Giải đề Pháp luật đại cương cuối kỳ FTU

Untitled PART B SHORT ANSWER QUESTIONS 1 Provide 2 examples in which the right to dispose leaves the owner? Eg  Transfer ownership rights +you owned an old TV, when you sold it to someone, it meant t.

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PART B: SHORT ANSWER QUESTIONS

1 Provide 2 examples in which the right to dispose leaves the owner?

Eg

 Transfer ownership rights: +you owned an old TV, when you sold it to someone, it meant that, you had transferred the ownership rights of the TV to them The buyer was the new owner

+ grandparents wrote a will to give the land to their children after death

 Renounce ownership rights: you owned a phone and your ownership rights of the phone was renounced when you threw your phone away and you did not care about who would pick it or the new owner of the phone

 Right to use: Gasoline for motorcycles is a consumable object, so when you use it, you are also disposing it

 Destruct the property: You break up your old house

Same questions: Provide 2 examples in which the right to use leaves the owner (189-109)

Eg You own a villa in Dalat

 exploit the usage of property: You live in that villa

 enjoy the yield derived from property:

 enjoy the income derived from property: You rent the house to anyone who is in need and receive the money

Eg Right to possess:

A saw a cow stray into his garden Mr A knew it was Mr B's property but Mr A still deliberately locked the cow in the cage As such, Mr A had possessed the property (i.e., the possession of the cow), but Mr A had absolutely no right to possess the cow

2 If you want to start up an enterprise, which of the following are you choosing:

(1) a sole properietorship

(2) a limited liability company

(3) a joint stock company

Explain your choice!

Does your preference differ if you are now an employee in the enterprise instead?

 If I want to start up an enterprise, I will choose to establish a limited liability company because

of less risk And as we know the most notable advantage of a limited liability company is that the owner of it has full authority to make decisions on all matters related to the company’s operation Besides, the owner is responsible for the debts and other property obligations of the enterprise to the extent of the charter capital of the enterprise as prescribled in Art 74 In other words, the owner of a limited liability company has to take limited responsibility

 If I am an employee in the enterprise now, I will go for a joint stock company instead This is because the ability to raise capital of a joint stock company is very high through the issuance of shares to the public Additionally, the capital structure of a joint stock company is very flexible, which allows many people to contribute capital to the company Moreover, the risk for my business decreases as a joint stock company has at least three shareholders and they all take responsibility to operate the company and solve all problems related to the company

Downloaded by K59 PHAM CHI MAI (k59.2013150032@ftu.edu.vn)

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3.Whenever being drunk, A returns home and sells whatever in the house he sees After so many times of explanation and advice, his wife B, asks People’s Committee where they live to restrict his capacity by informing in public that he has capacity restricted Is what B wants to do legal? Advise B

According to Article 24.1, Civil Code 2015

In this case, whenever A is drunk, he returns home and sells whatever he sees in the house It means that A worsens material situation of the family after excessive psychotropic substances consumption As a result, his wife B (person with related rights or interests) has the right to request the Court to declare A has limited legal capacity, but has no right to request the People's Committee

to inform the public about A's limited legal capacity In other words, B’s asking People’s Committee where they live to restrict her husband’s capacity by informing in public that he has capacity restricted is illegal It is advisable that B should send a request to the Court to restrict her husband’s legal capacity

CASE SOLVING QUESTIONS:

A stole a 14-million-VND watch from B C, by chance, bought the watch from A at half price when visiting a flea market downtown which was well-known to everybody as a place

marketing stuff with all types of origins 1 year later, B spotted that this watch was in the hand of C and asked for the return Advise C!

I: What should C do in the event of being requested to return of the watch from B ?

R: Art 166-168, 165, 179-181, 236

A:

A1: Art 165.1.a:

The owner = B

The property= a 14-million-VND watch

 B possessed the watch with a legal basis or B was the legal owner of the watch

A2: Art 165.2:

possession of the properties which does not comply with the provisions of Clause 1 of this

Article= The watch is stolen by A

 This is a possession without a legal basis

C buy the stolen watch => C possesses the watch illegally

A3:

Because C bought the watch at the flea market, there are 2 cases:

+ She might not know that it was a stolen watch

A person unlawfully but in good faith possessing = C

Because she has just been keeping the watch for 1 year, she has not become the owner of the watch yet

=> C shall not become the owner of the the watch

Art 166:

Owner = B

The person possessing, using or receiving benefits from the property = C

 B has the right to request C to return the watch

Art 444.2:

a third person = B

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has the ownership rights with respect to all or part of the property for sale and purchase = B has the ownership rights with respect to the watch

the purchaser = C

 C has the right to cancel the contract and require A to compensate for damage

+ She knew that it was a stolen watch

 B has the right to reclaim the watch

Art 444.3:

a purchaser = C

knows or should know that property for sale and purchase is under the ownership of a third person

= C knows that the watch was stolen

 C has to return the watch to B and does not have the right to demand A compensation for damage

A4: Art 579.1: A person possessing or using property of another unlawfully= C possess the watch

 C must return the property to B – the legal owner of the watch

C: It is advisable that C should return the watch for B who is lawful owner first Then, C can request

A for compensation if possession in good faith If A does not take responsibility, C can sue A for damage Otherwise, if possession in bad faith, C cannot request A for compensation

2 Is there a contract???

S1: A: I have an iphone to be sold Are you interested in it? (invitation to treat)

S2: B: sure How much is it? = offer 1

S3: A: I will sell it for no less than 10M VND = offer 2

S4: B: 10M VND is ok, however, I will pay you in 10 days

ISSUE (I): Is there a contract between A and B?

RULES (R):

Article 386, Civil Code 2015

APPLICATION (A):

 Article 386.1 Offers to enter into civil contracts

 A says: <I have an Iphone to be sold Are you interested in it?= This is not an offer as it is not clear enough, it is just an invitation to treat This is because A does not mention about the price of an Iphone that A wants to sell

 <A: I will sell it for no less than 10 million VND.= This is an offer because A offers to enter into a contract by expressing clearly his intention to sell an Iphone for B for less than 10 million VND

 Article 392 Amendment of offer proposed by offeree

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 <B: 10 million VND is ok; however, I will pay you in 10 days.= B accepts the price of 10 million VND, however, B adds a condition that he would pay A in 10 days Thus, B makes a new offer

 Article 393.2

 After a new offer is made by B, A keeps silent According to 393.2, the silence of the offeree shall not mean an acceptance of the offer to enter into the contract, unless it is agreed upon or habit established by the parties Therefore, in this case, the silence of A does not mean that he accepts B’s offer

 Article 385

A civil contract needs both acceptance and offer In this case, A does not accept the offer of B, therefore, there is no contract

CONCLUSION (C): There is no contract between A and B

3 Due to the current pandemic, a businessperson went bankrupt and has no remaining property planning to borrow some money from the bank to restart some venture, he is thinking about either pledging or mortgaging of properties to support his loan dossier (hồ sơ cho vay) Is the plan feasible from a legal perspective?

Art.s 292, 309, 317, 328, 331, 335, 344, 346

ISSUE (I): Is the plan feasible from a legal perspective?

RULES (R):

 Article 309, Civil Code 2015:

<Pledge of property means the delivery by one party (hereinafter referred to as the pledgor) of property under its ownership to another party (hereinafter referred to as the pledgee) as security for the performance of an obligation.=

 Article 317, Civil Code 2015:

<1 Mortgage of property means the use by one party (hereinafter referred to as the mortgagor) of property under the ownership of the obligor as security for the performance of an obligation to the other party (hereinafter referred to as the mortgagee) without transferring such property to the mortgagee

2 The mortgaged property shall be held by the mortgagor The parties may agree to deliver the mortgaged property to a third person to hold.=

APPLICATION (A):

Both pledge and mortgage all require property as security However, the businessperson went bankrupt and has no remaining property which is indispensable to be considered as security Consequently, the businessperson is unable to either mortgage or pledge

CONCLUSION (C): The plan is not feasible from a legal perspective

ĐỀ K59

I SHORT-ANSWERED QUESTIONS (60 points; 10 points/each question)

For each statement, answer <True= or <False= and explain why!

1 FTU’s Department of Education Management is a legal person

False Because it does not satisfy all the provisions in the Art 74 that it doesn’t have independent property and cannot participate in legal relations independently, but in the name of FTU and it is just a department of FTU

2 In the context of contract law, a bid (sự tr¿ giá) at an auction (đấu giá) is an offer

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True Because when someone in the auction bid for the product, he/she was the offeror to give a certain amount of money to buy it And the auction organizer was offeree who had right to accept the offer or not

3 In the context of entering into a contract, placing an advert in a newspaper with a price attached or placing it on display inside a shop with a price attached constitutes a binding offer to sell a unique item of furniture

