition can imply in Hypothesis

“Any person who manufactures or deals in counterfeit medicines for treatment or prevention of diseases shall face a penalty of 02 -

07 years' imprisonment ”

 Hypothesis: Any person who manufactures or deals in counterfeit medicines for treatment or prevention of diseases

 Disposition: Không được nêu rõ và ở dạng quy định ngầm => Quy định trong trường hợp này là không được buôn bán thuốc giả

để chữa hay phòng bệnh

 Sanction: shall face a penalty of 02 - 07 years' imprisonment

“Before overtaking, a vehicle shall give a signal by means of light or horn; from 22.00 hrs to 5.00 hrs in urban centers & populous areas,only light signals can be used for this purpose”

 Hypothesis: Before overtaking, a vehicle

 Disposition: shall give a signal by means of light or horn; from 22.00 hrs to 5.00 hrs in urban centers & populous areas, only light

signals can be used for this purpose

Pham Nhat Khanh

Pham Nhat Khanh

Chi

CONSTITUTION

Supreme law

Fundamental rules

- Other laws have to details the rules

- Other laws have to comply with the rules

- All people have to comply with the rules

Citizen’s rights & obligations

• Legislative: issue (NA)

• Executive: enforce (Gov)

• Judicial: interpret, adjudicate (court, prosecutions)

State organs

Local people: >= 18 elect people’s council

Elect at the same level

Report

CENTRAL LEVEL National

National President

Government

LOCAL LEVEL People’s

Provincial people council -> Provincial people’s committees District people council -> District people’s committees Commune people council -> Commune people’s committees

National Assembly (NA)

 Legislative body

 Highest representative body of people

 Highest state power organ

 Amnesty

 Duration: 5 years (normally)

 Deputies: <=500 (elected directly by the people)

 Decision: majority rule (> 1/2)

Except:

Make & amend the constitutions, dismiss a deputy, decide on shortening or extending the duration of the national assembly

 (>= 2/3) deputies’ approval

National President (NA’s member)

 Head of the state

 Represent VN & Promulgate/Announce law, constitutions & ordinances

 Grant pardon

 Duration: follows the NA’s duration

Standing Committees of NA

 Permanent body

 Interpret laws, constitutions & ordinances

 Number of members will be decided by NA

 Members can’t be government members at the same time

 Duration: follows the NA’s duration

Government

 Executive body of NA

 Head of government: Prime Minister

 Highest executive body / state administrative body

 Government cabinets: prime minister + 4 vice-prime minister

+18 ministers + 4 minister-levels

 draft the law

Court

 State judicial body (adjudicate disputes)

 2 levels of adjudication: first instance and appellate courts

 4 structures: supreme, high, provincial & district

 Protect the socialist legislation, the socialist regime, human

and citizenship rights.

Prosecutions

 State judicial body (supervise courts, prosecute criminals )

 4 structures: supreme, high, provincial & district

 Protect the socialist legislation, the socialist regime, human and citizenship rights.

People’s council

 Local state power body

 Representative body of local people

 Supervise compliance with the constitution and law in its locality

People’s committees

 Executive body of local people’s council

 Local administrative organs

Notes

 Highest state power => citizens

 Highest state power body/organs => National Assembly

 Communist Party doesn’t have state power

Pham Nhat Khanh

Chi

Distinguish Amnesty & Pardon

Amnesty (General amnesty)

Pardon (Special amnesty)

Subject Group of crimes

(all individuals in that group)

Specific individuals

When granted Before or after convicted by a final

judgement

After convicted by a final judgement

Legal outcome Individuals will no longer be criminals and

Nature Absolution and forgetfulness of an offence Release from prisons ahead of time people

serving imprisonment penalty

Pham Nhat Khanh

Chi

18 Ministers or

 Ministry of National Defense

 Ministry of Public Security (bộ công an)

 Ministry of Foreign Affairs

 Ministry of Justice

 Ministry of Finance

 Ministry of Transport

 Ministry of Construction

 Ministry of Education and Training

 Ministry of Agriculture and Rural Development

 Ministry of Industry and Trade

 Ministry of Planning and Investment

 Ministry of Health

 Ministry of Science and Technology

 Ministry of Natural Resources and Environment

 Ministry of Information and Communications

 Ministry of Home Affairs

 Ministry of Labor, War Invalids and Social Affairs

 Ministry of Culture, Sports and Tourism

4 head of ministerial level agencies

 Government Inspectorate (Thanh tra chính phủ)

