Introduction Vietnamese business 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, official at least, is to provide a means of resolving conflicts in a fair and harmonious way .

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Ha, Thi Thanh Binh (LLD)

Legal system and Business Law

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Introduction to Vietnamese Legal

system

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• 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

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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.

Purposes of law

• Remedying private disputes

• Controlling anti-social activities

• Regulating harmful activities

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Legal system

• Collection of legal norms developed

systematically with foundation and branches

• Classifiable.

• Groups of norms are inter-connected

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Categorization of legal systems

• Civil law legal system

• Common law legal system

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Civil law legal system

• Sources of law

• Substantive law and procedural law

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Sources of law

• Statute law (written law)

• Implementing regulations

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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…

Common law legal system

• Sources of law

• Doctrine of precedent

• Development of common law legal system

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Sources of law

• Statute

• Common law

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Statute

• Written law made by legislature.

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Common law

• Common law is a collection of principles and

rules based on the decisions of judges in

higher courts

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Doctrine of precedent

• Decisions on the same or similar facts by a higher court in the same hierarchy are binding

on a lower court.

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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

The Vietnamese Legal System

• History of Vietnamese law

• Public laws and private laws

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History of Vietnamese law

in three books

– In the North of Vietnam

– In the South of Vietnam

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Public laws and private laws

– Administrative law – Criminal law – Financial law – Competition law – …

– Civil law – Commercial law – Corporate law – …

the danger of confusion between public and private interests

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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?

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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

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Introduction to Rules of law and

Applications

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

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• What are legal applications?

• Steps in applications (IRAC)

– Issues

– Rules

– Applications

– Conclusions

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Constitutional Law

• Doctrine of separation of powers vs Doctrine

of parliamentary supremacy

• Vietnam Constitution Law

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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

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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

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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

Historical development

• Constitution 1946

• Constitution 1992 (as amended in 2001).

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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

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Economic regime and civil rights

socialist orientation.

– State economy – Collective economy – Private economy – Foreign-invested economy

by the citizen in the framework provided by law

– Political rights – Socio-economical rights – Citizen rights and human rights

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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

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Functions of the National Assembly

• Legislative function

• Supervision function

• Other important functions

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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

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

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The President

• Election of the President

• Functions of the President (mostly formality)

–Head of State

–Commander in Chief of the Army

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The Court

• Independence of justice and the role of justice in the Rule of Law

equally to everyone

• 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

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People’s Procuracy

• Structure

• Functions

–Supervise the administrative agencies in their

implementation of law

–Prosecuting criminal cases

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Other organizations

• National Fatherland Front

• Communist Youth League

• Professional Organizations

• Lobby of interest groups

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Summary

OF VIET NAM.doc

Business law

• Definition

• Main areas of law

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• Business law means the law regulating and

affecting the operation of a business.

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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)

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