False Because placing an advert in a newspaper with a price attached or placing it on display inside a shop with a price attached is just an invitation to treat or a marketting strategy, it has no clear expression as well as it is not binding If someone wants to buy it, they have to make an offer

to the seller

4 Anh issued an invitation to tender for a contract and Binh submitted her terms

Therefore, Anh made an offer which Binh accepted

False Because of the following reasons:

 Anh issued an invitation to tender for a contract means that Anh issued an invitation to treat

 Binh submitted her terms means that Binh made a new offer

Therefore, we cannot conclude that Anh made an offer which Binh accepted

5 A quotation of price can be accepted so as to form a binding contract

False A quote is not a binding contract Under contract law, only offers are considered legally binding and a quote is not an offer That said, accepting a quote can create a legally binding

bargain under certain conditions A client accepting a quote does not make the quote a contract A contract is formed when the client accepts the quote and the small businesses agrees to provide the services outlined

6 Contractual agreements must be in writing or must be evidenced in writing

False Because there are 3 forms of contract and there have oral contracts and contracts by

conducts in which contractual agreements do not have to be in writing or be evidenced in writing

II CASE-SOLVING PROBLEMS (40 points; 10points/each question) Apply the IPAC/IRAC model !

1 Born on 30/12/2002, B is leaving his hometown to start schooling at a university To settle down, B considers renting a room in an apartment near the campus and fortunately has found a desirable place

a Can B by himself conclude a lease contract with the potential landlord?

b After one year at university, instead of concentrating on schooling, B gets addicted to cocaine, therefore decides to quit the university and returns home From then on, he has sold out his household assets to cover his drug expenses How can his parents stop him from doing so from a legal perspective?

1 I: Can B by himself conclude a lease contract with the potential landlord?

R: Art.20 Civil code 2015

each adult = Binh

except for the cases prescribed in Articles 22, 23 and 24 of this Code

=> Binh has full legal capacity

C: B can by himself conclude a lease contract with the potential landlord

2. I: How can his parents stop B from selling out his household assets to cover his drug

expenses from a legal perspective?

- R: Article 24 Civil code 2015

- A: Art 24.1

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a person with limited legal capacity after excessive drug consumption or other psychotropic substances = Binh gets addicted to cocaine

worsening material situation of the family =Binh sold out his household assets to cover his drug expense

a person with related rights or interests = Binh’s parents

=> His parents can request the court to appoint a legal representative of the person with limited legal capacity and the representation scope

=> The court shall issue a decision to declare Binh with limited legal capacity

Art 24.2

civil transactions related to the property= sold household assets

a person with limited legal capacity declared by court = Binh

except for transactions to meet the needs of daily life = Binh sold household assets to cover drug expense -> not transactions to meet the needs of daily life

=> Binh must obtain the consent of his/her legal representative when selling household assets

C: B’s parents can request a court to declare B as a person with limited legal capacity after excessive drug consumption to become his/her legal representatives In this case, Binh must obtain the consent of his parents when selling household assets

2 You are renting a room and agree on the monthly rental fee of 1 million VND However,

at the end of the first month, the land-owner requested you to pay utilities fees for the

Internet, electricity, gas and water on the grounds that they are not included in the upon rental fee Do you have to pay the utilities fee?

agreed-I: Do you have to pay the utilities fee?

R: Art 112.1 Civil Code 2015

A:

A consumable object is an object which, after being having been used once, loses or is not capable

of retaining its original characteristics, appearance and usage = the Internet, electricity, gas and water

A consumable object may not be the object of a lease contract or of a lending contract = the

Internet, electricity, gas and water may not be the object of the lease contract

C: You have to pay the utilities fee

3 In 2019, after stealing a mobile phone from An, Binh presented it to Chi - his girlfriend One year later, detecting that his phone is captured by Chi, An requested the return of the item Advice Bich on her response!

A1: Art 165.1.a:

The owner = An

The property= a mobile phone

-> An owned the mobile phone with a legal basis

A2: Art 165.2:

possession of the properties which does not comply with the provisions of Clause 1 of this Article

= The mobile phone is stolen by Binh

-> Binh possesses without a legal basis

Binh presented the mobile phone to Chi -> Chi possesses the phone illegally

A3: Because Chi received the mobile phone from An, there are 2 cases:

+ Chi might not know that it was a stolen mobile phone

A person unlawfully but in good faith possessing = Chi

Because she has just been keeping the mobile phone for 1 year, she has not become the owner of the mobile phone yet

=> Chi shall not become the owner of the mobile phone, she was just the possessor of the mobile phone

Art 167:

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Owners = Binh

movable property not subject to ownership right registration= the mobile phone

bona fide possessors = Chi

in cases where such bona fide possessors have acquired such property through unindemifiable contracts = An gave Chi the stolen mobile phone

persons who have no right to dispose of the property = An

+ Chi knew that it was a stolen mobile phone

Owners and/or holders of other property-related rights = Bình

the persons possessing, using or receiving benefits from the property without a legal basis = Chi is possessing and using a stolen phone

 Bình shall have the right to request Chi to return the phone

Art 579.1:

A person possessing or using property of another unlawfully = Chi

the property= the stolen mobile phone

its owners and holders of other property-related rights = Binh

 Chi must return the mobile phone to Binh

Conclusion: Binh has the right to reclaim the mobile phone and Chi is obliged to return it to Binh

Exercise 3:

A (5 years old) loves singing and would like to register for a talent competition

a Advise A on how to do so! Can A register by herself?

I: Can A register for the competition and if not, how can she do it?

A3= A’s age=5 (<6 years old)

 A needs a legal representative to register for her

C: A can’t register on her own

A need their parents or legal representative to complete the registration for her/him

b After winning the 1st prize in the competition, A would like to put the awarded money some in a saving account Can A do so by herself?

I: Can A put the awarded money some in a saving account by herself? And if not, how can she do it?

A1: Civil transaction = put money in a saving account

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A2: each child = A

A3: A’s age = 5 years old < 6 years old

 A needs a legal representative to put her awarded money in a saving account

C: A cannot put the awarded money in a saving account by herself, but her legal representative

can

 A can ask her parents or her legal representative to do so for her

A need their parents or legal representative to put their reward money in a saving account

c Lots of showmen are approaching A to offer performance contracts Advise these persons

on how to conclude contracts Should they contact A directly?

I: Should showmen contact A directly?

A1: Civil transaction = performance contract

A2: each child = A

A3: A’s age = 5 years old < 6 years old

 A needs a legal representative to conclude the contracts for her

 C: Showman cannot contact A directly, they must contact her a legal

representative to conclude the performance contracts

d Being determined to be a professional singer, five years after the competition, A would like to be a trainee in an entertainment company Can A sign the training contract by herself?

I: Can A sign the training contract by herself?

A2: A’s age = 10 (from 6 to under 18 years old)

A3: Civil transaction = training talent contract

A4: except for civil transactions which are performed for the purpose of meeting the needs of

daily life suitable for the age group

 A must have the consent of her legal representative to sign the contract

C: A cannot sign the training contract by herself

BÀI TẬP THEO SESSION

SESSION 10&11: CIVIL LEGAL RELATION

Exercise 5 on Subjects: Legal Entities

Are the following entities legal persons? Why and Why not?

– FTU

– A sole proprietorship

– A limited liability company

– A joint stock company

– The headquarter/branch/subsidiary of an enterprise

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A2: FTU is established by the government

A3: Head of FTU: + Institute of Economics and International business

+ Faculties

+ Depts

A4: FTU has its own property: self-liable for its depts

A5: FTU has its own name: use its own name in civil relations

CONTRACT: party A (FTU) + legal representative = president

C: FTU is a legal person

2. I: Is a sole proprietorship a legal person?

R: Art 74.1 Civil Code 2015

A:

A1: Sole proprietorship is an economical organization

A2: Sole proprietorship = legally formed (by the decision of the authority) under the

provisions of the Law on Enterprises

A3: Organizational structure

Owner, president, CEO => Sales and marketing; service, delivery; office manager

It is owned and operated by a single individual who has a final decision about strategy,

marketing and financial problems

A4: Independent property => No

- Owner enjoys the profit from the business

- In legal terms, business = the owner

 No self-liability => Liability is limited to the owner’s assets (owner has to take all the risks)

A5: Sole proprietorship can participates independently in some contracts in its own name C: Sole proprietorship is not a legal person

3. I: Is a limited liability company a legal person?

R: Art 74.1 Civil Code 2015

A:

A1: Limited liability company is an economical organization

A2: Limited liability company = legally formed (by the decision of the authorty) under the

provisions of the Law on Enterprises

A3: Organization structure

President

Vice president 1 Vice president 2

Deport Institute Faculty

Uni council

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It can be owned and operated by many individuals who have a final decision about strategy, marketing and financial problems

A4: Independent property: self-liable for its depts

A5: Participate independently in legal relations in its own name

C: A limited liability company is a legal person

4. I: Is a joint stock company a legal person?

R: Art 74 Civil Code 2015

A:

A1: JSC is an economical organization

A2: Joint stock company = legally formed (by the decision of the authorty)

A3: Organization structure

It is owned and operated by many individuals who have a final decision about strategy, marketing and financial problems

A4: Independent property: self-liable for its depts

A5: Participate independently in legal relations in its own name

C: A joint stock company is a legal person

Ex6: An enterprise bears a debt of 10 billion VND while its assets total 1 billion VND – Determine the threshold of the enterprise’s

liability?

– Do its owners have to cover its debt by their own private assets in the following cases?

• The enterprise is a sole proprietorship

• The enterprise is a limited liability company

• The enterprise is a joint stock company

a The threshold of the enterprise’s liability is 10 billion VND

b  The enterprise is a sole propriety

 Owners have to cover the debt 10bil VND by their own private assets

 The enterprise is a limited liability company

 Owners don’t have to cover its debt by their own private assets = 1 bil VND

 The enterprise is a joint stock company

 Owners don’t have to cover its debt by their own private assets = 1 bil VND

EX7: 1 You are buying a PC set at an electronics shop Can the shop require you to pay extra money for the screen, keyboard on the grounds that they do not accompany the PC?

Hints: Article 110, Civil Code 2015

I: Can the shop require you to pay extra money for the screen, keyboard?

+ 110.1:

+ 110.2:

A1: Independent object A2: can be exploited according to its function A3: supports the exploitation of a primary object A4: part of the primary object which may be separated

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A3: screen supports displaying the image of the PC; keyboard helps typing

A4: Part of PC but do not accompany with the PC set

 Auxiliary object

A5: You are buying a PC from an electronic shop

A6: I can deal with the shop to not buy screen, keyboard since I’ve already had them

C: The shop cannot require to pay extra money for screen, keyboard But if a term is agreed

on just buying the PC set, I can just buy the PC set

2 At the moment of dissolution, remaining assets of an enterprise comprise of:

– A 500m-VND automobile

– A 20m-VND set of computer

– A 10m-VND printer

– A table and a dozen of chairs of 20m-VND worth in total

a How can you divide them equally among two owners of the enterprise?

b What if, either of the two owners insists on keeping the automobile for himself?

Hints: Article 111, Civil Code 2015

I: Can the remaining assets be divided equally among two owners of the enterprise??

R: Art 111.2, Civil Code 2015

A1: object= an automobile, a set of computer, a printer, a table and a dozen of chairs

A2= after being divided, is not able to retain its original characteristics and usage: when physically

divided such objects, they cannot remain its original functions

 indivisible objects

A3= When an indivisible object needs to be divided= enterprise dissolves, two owners want to divide

their assets

 Because they are indivisible objects, they must be valued in money when it comes to

the division In this case, the assets will be added by all value in money, and it

equals 500m+20m+10m+20m and each will receive 275 m VND

C: The remaining assets can be divided as long as they must be valued in money

b If the remaining assets are to be divided equally, it means that each of the owners will

receive 275m So, if either of the owners insists on keeping the automobile for himself, that

person should pay 225m in money to the other owner who cannot keep the automobile for

himself

3 You are renting a car to travel to the countryside When returning the car to the

leaser, you are requested to either refill the car or to pay for the used amount of

petroleum Are you obligated to do so?

Hint: Article 112, Civil Code 2015

I: Are you obligated to either refill the car or to pay for the use amount of petroleum?

A1: Object A2: After being used once, A loses or is not capable of retaining its

+ 112.1:

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=> Consumable may not be the object of a lease contract or of a lending contract

C: You are not obligated to do so because petroleum is a consumable object but if there is a

prior agreement between you and the leaser that you will have to fill the petroleum or pay a fee for the amount of petroleum used then you must fulfill those obligations to the leaser

4 Believing that the number series of 8888 is good for your fate, you are buying a motorbike with the plate-number of xxx-8888 The seller, initially agreeing so, but then changed his mind and is replacing it with another bike of the same model, year of production and quality, but with another number plate Do you have to accept the replacement? Hint: Article 113, Civil Code 2015

- I: Do I have to accept the bike of the same model, year of production and quality but with another

number plate as a replacement for the bike with the plate number of xxx-8888?

- R: Article 113.2, civil code 2015

 An obligation to transfer is only able to fulfill by transferring that xxx-8888 motorbike

C: I will not accept that offer of the seller at any rate

Tiêu đề	Giải đề Pháp luật đại cương cuối kỳ FTU
Trường học	Foreign Trade University
Chuyên ngành	Law
Thể loại	Notes

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