ORIGIN OF STATES AND LAW
ORIGIN OF STATE
Divine theory (Thuyet than hoc)
Social contract theory (based on agreement)
Marxist: In primitive societies->can’t create surplus of products->no
ownership->no class
In modern times, the opposite happened->a division of labour->class meerged-
>class struggles->need a powerful organization to control the state.
Economic cause: the emergence of ownership
Social cause: the birth of classes
State is a special political organization that protects the right and interest of
the ruling class, maintains the stability of the society. States have enforcement
power
NATURE OF STATE:
Class-conscious face
Social face: Solve the problem arising in society
POWER OF STATE:
Legislative power: power to make law, legislature, National Assembly
Parliament Congress
Executive power: Power to administer law, executive, Government Cabinet etc
Judicial power: Power to enforce law, Judiciary, Courts
FORM OF STATES
Forms in which state powers are allocated / designated
Types:
Absolute Monarchy
Constitutional Monarchy
Monarchy
Structural form: Unitary-Federation
The Vietnamese forms of state
ORIGIN OF LAW
Non-Marxist view of the origin of law
Social Contract Theory: Law represents the general will of the community
Psychological theory: Law is people’ intuition about the right way to behave
Theology: Law is created by God
Marxist Theory
- Law is an element of social “superstructure” the form and use of which, at
any given time, will be reflection of the condition of the economic based.
- Law is an instrument of class domination used by ruling class to maintain
and advance its interests
Nature of law
Like state, Law has two attributes:
- Class-conscious face: the will of the ruling class, and protect the ruling
class
- Social face: reflect the objectiveness of society, consistent with the society
Definition
Laws are legally enforceable rules made by governmental authorities within a
society
The differences between rules and laws:
Scope of obligation
Authority: Law are enforced through the court, rules are enforced by the leaders
of the organizations
Consequences
Flexibility: The change in law will take time adapt to social change +
procedures, rules will change very quickly because the change of rules does not
need to comply with any procedures.
Laws are rules but not all rules are laws: Legal rules (lead to legal
consequences) and Non-legal rules
Attitude and appearance of staff: No discrimination in workplaces, No hate
Crime
Handling of company assets: No stealing, No bribes, No corruption
Behaviour in front of customers: No violation of customers’ rights, false
advertising
Customs:
CLASSIFICATION OF LAW
Types of Laws
1. Public law and private law (luat cong – luat tu)
Public law concerns the relationships within governments and those
between governments nd individuals
Ex: Administrative law, constitutional law, criminal law, …
Constitutional law governs the structure of government and protects
fundamental rights of individuals. If the government violates these rights,
constitutional law provides legal remedies.
Example: A Government Bans Protests
Case: Denial of a Business License Without Justification
How It Works
Administrative law controls how government agencies operate and
ensure they follow legal procedures.
Example: A Restaurant Owner is Denied a License Without
Explanation
Criminal law defines offenses that are considered harmful to society and
prescribes punishments for those offenses. The state (government)
prosecutes individuals who violate these laws, even if the victim is a
private individual.
Example: Theft (Larceny)
Private law concerns relationships that people have with one another and
the rules that determine their legal rights and duties among themselves.
Example: Contract law, Company law, Succession Law, etc…
2. Civil law and criminal law (luat dan su – luat hinh su)
Criteria Civil Law Criminal Law
What does it Deals with Deals with offenses
concern? disputes against society or the
between state, involving laws that
individuals or maintain public order
organizations and safety.
over rights,
obligations,
or contracts.
Who are the Plaintiff Prosecution, Procuracy,
parties? (person who Investigation
files the agency(state/government
lawsuit) vs. ) vs. Defendant (accused
Defendant person).
(person being
sued).
Which court Civil courts Criminal courts (e.g.,
will hear the (e.g., family magistrate court (toa so
case? court, small tham), district court,
claims court, supreme court, etc.).
commercial
court, etc.).
Consequences Compensatio Punishments such as
? n (damages: fines, imprisonment,
bồi thường community service, or
thiệt hại), even the death penalty
injunctions (in some jurisdictions).
(lệnh của
tòa), or
specific
performance.