 State Bank of Viet Nam (Ngân hàng nhà nước VN)

 Committee on Ethnic Minority Affairs (Uỷ ban dân tộc)

 Government Office (Văn phòng chính phủ)

Organs have the right to issue legal documents

National assembly Constitution, Act, Resolution (hiến pháp, luật, nghị

quyết)

Standing committee of the national assembly Ordinance, Resolution (pháp lệnh, nghị quyết)

National president Order, Decision (lệnh, quyết định)

Ministers and head of ministry – level bodies

(Bộ trưởng, Thủ trưởng cơ quan ngang bộ)

Circular (thông tư)

Justice council of the supreme people’s court

(Hội đồng thẩm phán TANDTC)

Resolution

Chief justice of the supreme people’s court &

Chief of the supreme people’s procuracy

(Chánh án TANDTC & Viện trưởng VKSNDTC)

Circular

State auditor general

(Tổng kiểm toán nhà nước)

Decision

Only govern

One site has state power • State organ – State organ ( Gov- People’s committees )

• State organ – People (administrative organs - citizens)

• Inside state organ (prime minister- ministry of transport)

Content: State administrative

management activities

Nature: Command - obedient

Handle

Administrative Violation

Fail to perform administrative law (not

Individual Cognition: no mental issues

Be aware or have to be aware of your acts

• Emergency: violate law to prevent damages threatening

• Unexpected event: sudden event caused violations

• Force majeure event: happened event, violate to save your time

• Legitimate defense

All violation

Administrative sanctions Administrative handling measures(*)

(for Vietnamese people only)

Principle

ADMINISTRATIVE HANDLING MEASURES (*)

Forms Education At Commune Reformatory Center Compulsory Education Detoxification Centers

Principle apply for individuals violating legal regulations on security, order and social safety

- Women or persons who are alone, nursing under 36-month child

How long will

punishment be applied

for

Time Limit for Applying 03 – 12 months 06 – 12 months 1 year 03 months

Principles of applying administrative sanctions

 One violation will have applied only one

principal sanction

 One or several additional sanctions can be

On 12th August 2016, Huyen, 16 years old, drove her motorbike with the registered number 61B5 – 3981  from Thu Dau

to Di An, Binh Duong In front of Ong Cu temple, Thanh who drove an electric bicycle  collided with Huyen when he tried

to overtake her The collapse caused Thanh spinal cord injuries (equal  to 8% of health damages) and caused Huyen’smotorbike to knock on another motorbike nearby within 1  meter which was droved by Khanh, 21 years old.  On 12thDecember 2016, the head of Di An police station issued a decision to apply administrative  sanctions on Huyen sinceshe caused the accident with Khanh.  As is not happy with the decision, Huyen sued the Di An police station to Di Anpeople’s court 

Which of the following relations will be governed by administrative law?  

a Thanh drove into Huyen’s motorbike 

b The head of Di An police station issued a decision to apply administrative sanctions on Huyen

c Di An people’s court settled Huyen’s lawsuit petition  

d All of the above 

Which kind of fault does Huyen commit when she drove her motorbike into Khanh?

a Direct intentional fault 

b Indirect intentional fault 

c Unintentional fault due to overconfidence 

d Unintentional fault due to negligence

Which of the following sanctions may Huyen face for her administrative violations?

a Caution 

1/ Liability capacity

+ Individual Cognition capacity: no mental issue

Age: ≥14 - < 16 (crimes: very serious, extremely serious & intentional crime ) ≥ 16 (all crimes)

+Organization (legal person): Commercial - conduct business (not educational or medical org) Some crimes that usually violates environment or economic

2/ Not fall under some cases

+ Emergency circumstances + Legitimate defense (phải là tự vệ ngang hàng) + Risk in research

+ Criminal capture (only fringe body-not death) + Obey commander’s order(military)

3/ At fault

+ Intention Aware of act

Aware of consequences Wish the consequences: direct intention Not wish consequences: indirect intention

+Unintention aware of act, not aware of consequences => due to over confidence Not aware of act, not aware of consequences => due to negligence

Pham Nhat Khanh

Chi

CRIMINAL LAW Criminal violation = Crime - act described in penal code

 Fine

 Caution (less serious)

 Fine (less serious) >= 16

 Life imprisonment (not juvenile < 18 )

 Death penalty (not for pregnant, woman is nursing < 36-months old baby, juvenile <18, >= 75 years old, person who corrupted but return 3/4 of the corrupted property)

 Unexpected events

 Other cases in Art.29

Punishment

Individual Organization

>=14-<16: 1⁄2 term - max 12 years

>=16-<18: 3⁄4 term - max 18 years

>=18: full penalty – max 20 years ( for 1 crime) & max 30 years (for many crimes)

Liability

Crimes

Not fall under exceptional cases

 Caution (less serious)

 Fine (less serious) >= 16

 Life imprisonment (not juvenile < 18 )

 Death penalty (not for pregnant, woman is nursing < 36-months old baby, juvenile <18, >= 75 years old, person who corrupted but return 3/4 of the corrupted property)

 Expulsion: foreigner only

Less serious

Serious

Very serious

Extremely serious

Pham Nhat Khanh

Type of crime

Time limit of prosecute:

Less serious: 5 years

Serious: 10 years

Very serious: 15 years

Extremely/ particularly serious, life imprisonment, death penalties: 20 years

Note:

Time of imprisonment

Pham Nhat Khanh

Chi

- The time limit is not applicable for crimes listed at Article 28, the penal code 2015

1 What of the following may be a crime? 

A A 14-year-old boy had sexual intercourse with a 12-year-old girl  

B As requested, a 45-year-old woman bought some sleeping pills for her close friend to committee  a suicide 

C A 25-year-old man who has Down syndrome killed his wife  

D None of the above 

2 Which of the following may bear criminal liability for the crime?  

A A 35-year-old woman who swapped her two-year-old daughter with her friend’s two-year-old son. 

B An organization which spread false information to make their competitor’s business go down. 

C A 13-year-old boy transported 5 million dong of fake money  

D None of the above

3 Who of the following will not be subject to a death penalty?  

A A 34-year-old woman nursing a 4-year-old toddler  

B A 79-year-old man  

C A full 18-year-old boy 

D All of the above 

Case study: 

On 29/10/2016, Quan 17 y.o, asked to borrow from his brother, Thang, 14 y.o, a motorbike after a party.  Thang agreed tolet Quan use his motorbike but he requested Quan to return it early Quan was not happy  with Thang’s request They hadarguments In the heat of passion, Quan picked up a knife from his  house to threaten Thang After being dissuaded bytheir relatives, Quan and Thang went back to their  homes When arriving at home, Thang heard his girlfriend screaming as

Quan threatened to kill her Thang then picked up a stick on the floor and hit Quan’s head until he passed out and walked away When  Thang came back to check on Quan, he found Quan dead.  

1 Which kind of fault does Chinh commit in this

case?

a Direct intentional fault

b Indirect intentional fault

c Unintentional fault due to

over-confidence

d Unintentional fault due to

negligence

2 Which crime does Chinh commit in this case?

a The crime regulated in article 123 of the penal code 2015

b The crime regulated in article 125 of the penal code 2015

c The crime regulated in article 126 of the penal code 2015

d The crime regulated in article 128 of the penal code 2015

3 Which type of crime does Chinh commit in this

case?

a A less serious crime 

b A serious crime 

c A very serious crime 

d An extremely serious crime 

4 What is the maximum penalty which Chinh may face if he is 76 years old?

b) Murder of a person aged under 16;

c) Murder of a woman with the full knowledge of her pregnancy;

d) Murder of a law enforcement officer in performance of his/her official duties or murder of a person because of his/her official duties;

dd) Murder of the murderer's grandparent, parent, caregiver or teacher;

e) Murder committed right before or after committing a very serious crime or extremely serious crime;

g) Murder for the commission or concealment of another crime;

g) Murder for taking the victim's body parts;

i) Brutal murder;

k) Murder by taking advantage of the murderer's profession;

l) Murder using a method capable of killing many people;

m) Contract killing;

n) Murder of a gangster-like nature;