No
imprisonment
, ->remedies
Examples? Breach of Murder, theft, assault,
contract, drug trafficking, fraud.
property
disputes,
divorce,
defamation,
personal
injury claims
3. Substantive law and procedural law (luat noi dung - luat hinh thuc/to
tung)
A substantive law is a law that creates and controls the rights and duties of
parties
Ex: Law of contract, company law, labour law, etc
A procedural law is a law that creates and controls the process of enforcing the
rights and duties under substantive laws, the process of settling disputes
Ex: Civil procedure code (rule on how to plead in court, how to provide
evidence, etc…)
Luat to tung ko quy dinh quyen va nghia vu cua cac ben, quy dinh ve quy trinh
to tung tai toa…
Criminal code is substantive law
Criminal procedure code is procedural law
SOURCES OF LAW
Customary law Case law (án lệ, tiền lệ án, tiền
Definition - Rules of conduct with clear - A collection of principles and rul
content decisions of judges, and it is also
- Formed and repeated many judge-made law or precedents
times over a long period of - The main source of law in comm
time, widely recognized and US, UK, Canada, Australia, som
applied colonies…
- The issue in question is not
requested by law
Rules on - When neither provided for by Principle of precedents: A court sho
application law rulings of previous cases tried in a h
- When not agreed upon by the situations where the facts are the sam
parties - Lower court(Trial court)-> Appe
- May apply then but must not court will apply case law)-> High
contravene the basic >Supreme court
principles of the Civil Law - The facts are the same
Example Dozen Donoghue v Stevenson (1932) A.C
principle first applied
https://professionalnegligenceclaimsoli
duty-of-care-key-tort-law-judgment-do
How to - Principle of Stare Decisis: simila
apply treated alike
R v E.Manley (1933)
R v Jones (1959)
- Principle of Distinction: to find
between the current case with pre
Donoghue v Stevenson (1932)
Grant v Australia Knitting Mills (1936)
Legal Created By
Instrument
Ordinances Local government authorities (e.g., city
councils, municipal governments), sometimes
national governments
Decrees Head of state (e.g., president, prime minister,
monarch) or executive authority
Orders Executive officials, courts, government agencies
Decisions Courts, regulatory bodies, executive officials
Circulars Government agencies, regulatory bodies
Acts/Codes Legislative bodies (e.g., parliaments,
congresses)
Constitution Constitutional assembly, legislative body, or
through a referendum
Legal Norms (Quy pham phap luat)
- A mandatory rule of social behaviour established by the state
- Structure of legal norms include:
o Assumption (Hypothesis): Who? When? Condition or situation to
apply – Phan Gia dinh
o Regulation (Disposition): Must do sth? Must not do sth? How to do
sth? Allow to do sth? – Phan quy dinh
o Sanction (Punishment) : Consequence
- Ex: A purchaser must pay the full price at the agreed place and time (Sect.
1.Art.440, Civil Code 2015)
Assumption: A purchaser
Regulation: must pay…place and time
Sanction: no info
- Exercise
o Legal documents must be sent to competent state agencies for
supervision and inspection.
o Male and female citizens are equals in all aspects. The state has
policies to ensure gender equality.
o No one will be arrested without the decision of the People’s Court,
the decision or approval of the People’s Procuracy, except in cases
of red-handed crimes. Arrest, detention, and detention of people are
determined by law.
o The mortagage is canceled, if agreed by the mortgagee.
o Changes of family name, name, and nationality must be at the
competent of state agency on civil status.
Assumption Regulation Sanction
Statutory Interpretation
- A process by which courts interpret statutory law.
- Some rules on statutory interpretation in common law countries
o Literal rule: The literal rule requires courts to interpret statutes in
their plan, literal and ordinary meaning
London and North Eastern Railway Co v Berriman (1946)
R v Harris (1836) 7C & P 446
o Golden rule: where the literal rule would result in an absurdity or
an obnoxious result. The judge will adopt another interpretation
which produces the least absurd result.
Re Sigsworth (1935)
o Mischief rule: This rule requires the Court to look to what the law
was before the legislation was passed in order to discover what gap
or mischief the legislation was intended to cover. The court is then
required to interpret the legislation in such a way to ensure that the
gap is covered. (phu hop voi mong muon, muc dich cua nha lam
luat)
Smith vs Hughes (1960)
o Class rule (nguyen tac dong loai): Where general words follow
particular words, the court should interpret the general words as
persons or things of the same class
If the Act referred to “cats, dogs or other animals” the general
words, “other animals” should be construed in the light of the
particular words, “cats and dogs”, as other kinds of domesticated
animals and not wild animals.
Problem questions on Statutory Interpretation
1. When Dave was visiting Alex in prison, he attempted to pass Alex a wig
and a jacket. Dave also had a pair of scissors in his pocket. Dave was
charged under a section of the English Prison Detention Act that states “a
person must not taken into prison any knife, dagger, firearm, club or other
thing whatsoever”
Explain if Dave is likely to be found guilty
- IRAC Formula:
o Issue: whether Dave is to be found guilty due to his passing his
friend a wig a jacket and a pair of scissors in prison?
o Rule: The English Prison…
o Application: Literal rule if broad meaning (including wig, jacket
and scissors); Class rule(if scissors belong to the same group as
club, knife,…-weapon)
Applied the Mischief rule for passing the wig and jacket
o Conclusion:
