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1 MEANING AND BASIC CONCEPTS OF LAW

Asso.Prof. Dang Minh Tuan

VNU School of law – Vietnam National University

2 CONTENTS
• Definition of law
• Roles/functions of law
• Classification of law

3 I. DEFINITION OF LAW
• A great diversity of views on the definition of law
• Sir John Austin (an English legal theorist of 18th-19th Cen) : Law is a commands set by a sovereign
or superior being to an inferior being and forced by sanctions.
• Kark Max (19th Century): Law was an instrument used by the wealthy class to dominate and exploit
the weaker and laboring class.
• Professor Harts (a British legal philosopher of 20th Cen): Law is a necessary tool to regulate and
protect the collective interests of the society
• Salmond (a legal scholar, public servant and judge in New Zealand of 19th -20th Cen): Law is a body
of rules or principles recognized and applied in the administration of justice (* law – not only for the
collective interests, but also individuals rights/human rights)

5
WHAT ARE THE SYMBOLS OF LAW THAT COME ACROSS YOUR MIND?

7
Generally law can be described as a set of rules, developed over a long period of time that
regulates interactions that people have with each other, and which sets standards of conduct
between individuals and the government and which is enforceable through sanction.
•

8 MAIN POINTS ON THE DEFINITION OF LAW

1. a set of rules
2. regulates interactions between people/parties
3. are enforceable through sanctions
4. authority of the government

9
What are the differences and relationships between the law, morality and ethics?

10 Morality and ethics

• Morality and Ethics:
• Morality is the sense of judgement between right and wrong to certain standards developed by
society over time. It consists of values, principles, beliefs, customs, ways of living.
• Ethics gives us a sense of what’s good, right, and meaningful in our lives. It consists of values,

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Ethics gives us a sense of what’s good, right, and meaningful in our lives. It consists of values,
principles and purposes. (professional ethics…)
• Morality/ethics are not bindings, enforceable and have sanctions. They are binding on the
conscience of the members of the society.
• Uniformity: The law is based on morality and ethics; it incorporates a significant proportion of
morality and ethics.
• Contradiction: certain wrongs in society contravene morality/ethics but not the law (disrespect,
failure to provide for parents…); the existence of unjust laws (enforcing slavery or legalizing
abortions) proves that morality/ethics are not identical and do not coincide.

11
Can you name other rules in the society?

12 Diversity of rules
• Political parties
• Social organizations
• Businesses
• Internal rules/regulations of an organization (private and public)
• Families
• Groups
• Social forums, networks…
13 ROLES/FUNCTIONS OF LAW
• Maintain social order and stability
• Promote justice, fairness, human rights and freedoms
• Resolve conflicts and disputes
• Promote desirable social and economic behavior
• Promote the development
• Present the will of the people and minorities
• Control and structure public power
• Express society’s moral values
LAW AS NOT ONLY TO PROVIDE SANCTIONS, TO MAINTAIN SOCIAL ORDER, BUT ALSO TO
PROMOTE THE DEVELOPMENT AND VALUES
•

14 CLASSIFICATION OF LAW
• Law has been classified in various ways.
• The four main divisions are as follow:
Criminal law & Civil Law
National Law & International Law
Public Law & Private Law
Substantive Law & Procedural Law

15 CRIMINAL LAW AND CIVIL LAW

CRIMINAL LAW
- Offences against the state
- The criminal offender is prosecuted by the Public Prosecutor.
- Punishments: Fine, death sentence, whipping, imprisonment.

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- PP v defendant

CIVIL LAW
- It concerned with the right and duties of individuals towards each other.
- Plaintiff/Claimant v Defendant
- Remedy: Damages, injunction, rectification, specific performance.
•

16 NATIONAL LAW AND INTERNATIONAL LAW

NATIONAL LAW
- Also known as domestic law
- It refers to the set of laws applied within a nation state.
- Set of laws applied within a nation state
- Different in each country

INTERNATIONAL LAW
- Body of law which is composed for its greater part of the principles and rules of conduct which
states feel themselves bound to observe, and consequently commonly do observe, in their relation
with each other.
•

17 PUBLIC AND PRIVATE LAW

PUBLIC LAW
• Law which governs the relationship between individuals and the state.

PRIVATE LAW
• It concerned with matters that affect the rights and duties of individuals amongst themselves.
• It is intended to give compensation to person injured, to enable property to be recovered from
wrongdoers, and to enforce obligations.
•

18 SUBTANTIVE LAW AND PROCEDURAL LAW

SUBSTANTIVE LAW
- Deals with rights, duties, liberties, power.
- It is the law that governs our daily practices and conduct.
-
PROCEDURAL LAW
It relates to the enforcements of rights and duties (legal procedures)
•

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1 SOURCES OF LAW

Asso.Prof. Dang Minh Tuan

VNU School of law – Vietnam National University

2 CONTENTS
1. Introduction to Sources of Law
• Definition
• Classification of legal sources
• Sources of law in Vietnam
2. Q&A
3. Summary of the homework discussion

3 Definition
• Sources of law mean the sources from where law originates (the origin of law). In other words, law
is derived from sources
• Jurists have different views on the origin and sources of law, as they have regarding the definition
of law
• Austin: Sovereign as the source of law (the divine right of kings)
• Savigny and Heny Maine: Customs as the most important source of law
• Theologians: Religions as sources of law
• Natural law school: Nature and human reasons (justice, equality and liberty…) as the source of law;
law derived from the nature rather than from the rules of society. Natural law vs Positive law (law
made by the society or the state).
• Kark Max: Law originated from the wealthy class.
• People’s sovereignty: the will of the people as the most important source of law (law made directly
by the people or by their representatives (representative body/parliament).
•

4 Classification of legal sources

• Primary and secondary sources of law:
Primary: are actual binding law in the forms of constitutions, statutes (laws/codes), administrative
regulations, legal customs, judicial precedents, treaties…
Secondary: optional source of law including juristic writings, foreign decisions, religions, morality,
ethics… This source is applied if there is no primary law, or as additional ones. Legal custom and
judicial precedents also.
• Formal and material sources of law:
Formal: is a source where the rule exists (constitutions, laws, legal customs, legal precedents…
even justice, equality, morality in natural law.
Material: is a factor that helps the formation of the law (social relations, political power relations,
socio-economic situation, tradition or religious views, the research, international development…).

5 3 major sources of law

• 3 main sources: legal custom; judicial precedent; and legislation
• In the contemporary legal systems, most are based on legislations. At the same time customs play
a significant role. In many legal systems, courts decisions are binding as law.

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6 Custom as a source of law

• Custom can simply be explained as those long established practices or unwritten rules which have
acquired binding or obligatory character.
• Custom, to be valid (as a legal custom/custom law),
• must be long established practices or unwritten rules
• have acquired bindings or obligatory character
• In ancient societies, custom law was considered as one of the most important sources of law (the
real source of law)
• With the passage of time and advent of modern civilization, the importance of custom as a source
of law diminished and other sources such as judicial precedents and legislation become more
important

7 The general recognition of custom

• General recognition of custom as a source of law: the will of the people, not of the government
(The will of the people has always been reflected in the custom and traditions of the society);
stability; voluntarily comply, no need for sanction…)
• In common law (as in UK): legal customs play a very important role in society. Ex: A constitutional
custom (The monarchy has no accountability; the monarch rules, but he/she holds little or no
actual power or direct influence).
•
•
•

8 Unwritten legal customs become written law

• Unwritten legal customs may be incorporated in the law enacted by the State.
• Ex:
• Hindu Women’s Right To Property Act, 1937 (amended in 2005).
• The Vietnamese Law on Marriage and Family, 2014: “Children have the obligation and right to care
for their parents, especially when the parents lose their civil act capacity, are sick, old, or disabled. In
case the family has many children, the children must take care of their parents together”.
•

9 Judicial precedent as a source of law

• Judicial precedent refers to previously decided judgments of the superior courts, such as the High
Courts and the Supreme Court, which judges are bound to follow.
• Judicial precedent is an important source of law, but it is neither as modern as legislation nor is it
as old as custom.
• It is an important feature of the English legal system as well as of other common law countries
which follow the English legal system.

10 Importance of precedent as a source of law

• Final settlement of an issue (outcome of justice)
• Bring certainty (judicial procedures and principles)
• Bring flexibility to law (not only depend on legislations)
• Contribute to the development of law (the court interprets the law)
• Help in guiding lower courts

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In most of the developed legal systems, the judges are competent to interpret the law to decide the
case, and by this exercise, they lay down new principles and rules which are general binding on
lower courts within a legal system.
Q1
If precedent is law, does it mean that judges make law?

12 Two views and the general development

• The courts interpret the law to solve the cases, and by this exercise, they lay down new principles
and rules, therefore, it is argued that the courts actually make law. While interpreting the law
enacted by the legislative bodies, the courts contribute to the existing body of law.
• The courts do not make law, which is enacted by the legislature(parliament). The court they simply
interpret the existing law (interpret what the law is). Judges are not law-givers, but they discover
law.
• Judges do not make the law in the same manner in which, legislative bodies do. Judges work in a
given legal rule passed as law by the legislature. The law can not amended by the courts, however
they can develop the law through their interpretations.

13 Legislation as a source of law

• In modern times, legislation is considered as the most important source of law.
• The term 'legislation' is derived from the Latin 2 words, “legis” and “latum”. The former means law
and the latter means to make.
• Legislation consists in the declaration of legal rules by a competent authority (often by the
legislature, who may delegate its power to the executive).
• Legislation forms: Acts, Codes, Statutes, Law

14 Constitution as the fundamental law of each State

• It is a set of basic rights and freedoms, as well as principles of government structure (legislative,
executive and judiciary). Basic policies sometimes also.
Ex: The American Constitution, 1787; The Vietnamese Constitution, 2013.
•

15
Primary Sources of Law in the United States

16

17 Primary Sources of Law in the United States

• 1. Constitution
• 2. Federal and State Statutes
• 3. Administrative Regulations
• 4. Case Law
•
•

18 Treaties as an important source of law

• The host country may be subject (or may be about to become subject) to laws made by a regional

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The host country may be subject (or may be about to become subject) to laws made by a regional
or world grouping by becoming a signatory to a treaty.
• Examples are the laws of the European of Union, trade treaties, rules of the WTO, NATO and
bilateral treaties.
• Treaties/international law are superior to national law (except Constitution). If there is a conflict of
international law and national law, international law prevail. However, International law is under
the Constitution.
• Q2: Law is binding (a main feature of law). What is about international law? Is international law is
enforced by international agencies?

19 Compliance mechanism
• As national law, International law is binding; however, to ensure compliance with international law
differ considerably from those applying in internal law.
• The national law relies primarily on enforcement by the authority of the state which imposes
obedience.
• Such superior authority does not exist in international relations; international law rather relies on
voluntary compliance. A member state and others can provide sanctions, such as economic
sanctions on a member state which violate the international law.
• Enforcing the international law is challenging.
• Ex: Russian Invasion of Ukraine.
•

20 Sources of law in Vietnam

• Written legal normative documents are primary sources of law. Custom is a limited source of law
in civil and trade cases while there is no written law. Legal precedent is also only partially
recognized.
• Legal normative documents include:
Constitution
Treaties that Vietnam is a member state (indirect application)
Laws enacted by the National Assembly
Many other legal normative documents adopted by public agencies from the central to the local
(the President; the Government; the prime minister; the ministries; local authorities…) to
implement and clarify the law.
• Customs: only a source of civil and commercial law (not be applied in public law).
• Precedents: A similar form of precedent is the Supreme Court’s Summary of the typical precedents
as a guiding source of law for lower courts.
•

21 The list of the legal sources in Vietnam

1. Constitution, 2013
2. Civil Code
3. Law on Access to Information, 2018
4. Decree 100/2019 / ND-CP on administrative sanctions in the field of traffic and railways, dated
30/12/2019.
…
Q3: Please name at least a source of law in the list (one of the National Assembly; one of the
Government; one of the local authorities).

22 Question 4

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Why are customs and precedents not fully recognized in Vietnam?

23 Why are customs and precedents not fully recognized in Vietnam?

• Priority of written law in a civil law system
• Disadvantages of precedents: Judge-made law not based on the democratic process; judges are
not qualified and independent; complicated legal system based on legal precedents…
• Disadvantages of customs: not based on the democratic process; unpopular; unclear; conflicts…

24
Q&A

25
Summary of the homework discussion

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1 THE RULE OF LAW

Asso.Prof. Dang Minh Tuan

VNU School of law – Vietnam National University

2 CONTENTS
• Concept of the Rule of Law
• Principles of the Rule of Law
• The Rule of Law Index

3 Concept
• “The Rule of Law” - Pháp quyền
The expression “Rule of Law” has been derived from the French phrase “la principle de l’égalité”,
i.e. a government based on the principles of law.
It was expounded for the first time by Sri Edward Coke, and was developed by Prof. A.V. Dicey in
his book “The Law of the Constitution” published in 1885.
• Vietnamese version: Nhà nước pháp quyền (Rule of law based Government) – a government
based on the principles of the rule of law. Art.2 Constitution of 2013.
•

4 Concept
• According to Edward Coke, “Rule of Law” means:
Absence of arbitrary power on the part of the Government
No man is punishable or can be made to suffer in body or good except for a distinct breach of
law established in the ordinary legal manner before the ordinary courts of the land

5 Concept
• As per Prof. A.V. Dicey: “The rule of law” means the absolute supremacy or predominance of the
regular law as opposed to the influence of arbitrary power and excludes the existence of
arbitrariness or even of wide discretionary authority on the part of the government” (the Law of
the Constitution)
6 Principles
• According to Prof. Dicey, rules of law contains 3 principles or it has 3 meanings as stated below:
1. Supremacy of law: “no man is punishable or can lawfully be made to suffer in body or goods
except for a distinct breach of law established in the ordinary legal manner before the ordinary
courts of the land.
2. Equality before law: everyone is equal before law; “no man is above law”
3. Predominance of legal spirit: the general principles of the constitution are the result of judicial
decisions determining rights of private persons in particular cases brought before the court.

7 Principles
• The Rule of Law, in its most basic form, is the principle that no one is above the law. Law is
supreme, above everything and everyone. Nobody is above law.
• It is the law and not the individual or group of individuals which rules or governs the people. All
actions must be according to law and not according to whom.
• Every person, whatever be rank and condition, is subject to the ordinary law of the nation.

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•
•
8 Principles
• The most important application of the Rule of Law is the principle that government must be
conducted within the framework of recognized rules which restrict discretionary powers.
• The principle is intended to be a safeguard against arbitrary governance, whether by a totalitarian
leader or by mod rule.
• Thus, the Rule of Law is hostile both to dictatorship and to anarchy.
• Discretionary powers should be exercised within reasonable limits set by law.

9
Case study: Vietnam Police forced a Woman to Test for Covid-19 in Sep 2021 in Binh Duong
In this case, was the rule of law violated?
•

10

11 Violation of the rule of law

• 2 basic principles:
Absence of arbitrary power on the part of the local authority >< the police violently forced the
citizen to Test for Covid-19 without reasonable legal bases. This act presented the will of the local
authorities, not the law.
No man is punishable or can be made to suffer in body or good except for a distinct breach of
law established in the ordinary legal manner before the ordinary courts of the land >< the local
authorities’ violation of basic human rights (right to be protected against violence or any
treatment harming his or her body and health; right to the inviolability of his or her domicile…)
• The question of the rule of law in a state of emergency. In emergencies, human rights may be
limited or derogated by special governmental measures. However, the problems arise that:
It was not in a state of emergency
Even in an emergency, discretionary powers should be exercised within reasonable limits set by
law.

12 Group Discussion
How is the rule of law important to your life? How does it protect your rights and well-being in
your daily life?

13 What does the rule of law mean, and how does it affect your daily lives?
Nine American federal judges explain how fair and consistent adherence to the law protects their
rights and well-being in everyday situations like buying a breakfast sandwich, reading mail, and
investing in the stock market.

14

15 Summary of the American Judges’ views

• Key to the rule of law, the judges say, is a commitment to applying the law to everyone fairly.
• Other attributes include applying the law to government, not just individuals and entities;
• Making the law clear and legal proceedings transparent;
• Balancing individual rights against the safety of others.
• “Your right to swing your fist stops just short of my nose,” Judges Benton said. “And that’s what the

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“Your right to swing your fist stops just short of my nose,” Judges Benton said. “And that’s what the
rule of law is meant to do, is to find that boundary.”

16 Pre-conditions for the Rule of Law

• Certain minimum standards for law conforming to social standards.
• Absence of retroactive penal law.
• Fair and Just Procedure.
• Speedy Trial in Criminal Cases.
• Equal access to Law.
• Legal Aid to the Poor.

17 Pre-conditions for the Rule of Law

• Sound legal profession.
• Independent & impartial judiciary
• Authority of the courts to test authorities’ actions, by the standards of legality.

18 The World Justice Project Rule of Law Index

• The World Justice Project (WJP) is an international civil society organization with the stated
mission of "working to advance the rule of law around the world".
• The WJP works through three programs — Research and Scholarship, the WJP Rule of Law Index,
and Engagement. WJP seeks to increase public awareness about the foundational importance of
the rule of law, stimulate government reforms, and develop practical programs at the community
level.
• The WJP Rule of Law Index is the world’s leading source for original, independent data on the rule
of law.
• Now covering 139 countries and jurisdictions, the Index relies on national surveys of more than
138,000 households and 4,200 legal practitioners and experts to measure how the rule of law is
experienced and perceived around the world.
•
•

19 Goals of the WJP Index

• The goals of the WJP Index are:
To measure adherence to the rule of law, not in theory but in practice.
To identify strengths and weaknesses of each country as compared with its peers.
To encourage efforts to strengthen the rule of law.

20 The four Universal Principles of the Rule of Law (defined by WJP)

1. Accountability: The government as well as private actors are accountable under the law.
2. Just Laws: The laws are clear, publicized, and stable; are applied evenly; and protect fundamental
rights, including the security of persons and contract, property, and human rights.
3. Open Government: The processes by which the laws are enacted, administered, and enforced are
accessible, fair, and efficient.
4. Accessible and Impartial Dispute Resolution: Justice is delivered timely by competent, ethical, and
independent representatives and neutrals who are accessible, have adequate resources, and reflect
the makeup of the communities they serve.
•
•

21 The Eight Factors for the Rule of Law Index

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1. Constraints on Government Powers

2. Absence of Corruption
3. Open Government
4. Fundamental Rights
5. Order and Security
6. Regulatory Enforcement
7. Civil Justice
8. Criminal Justice
•

22 WJP Rule of Law Index 2021

• Denmark, Norway and Finland topped the WJP Rule of Law Index rankings
• Venezuela, Cambodia, and Congo had the lowest overall rule of law scores.
• East Asia and Pacific’s top performers in the Index is New Zealand, Australia and Japan.
• Philippines, Myanmar, and Cambodia are 3 countries with the lowest scores in the region.

23 Vietnam Rankings in 2021

• At 88/139 countries and jurisdictions worldwide.
• At 11/15 countries in the East Asia and Pacific region and 12 out of 35 among lower-middle
income countries.
• With the lowest rule of law scores in Fundamental rights and Constraints on Government.
•

24 Conclusion
• The rule of law plays an extremely important role in society. Effective rule of law reduces
corruption, combats poverty and disease, and protects people from injustices large and small. It
underpins development, accountable government, and respect for fundamental rights, and it is
the foundation for communities of justice, opportunity, and peace.

25
Q&A

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1 MAJOR LEGAL SYSTEMS IN THE WORLD

Asso.Prof. Dang Minh Tuan
VNU School of law – Vietnam National University

2 CONTENTS
• Meaning of legal system
• Classification of legal systems
• Vietnamese legal system
• Q&A
• Homework evaluation

3 Definition of legal system

• The set of laws of a country and the ways in which they are interpreted and enforced (Collins
English Dictionary).
• The legal system includes rules, procedures, and institutions by which public and private activities
can be carried out through legitimate means.
• It can also be defined as a body of rules including the principles, rules or doctrines associated with
them that have the force of law in a given society.

4 What makes a legal system?

1. Sources of law and their hierarchy
2. Law-making institutions (and their hierarchy)
3. Law-enforcing institutions and their powers (mostly courts)
4. Legal principles and concepts
5. The organisation of the legal profession (the judiciary, the prosecutors, the lawyers)

5 National legal systems

• Each state has its own legal system.
• The structure and characteristics of these systems are highly variable.
• Many legal systems are organized on the basis of a written constitution (e.g. the United States), a
few have constitutional systems not resulting from a single written text (e.g. the UK); a few do not
have an explicit constitutional framework (e.g. Afghanistan)
• The relative position of sources of laws varies greatly from one country to another.
6 Major groups of legal systems
• It is possible to classify national legal systems into several groups, based on the existence of
common characteristics.
• Basic elements for distinguishing legal systems: sources of law; legal principles and concepts; and
tradition.
• Major groups of Legal systems: civil law; common law; religious law (Islamic law); customary law;
common law and civil law; others.
• Other expressions: legal traditions; legal families.
•
•
•

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8 Basic elements for distinguishing legal systems

1. Sources of law – what constitutes law in each legal system (statutes, customs, judicial decisions,
general accepted legal principles, the opinions of jurists…)
• Under Sources of law we explained that some countries will apply greater weight to certain
sources of law than others, and that some will put more emphasis on judicial decisions than
others.
Civil law systems place more emphasis on statutory law (legislation)
Common law systems gives a broader role to case law, which is considered to be the source of
many of its rules, and has developed complex technical instruments to apply, interpret and modify
such case law.
•

9 Basic elements for distinguishing legal systems

2. The legal concepts and terminology used by each system
• This not a matter of language, but rather of ideas
• Concepts such as equity, or consideration, have a technical sense under common law which has
no exact equivalent in other legal system.
Equity provides remedies in situations in which precedent or statutory law might not apply or not
be equitable.
Consideration, in contract law, an inducement given to enter into a contract that is sufficient to
render the promise enforceable in the courts.
• On the other hand, many concepts used in civil law systems, but are not-existent or irrelevant in
other systems.

10 Basic elements for distinguishing legal systems

3. The legal tradition – the historical development of each national law
• Historical, civil law systems have been based on Roman law and on the codes enacted in
continental Europe;
• Common law systems are based on English common law;
• Legal systems from the Muslim tradition are based on Islamic law, etc.

11 Common law systems

• Common law (also known as judicial precedent or judge-made law, or case law) is a body of
unwritten laws based on legal precedents established by the courts.
• Countries following a common law system are typically those that were former British colonies or
protectorates, including the United States, India, Canada, Australia.
• Features of a common law system include:
(a) authority of the judgments delivered by higher courts and tribunals;
(b) composition of judicial institutions;
(c) adversarial system of court proceedings, and the role of judge,
(d) the importance of Acts, Statutes, and other legislations passed by competent authorities.

12 Common law systems

(a) Authority of the judgements delivered by higher courts and tribunals: the judicial precedents are
binding – case law
(b) Composition of judicial institutions:

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(b) Composition of judicial institutions:

• The judges are highly skilled persons who have specially studied the discipline of law and possess
practical experience in legal administration either as advocates or judges.
• A judge, in other words, cannot be a lay person or even a scientist. He must be a person of legal
background, either as an advocate or a judge or at least with a degree in law;
• Legal education: a bachelor degree requirement for law student; legal experiences/practices as a
compulsory requirement to become a legal practionner (advocates/judges…)
•

13 Common law systems

(c) Adversarial System of Court Proceedings and the role of Judge:
• The disputing parties engages advocates who act like adversaries in the court of law and each
advocate fights tooth and nail against the other in order to win the case.
• The judge in the court acts like a neutral observer listens patiently to the advocates of each party.
14 Common law systems
(d) Acts, Statutes passed by Competent Authorities:
• Though the legislations passed by competent authorities such as the Parliament/legislatures are
given an authoritative place which is binding on the judges, whenever the judges find any gaps in
the Act or Statutes passed by the Parliament, they can make suitable interpretation to fill the gap
in these acts.
• In other words, the judges and advocates of the Common Law system would think that the Acts
are very abstract and the rules contained in those Acts are very general in nature.
• Facts of every case would be so peculiar that it would be very difficult to apply the general and
abstract form of rule which may need suitable additions and interpretations
15 Civil law systems
• The expression "civil law" is a translation of Latin jus civile, or "citizens' law", as opposed to the
laws governing conquered peoples (Jus gentium).
• The origin of ‘Continental Legal System’ can be traced to the old age Roman Empire of the 5th
century A.D.
• Civil law is sometimes referred to as neo-Roman law, Romano-Germanic law or most commonly
referred to as Continental law.
• This legal system spread all over Europe. In the rest of the world, this legal system was imposed
during the era of colonialism during the seventeenth and eighteenth centuries.
• Now you may find this legal system present in many countries of Southern America and parts of
Africa

16 Civil law systems

• Common features of a civil law system include:
(a) importance of Acts, Statutes passed by the Parliament or competent authorities;
(b) composition of judiciary;
(c) power of the judges to make law; and
(d) inquisitorial approach of the court proceedings

17 Civil law systems

(a) Importance of Acts, Statutes passed by Competent Legislature:
• The Acts passed by the Parliament or the competent authorities receive the highest importance in
this legal system.

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this legal system.

• Judges regard the rules framed by the Parliament as supreme and do not try to change it by
asserting their own authority as in the Common Law
• The judges may give their own interpretations of the vague language used in the Act, but they
would say that it would be not binding except upon the parties to the dispute.

18 Civil law systems

(b) Composition of Judiciary:
• Persons who have specialized knowledge of any particular field may be appointed as judges. Thus,
an engineer or a doctor or a scientist may become a judge. There is no requirement to study law
as a separate discipline for a requisite number of years and practice in the court of law thereafter.
• More countries require a law degree to become a judge, but legal practical experience is not a
compulsory.
• Legal education: entering law school from high schools; specified academies for lawyers; judges
19 Civil law systems
(c) Power of the judges to make law:
• The judicial judgements are not binding, but they are given respect by the judges in other cases.
(d) ) Inquisitorial approach of the court proceedings:
• the judges in the ‘Continental Legal System’ play active roles in finding the truth.
• The judges do not simply act as a referee between the prosecutor and the defense but they
actively investigate the matter themselves with the co-operation of all disputing parties and try to
establish the truth by collection of evidence.
• Collection of evidence is thus not the sole responsibility of the advocates but the judges too.

20 Civil law v. Common law tradition

21
Which legal system, civil law or common law is better?
(Group Discussion)

22 New trends
• Each system has its advantages and disadvantages, therefore the trend is that every system
interact one to another; there is no pure common law nor pure civil law.
• The increasing contemporary influence of international agreements (international law).
• Therefore, the division of national legal systems into families or cultural groupings is weakened.
•

23 Match two parts of the following sentences:

24 Some other legal systems

• Islamic law
• Islamic law is based largely on the teachings of the Koran (literally: 'the Reading').
• The totality of Islamic law is known as the Shari'a, which means 'the way or path to follow'.
• The unique ground for the validity of Islamic law is that it is the manifested will of the Almighty: it
does not depend on the authority of any earthly law-giver.
• One of the consequences is that Islamic law is immutable, for it is the law revealed by God.
• Thus, society must adapt itself to the law rather than generate laws of its own as a response to
changing circumstances.
• Since Islamic law reflects the will of Allah rather than the will of a human lawmaker, it covers all

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Since Islamic law reflects the will of Allah rather than the will of a human lawmaker, it covers all
areas of life and not simply those which are of interest to the state or society.

25 Some other legal systems

• Socialist law
• Great influence of Civil law tradition
• Legal concept: law as an instrument used by the wealthy class to dominate and exploit the weaker
and laboring class (Kark Max).
• Law and society under the will of the communist party (rule by law vs rule of law).
• Importance of public law (to protect order and security)

26
Discussion Question
Which legal systems does Vietnam belong to?

27 Vietnam’s legal system

• History: Influence of Chinese Confucian law (1000 years); French law (civil law) in the colonization
period and the socialist law (since 1945, in particular from 1950s).
• A socialist legal system based on the civil law, with some major modifications from Marxist-
Leninist ideology; and is in the transition with many legal adaptations to international law and
other legal systems.
• The main features:
Legislation is the most important source of law;
Courts must make decisions based on legislation;
Policies are set out by the Communist Party, the only political party in Vietnam, which can lead to
changes in legislation in the future.


•

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1 MAJOR FORMS OF GOVERNMENT IN THE WORLD

Asso.Prof. Dang Minh Tuan
VNU School of law – Vietnam National University

2 CONTENTS
• Definition of government, forms of government
• Classification of government forms
• Vietnamese government form
• Q&A
• Homework evaluation

3 What is a government?
• A government is an institution or a system made of a group of people governing an organized
community, generally a state.
• Once appointed or formed, the government is responsible for the social welfare, law and order,
defence, and financial affairs of the state.
• Government normally consists of legislature, executive, and judiciary.
• The government’s powers are enforceable.

4 What is form of government?

• “Form of government” (hình thức nhà nước) refers to the set of political institutions by which a
government of a state is organized (synonyms include system, type of government).
• Two interplaying elements/criteria for distinguishing/classifing different forms of government:
Power source refers to the question the power to whom/who rules?
Power structure refers to question how the power is organized?

6 Power structure
horizontal separation of powers: legislative, executive and judiciary
(forms of government-các hình thức chính thể nhà nước)

7 Power structure
vertical decentralization: central and local powers
• Forms of government - Các hình thức cấu trúc nhà nước:
Federal government >< unitary government
Federalism: federal government and state governments
Local governments

8 Basic forms of government

• Democracy (Dân chủ)
• Republic (Cộng hòa)
• Monarchy (Quân chủ)
• Dictatorship (Độc tài)
• Transitional (Chuyển đổi)
• Theocracy (Thần quyền)
• Oligarchy (Đầu sỏ hay thiểu số)

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9 Democracy
• Democracy – a form of government in which leaders are elected by the people, therefore the
power is with the people.
• Power is given to the people and exercised by them directly or indirectly through a system of
representation (so called: a representative government or a republic)
• Democratic governments are based on free elections where all citizens have a vote and are able to
be a candidate.
• There are different forms of democracy (direct and indirect democracy; participatory democracy;
deliberative democracy).
• Most of contemporary governments are democratic to some extent.

10 Forms of Republic
• A form of government in which the leaders are elected or chosen for a specific length of time
(term of office). Especially “the State President”
• A republic means to be a democratic one, but not identical to democracy:
In some undemocratic republics, the leaders are chosen by a small number of people and may
stay in office for a long time, sometimes without ever being elected, or re-elected (North Korea,
China…).
In some cases, there may be elections, but these may be conducted in corrupt ways, or elections
are not given a free choice of who vote for.
• Contemporary democratic republican forms of government: The presidential; parliamentary and
semi-presidential and socialist republics

11 The presidential republic

• A form of government in which the head of State (president) is elected directly by the people;
he/she leads an executive branch that is separate from the legislative branch in the system that
uses separation of power.
• First established in the United States (the Constitution of 1787) based on the separation of powers
(checks and balances).
• Most popular in Latin America; Eastern Europe; some Asian countries such as Indonesia, South
Korea; Philippines
•
•

12
The American Form of Government: Separation of Powers

13

14 The parliamentary republic

• A form of government in which the executive (a prime minister and its government) derives their
power from the parliament, so they are elected by the parliament and accountable before the
parliament).
• Rooted in the parliamentary system in the UK (the accountability of the executive before the
legislature).
• Examples: Germany, Italy
•

15 Semi-presidential republic

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• Semi-presidential or a mixed system; or dual executive system: a form of government in which a

president exists alongside a prime minister and a cabinet.
• The president is directly elected by the people; he/she is the leader of the executive; a prime
minister and his cabinet are chosen by the parliament; are responsible before the president and
the parliamnent.
• First established in France (the fifth Republic of 1958).
• Others: Belurus, Croatia, Poland, Romania, Russian and Ukraine. Russian is distinct (super
presidential system).

16 Socialist Republic (Classical)

• No separation of power, but democratic centralization.
• All power are vested in the people
• The national assembly is the highest organ of the state; others powers, including the executive
and judiciary powers derive their powers from the national assembly.
• The role of the sole leading party – the communist party.
• Former Soviet Union, China, North Korea, Vietnam. Most of Socialist Republics have reformed
their systems.
17 Monarchy
• A form of government led by an individual who holds the position for life, having inherited the
position, and who passes it on to a relative, usually a son or daughter.
• Monarchy is the longest lasting form of government; popular in the states of pre-capitalism.
• Forms of monarchy: Absolute monarchy v. constitutional monarchy
• Absolute monarchy: the monarch has absolute power (or great power) and make all decisions and
laws of the country.

18 Constitutional monarchy
• The powers of the monarch are restricted to those granted in the constitution.
• Most constitutional monarchies uses a parliamentary system in which the king or queen may have
strictly ceremonial duties. They often have a elected prime minister who is the head of
government.
• Constitutional monarchies are democratic governments
• Constitutional monarchy is rooted in the UK (since the 13th century
• Constitutional monarchies are common today. E.g. the UK, Australia, Japan, Thailand, Malaysia…

19 Dictatorship
• A government in which a single leader or party exercises absolute control over the government
and society.
• The leader or party is not elected and may use force to keep control. In most cases, its absolute
power is exercised in a cruel way
• Other names for a dictatorship include: autocracy, military junta, authoritarianism, totalitarianism
or fascism.
• Examples of dictatorship today: North Korea; Libya; Myanmar; Sudan; Afghanistan

20 Transitional
• A transitional government is one that is in the process of changing from on form to another
• Countries with transitional governments are often unstable
• Examples: The communism – the capitalism (East Europe); or to the socialism (Vietnam, China);

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Examples: The communism – the capitalism (East Europe); or to the socialism (Vietnam, China);
Iraq, Afghanistan

21 Some other forms

• Theocracy – a government rules by a religious leader
• Oligarchy – a government in which a few people such as a clan or clique have power ><
Democracy; or Republic

22 Form of Vietnamese Government

• Form of a socialist republic with reforms
• Traditional features:
• The role of the sole leading party – the communist party. High level of centralization
• All power are vested in the people; direct and indirect democracy; participatory and deliberative
democracy
• The national assembly is the highest organ of the state; others powers, including the executive
and judiciary powers derive their powers from the national assembly.
• Reforms:
• The rule of law based state
• Distribution, co-ordination and control among state agencies in exercising legislative, executive
and judiciary powers
• Accountability; Openness and Transparency.

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1 CONSTITUTIONAL LAW
Asso.Prof. Dang Minh Tuan
VNU School of law – Vietnam National University

2 CONTENTS
• I. Overview of constitution
• II. Constitutional supremacy
• III. Separation of powers
• IV. The American Constitution
• V. The Vietnamese Constitution
• VI. Q&A
• VII. Homework evaluation
3
I) Overview of constitution
Every democratic state has a constitution. What is a constitution?
•
4 What is a constitution?
• The supreme law of a state
• “The fundamental and organic law of a nation or state, establishing the conception, character, and
organization of its government, as well as prescribing the extent of its sovereign power and the
manner of its exercise.”
— Black’s Law Dictionary
5 What is a constitution?
• A Constitution is a set of rules that:
Establish the duties, powers and functions of the various institutions of government
Regulate the relationship between and among the institutions
Define the relationship the state and the individual; i.e. define the extent of civil liberty (basic rights
and freedom)
6 Nature and purposes of a Constitution
1) It serves as a supreme or fundamental law
2) Establishes the basic framework and underlying principles of the government
3) Designed to preserve and protect the rights of the citizens
7 1) It serves as a supreme or fundamental law
• It is the charter that created a government
• It is binding all individual citizens and parts of the government
• It is the ultimate law; the law other laws must abide by
• It is the test of legality by government official
8 2) Establishes the basic framework and underlying principles of the government
• Prescribes the permanent framework of the system of government, and assigns to the different
department or branches, their respective powers and duties
• To establish certain basic principles by which the government is founded

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To establish certain basic principles by which the government is founded

9 3) Designed to preserve and protect the rights of the citizens
• It declares and defines the rights and duties of citizens.
• Most constitutions include a declaration of fundamental rights applicable to citizens.
• At a minimum, these will include the basic civil rights and liberties that are necessary for an open
and democratic society (e.g. the freedoms of thought, speech, association and assembly; due
process of law and freedom from arbitrary arrest or unlawful punishment).
•
10 Group Discussion
Which is the first written Constitution of the world?
When and in which background were the first constitutions established?
•
11 II. Constitutional supremacy
• Constitution is a supreme law to which all others law and public actions must conform and in
accordance with
• All constitutional violations shall be invalid
• Constitutional review is to assure the supremacy of a constitution
• The constitutional review power (i.e judicial review) is often exercised by ordinary courts, a special
constitutional court or a constitutional council
12 Group work
Please name States, which empower the constitutional review (or judicial review) to a constitutional
court (1); ordinary courts (2) and a constitutional council? What is the first State creating each
system?
• Constitutional Court:…
• Ordinary courts:…
• Constitutional Council:…
13 III. Separation of powers
• What is it?
This is the idea that a government functions best when its powers do not rest in a single authority
but are instead divided among different branches of legislative, executive and judiciary powers.
14 III. Separation of powers
• Separation of powers is a political doctrine originating from the writings of Montesquieu in The
Spirit of the Laws
• Montesquieu's approach was to present and defend a form of government which was not
excessively centralized in all its powers to a single monarch or similar ruler. According to him every
man entrusted with some power is bound to misuse it.
• In simple words Montesquieu's view is that concentration of legislative, executive and judicial
functions either in one single person or a body of persons results in abuse of authority and such an
organization becomes tyrannical.

15 III. Separation of powers

• There are three branches of government:
1. The legislative - which makes the laws or adopt new law or amend the law
2. The executive - which enforces the laws or make sure the laws are carried out

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2. The executive - which enforces the laws or make sure the laws are carried out
3. The judicial - which protects the laws or apply the law, and settle disputes and punish law-
breakers according to the law.
Q 1: Which government bodies exercise legislative, executive and judiciary powers?
Q 2: Which branches of power does the monarch in a constitutional monarchy belong to?

•
16 III. Separation of powers
• Separation of power also means checks and control among the powers. E.g. In the parliamentary
system
A Parliament may adopt a no-confidence vote in a government
The government, or cabinet, in turn, ordinarily may ask the State president to dissolve the
parliament
The courts may review the constitutionality of the law and executive regulations.
17 IV. The American Constitution
• Adopted in 1787 (the first & the oldest constitution of the world)
• 3 Parts
Preamble: Introduction, established the purpose of government
 Articles: 7 articles which provides guidelines for how the government will operate
Amendments: 27 amendments to the original documents, i.e the first ten amendments on
fundamental rights and freedoms (Bill of Right)
18 6 principles of the US Constitution
1. Popular Sovereignty
2. Limited Government
3. Separation of Powers
4. Checks and Balances
5. Judicial Review
6. Federalism

•
19

20

21

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22
Government powers are limited to what is written in the constitution.

Example: The police cannot search or seize your property without demonstrating cause and getting
a warrant.

23

24
Definition: Each branch of government has some power over the other two branches.

Purpose: Preventing any one branch from having too much power.

Example: If Congress makes a law , what can the President do if the president does not agree with it?
25

26
• Courts decide if government acts violate the constitution.
oFinal authority on what the constitution says.
• Marbury v. Madison established judicial review (1803)

27
• Power is divided between national, state, and local governments.

• Each level has its own responsibilities.

28 Its influence
• It can easily be argued that America's most important export has been the US Constitution.
• Its influence appears in similarities of phrasing and borrowed passages in other constitutions, as
well as in the principles of popular sovereignty, separation of powers and judicial review.
29 Question

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• Why the American Constitution is the longest-lived?

•
•
30 V. The Vietnamese Constitution
• Constitutional history: the first Constitution of 1946; the Constitutions of 1959, 1980, 1992 and
2013.
• The current Constitution of Vietnam is the Constitution of 2013.
31 Structure of the constitution
• The Constitution contains a Preamble and 11 Chapters: I) The Political Regime; II) Human Rights,
Fundamental Rights and Obligations of Citizens; III) Economy, Social Affairs, Culture, Education,
Science, Technology and Environment; IV) Defense of the Fatherland; V) The National Assembly; VI)
The President; VII) The Government; VIII) The People's Courts and the People's Procuracies; IX) Local
Authorities; X) The National Election Council, the State Audit Office; XI) Effectiveness of the
Constitution and the amendment to the Constitution.
32 Form of government and basic principles of the state
• The Constitution defines Vietnam as a socialist rule of law State of the people, by the people, and
for the people.
• Vietnam is a unitary state ruled by one party system with a co-ordination among State bodies in
exercising legislative, executive and judicial powers.
33 Basic institutions of the political system
• The Communist Party – the leading role
• The Government institutions – the central role
• The Vietnam fatherland front and its member social-political organization – basic foundation
34 The Communist Party of Vietnam
• The Communist Party of Vietnam is the founding and sole ruling party of the Socialist Republic of
Vietnam.
• The leading role over the state and society is guaranteed by Article 4 of the Constitution
35 The National Assembly
• The National Assembly is the highest representative body of the People and the highest body of
State power of the Socialist Republic of Vietnam.
• The National Assembly exercises constitutional and legislative powers, decides significant national
affairs and exercises supreme control over all activities of the State.

36 The State President

• The State President is the Head of State and represents the Socialist Republic of Vietnam both in
domestic and foreign affairs.
• The State President is the Head of State and represents the Socialist Republic of Vietnam both in
domestic and foreign affairs.

37 The Government
• The Government is the highest administrative body of the Socialist Republic of Vietnam, exercises
the executive power and is the executive body of the National Assembly.

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the executive power and is the executive body of the National Assembly.
• The Government is accountable to the National Assembly and shall report to the National
Assembly, its Standing Committee and the State President.

38 The People Courts and the People’s Procuracies

• The People’s Courts are the judicial bodies of the Socialist Republic of Vietnam, exercising the
judicial power.
• The Judges and Assessors are independent and shall only obey the law; interference with the trials
of the Judges and Assessors by bodies, organisations, and individuals is strictly prohibited.
• The People's Procuracies shall exercise the power to prosecution and control judicial activities.

39 The Vietnam Fatherland Front

• The Vietnam Fatherland Front is one of the basic state institutions.
• It is a political allied organization and voluntary union composed of various different political and
social organizations and representatives of different ethnic and religious groups and of Vietnamese
people residing abroad.
• Article 9 defines the aim of the Vietnam Fatherland Front and its member organizations as
establishing political base of the people's administration, fostering the tradition of national unity
and strengthening political and moral cohesion among people.
40 The social-political organizations
• The Vietnam Trade Union, the Vietnam Peasant Society, the Ho Chi Minh Communist Youth Union,
the Vietnam Women’s’ Society and the Vietnam Veteran Society are socio-political organisations
established on a voluntary basis that represent and protect the legal and legitimate rights and
interests of their members;
• They cooperate with others members of the Fatherland Front and unify the activities of the
Fatherland Front.

41
Q&A

42
Homework evaluation

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1 CIVIL LAW
(Part 1)
Asso.Prof. Dang Minh Tuan
VNU School of law – Vietnam National University

2 CONTENTS
• 1. Concept and Features of Civil law
• 2. Main areas of Civil Legal
• 3. Sources of Civil Law
• 5. Group working (Develop the case for the group presentations next week – moved from the
week 15)

3 I. Concept and Features of Civil law

• i. Origin of Civil Law
• ii. Concept of Civil Law
• iii. Need of Civil Law
• Iv. Basic Principles of Civil Law

4 i. Origin of Civil Law

• Civil law is the kind of law that evolved from Roman law, based on a written “civil code”. This was
adopted in France after the French Revolution in 1789. Called the Code Napoléon, it covered only
matters of private law:
The legal attributes of a person (e.g: name, age of majority)
The relationship between individuals (e.g.: marriage, adoption, parentage)
Property (e.g: possession, land boundaries)
The legal institutions governing or administering these relationships (e.g: wills, sates, leases,
partnerships)

5 ii. Concept of Civil law (1)

• Civil law can be defined as the body/branch of law (of a State’s legal system) that is concerned
with private relations between individuals or groups.
• Civil law as the private law, which deals with the private relationships in everyday transaction.
Private law V.s public law deals with public relationships (constitutional law, administrative law,
criminal law).
• In the US legal system, civil law is a body of law pertaining non-criminal private disputes among
individuals, corporations, and governments.
• In the Vietnamese legal system, civil law shall regulate property and personal relationships
between citizens, legal persons on an equal basis.
•
•
•

6 ii. Concept of Civil law (2)

• Civil law v. Criminal law
 Someone who violates a criminal law may be sentenced to death, jailed, fined, or placed on
probation.
 By contrast, someone who is liable under civil law may be ordered by a court to pay a sum of

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By contrast, someone who is liable under civil law may be ordered by a court to pay a sum of
money to another person or to take some other action to remedy a problem.
•
So for example, someone who attacks another person may be charged criminally with assault
and battery.
However, the victim may also pursue the matter civilly by suing the attacker for damages such
as broken glasses, medical bills, and lost wages that are related to the attack.
•

7 ii. Concept of Civil law (3)

• Civil law is close to commercial law. They are both private law which deal with private relationships
• The primary difference between civil litigation and commercial litigation is that civil litigation is a
lawsuit between individuals to enforce a legal right, whereas commercial litigation involves a case
between companies or businesses. Basically, commercial law covers any dispute resolution claims
where there is some sort of corporate involvement (US legal system)
• Vietnamese commercial law deals with commercial activities, mainly regulating the rights and
obligations of the parties in commercial transactions. However, many issues of
companies/business are applied according to Civil law such as contract, legal entities,
authorization, representation…

8 iii. The need for civil law

• Protect our civil rights: For example, our right to safely consume the products we buy, to purchase
a good that is not faulty and to enjoy living at home without constant noise and interruption from
neighbours.
• Impose a duty on others not to do anything to cause us harm. The duty not to cause harm is not
only imposed on an individual. It also applies to groups such as football clubs, schools, business
corporations and government agencies.
• Provide a remedy such as compensation in the event of a breach of a civil right. The main purpose
of a civil remedy is to return the injured person to his or her original position before the harm was
done.
•

9 iv. Basic principles of civil law

• Principle of Equality: Parties are equal in rights and obligations
• Principles of Voluntariness: Parties voluntarily participate in civil relations. No one is forced to be
in a civil relationship.
• Principle of Honesty and Credibility: Parties shall be honest, and credible in civil relationships.
• Legitimate civil rights and interests shall be protected. A person must suffer damage or loss as a
result of the infringement of their rights.
• Burden of proof. A person who believes his or her rights have been infringed upon bears the
burden of proving a case. In a civil case, the burden of proof rests with the person bringing the
dispute to court. This person is known as the plaintiff.
• In civil cases, a remedy seeks to compensate a plaintiff for loss or damage or injury suffered and
restore that person to the position (where possible) he or she was in prior to the infringement.
•
•

10 II. Main areas of Civil Law (1)

• 3 main areas of civil law are Tort, Contract and Property.

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3 main areas of civil law are Tort, Contract and Property.

• (1) Tort law recognized torts as civil wrongs and allows injured parties to recover for their losses
(trách nhiệm dân sự ngoài hợp đồng). Injured parties may bring suit to recover damages in the
form of monetary compensation or for an injunction, which compels a party to cease an activity.
• Civil law covers a broad area of types of conduct that the law has identified as wrong. These
‘wrongs’ are referred to as civil wrongs. A student may be injured because of a teacher's
carelessness; a patient may be given bad or incorrect advice by a doctor; an employee may be
injured at work as a result of an unsafe workplace.
•

11 II. Main areas of Civil Law (2)

• The harm or injury suffered as a result of a civil wrong can take many forms, including:
• physical injury — for example, broken bones, loss of limbs
• nervous shock — for example, post-traumatic stress syndrome (hội chứng căng thẳng sau chấn
thương), severe depression
• damage to property — for example, damage to a car, fire damage to a house
• financial loss — for example, loss of present and future income because of physical injury or
death,
• loss of company profits, loss of a good reputation — for example, the publication of false
statements that damages a person's reputation.
• These types of civil wrongs all come under the umbrella of civil law.
•

12 II. Main areas of Civil Law (3)

• (2) Contract law is concerned with legal agreements. If one party fails to carry out his or her side
of a bargain, that person can be sued for breach of contract (Trách nhiệm dân sự theo hợp đồng
khác với Tort – trách nhiệm dân sự ngoài hợp đồng) .
• (3) Property law is the area of law that governs the various forms of ownership in real property
(land and buildings) and personal property, including intangible property such as intellectual
property.
•

13 II. Main areas of Civil Law (4)

• 2 main areas of Civil Law in Vietnamese Civil Law
• Property relationships
• Personal relationships
Personal relationships related to a property (as intellectual property rights)
Personal relationship not related to a property (right to honor, dignity, privacy…)

14 III. Sources of Civil Law (1)

• Constitution (basic provisions on personal and property relationships)
• Civil Code (Belgium, Brazil, Indochina, France, Germany Italy, Japan, Netherlands, Nordic countries,
Northern Africa, Portugal, Spain, Latin America, Switzerland
• French and German Code are among the most influential civil codes in the world
French Civil Code (1804): I. Persons; II. Property; III. Ways one acquired property
German Civil Code (1896, eff. 1900): I. General part; Law of obligations; III. Law of property; IV.
Family law; V. Law of succession.
• Vietnamese Civil Code (2015): General Provisions; Specific provisions on property rights, contracts,
non-contractual compensation for damage.

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• Other laws (such as in Vietnam: Law on Marriage and Family; Law on Children;
• Other sources: Judicial precedents; legal customs…
15 III. Sources of Civil Law (2)
Vietnam:
• Application of practices: In cases where it is neither provided for by law nor agreed upon by the
parties, practices may apply but they must not contravene the principles provided for in Article 3
of this Code.
(Art 5 Civil Code).
• Application of analogy of law, case law and justice:
• In cases where an issue rises under scope of civil law which it is neither provided for by law nor
agreed upon by the parties nor, nor applied by practices, analogy of law shall apply.
• In cases where it is impossible to apply analogy of law as prescribed in Clause 1 of this Article,
basic principles of civil law provided for in Article 3 of this Code, case law, and justice shall apply.
(Art. 6 Civil Code)

16
Group working

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1 CIVIL LAW
(Part 2)
Asso.Prof. Dang Minh Tuan
VNU School of law – Vietnam National University

2 CONTENTS
• 1. Contract law
• 2. Intellectual Property Law
• 3. Succession Law
• 4. Marriage Law

3
1) Contract Law

4 A Contract
• A Contract is an agreement between natural persons, legal persons or other organizations with
equal standing, for the purpose of establishing, altering, or discharging a relationship of civil
rights and obligations.

5 Features of a Contract
• 1) Legitimate acts between equal subjects
• 2) The agreement of meeting of minds
• 3) Contracts aim at incurrence, changing and termination of a relationship of civil rights and
obligations.

6 Formation of a Contract
• A contract is concluded by the exchange of an offer and an acceptance
• An Offer: An offer is a party's manifestation of intention to enter into a contract with the other
party. The one who makes an offer is the offer or while the one who receives it is the offeree.
• Acceptance: An acceptance is the offeree's manifestation of intention to assent to an offer.

7 Forms of Contract
• A contract may be made in a writing, in an oral conversation, as well as in any other form.
• A contract shall be in writing if a relevant law or administrative regulation so requires.
• A contract shall be in writing if the parties have so agreed.

8 Terms of a contract
• The terms of a contract shall be prescribed by the parties, and generally include the following:
• a. names of the parties and the domiciles thereof;
• b. subject matter;
• c. quantity;
• d. quality;
• e. price or remuneration;
• f. time, place and method of performance;
• i. liabilities for breach of contract;
• j. method of dispute resolution.

9 UNDP’s Model Contract for Civil Works

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The main contents

• 1) Contract Documents (General Information)
• 2) Obligations of the Contractor
• 3) Price and Payment (2 options)
• 4) Special conditions
• 5) Submission of invoices
• 6) Time and manner of payment
• 7) Modifications
• 8) Notifications
•

10
2) Intellectual Property Law

11 Concept and Features of Intellectual Property

• Concept: Intellectual Property (IP) rights combines the legal rights of the inventor of intellectual
products and the owner of industry & commerce logo.
• Features of IP Law: 1) Exclusive; 2) Including both personal rights and property rights; 3) Produced
by the affirmation of the Administrative Organ; 4) Its objection is a kind of intangible property 5)
Locality.
• IP Rights: 1) Copyrights; 2) Patent Rights; and 3) Trademark Rights

12 Copyrights
• Concept “Copyright” means that natural persons, legal persons, non-legal persons have the right
to create a certain kind of work, and he can enjoy the right of publication, the right of authorships,
the right of alternation, the right of integrity, the right of exploitation and the right of
remuneration in accordance with the Law.

13 Examples of copyright works?

• A novel.
• A poem.
• A photograph.
• A movie.
• Lyrics to a song.
• A musical composition in the form of sheet music.
• A sound recording.
• A painting.

14
• Do copyrights give lifetime protection?
•

15 Do copyrights give lifetime protection?

• The Berne Convention states that all works except photographic and cinematographic shall be
copyrighted for at least 50 years after the author's death, but (State) parties are free to provide
longer terms, as the European Union did with the 1993 Directive on harmonising the term of
copyright protection.

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copyright protection.
16 Patent rights
• Patent Rights means the Patent Administrative Organ will title applicant of patent rights and heirs
the right to exclusively use his inventions- creations in a certain period.

17 The Great Eight – 8 Wonders of the World of Patents

• The Lightbulb.
• The Internal Combustion Engine.
• The Telephone.
• The Computer.
• Bluetooth.
• The Maglev (Magnetic levitation)
• The FireEye Malware System.
• The Google PageRank.
•

18
• Do patents gives lifetime protection?

19 Do patents gives lifetime protection?

• No! Anyone can use an invention without special permission or licensing once the patent on that
invention has expired and it has become part of the public domain.
• As per the Indian Patents Act, a patent is granted on a product, process or an invention for a
limited period of 20 years. Hence, the life span for a patent in India is 20 years from the date of
filing the patent application. You cannot extend the life of the patent.
• Vietnam, the term of patent in the US, UK and many other countries is 20 years.

20 Trademark Rights
• Trademark Rights, or the exclusive right to use a trademark, means the owner of a registered
trademark exclusively using his trademark in respect of his products or services in a certain period
according to the law.

21 Types of trademarks
• Brand names like Apple, McDonald's, and Dolce & Gabbana.
• Product names like iPod and Big Mac.
• Company logos like the golden arches at McDonald's and NBC's peacock logo.
• Slogans like Capital One's "What's in your wallet?" and McDonald's "I'm lovin' it"
•

22 Term of trademarks
• The term of trademark registration can vary, but is usually ten years.
• In the United States, a federal trademark can potentially last forever, but it has to be renewed
every ten years.
• As in Vietnam: Trademark shall be valid in Vietnam from the date of granting until the end of ten
(10) years counting from the filing date and may be renewed after 10 years.

23
3) Law of Succession

24 The Concept &Basic Principles

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• Inheritance means the system that transfers the property owned by a citizen personally at the
time of his death to heirs. Law Of Succession is the total legal norms that regulate property
inheritance relationship.
• Basic Principles of Law of Succession:
Men and women are equal
The old and the young should be protected, and a principle of unity and mutual-help
Right and duty shall be relevant

25
• Types of succession:
i) Statutory Succession; and ii) Testamentary Succession

26 Statutory Succession
• Statutory succession means a way of property inheriting that transfer the decedent's property to
the heirs following the inheriting range, order, and principles provided by law directly after the
death of the decedent.
• The range of heirs at law and the order of succession: Successors same in order shall inherit in
equal shares.
• 1st range: spouse, children, parents
• 2nd range: brothers and sisters, paternal grandparents, maternal grandparents
•…
•

27 Testamentary Succession
• Testamentary Succession means a inheriting way after the death of a decedent, his property
would transfer to the heirs appointed according to the will made before his death.

28 Condition for Legacy

• Testators should have the capacity for civil conduct
• Wills shall manifest the genuine intention of the testators
• Contents of the will should not breach laws or social public interests.

29 Case Study
• Vụ án “Tranh chấp thừa kế tài sản” (Link tóm tắt vụ án: https://vksndtc.gov.vn/tin-tuc/cong-tac-
kiem-sat/thong-bao-rut-kinh-nghiem-ve-vu-an-tranh-chap-thua-d10-
t8607.html?Page=123#new-related)
• Which types of succession in this case?
• Why did Mr C and Mr G sue the case? And what was the decision of the Court of the First Trial?
• Why did Mr D appeal the case? And what was the decision of the Court of Appeal?
•
•
•
•

30
• 4) Marriage Law

31 The concept and basic principles

• Marriage law refers to legal norms that regulate marriage and family relationship. Marriage law

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regulate marriage and family relationship which involves personal and property relationship that is
caused by personal relationship.
32 Basic principles of Marriage law
• Free choice of partners
• Monogamy
• Equality between man and woman
• The lawful rights and interests of women, children and old people shall be protected
• Respecting the old and protect the children
• and a principle of unity and mutual-help
•

33 The main areas of marriage law

• Marriage contract
• Family Relationship
• Divorce

34 Cat Phuong & Kieu Minh Tuan Case Study

• They have not been married, but lived together as husband and wife. And now they have just
announced the end of this relationship.
• Is this relationship regulated by the Vietnamese Law on Marriage and Family?
• Has this relationship been illegal?
• Shall they have responsibilities as husband and wife while living together as husband and wife?
• If the conflicts arises (related to their children, properties) during living together or after the end
of the relationship, what are the legal solutions?
•

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1 International law
(Part 1)
Asso.Prof. Dang Minh Tuan
VNU School of law – Vietnam National University

2 CONTENTS
1. Definition
2. History
3. Functions
4. Basic principles and terminology
5. Main disciplines
6. International law vs domestic law
7. Sources of international law
8. Key documents in international law
9. Key institutions
10. Debate
11. Q&A
•

3 What is international law?

• International law is the set of rules generally regarded and accepted as binding in relations
between states and between nations.
- as defined by Jeremy Bentham

4 What is international law?

• International law defines the legal responsibilities of States in their conduct with each other, and
their treatment of individuals within State boundaries.
• International law's domain encompasses a wide range of issues of international concern, such as
human rights, disarmament, international crime, refugees, migration, problems of nationality, the
treatment of prisoners, the use of force, and the conduct of war, among others.
• International law also regulates the global commons, such as the environment and sustainable
development, international waters, outer space, global communications and world trade.
(UN website)
•

5 Early History
• Basic concepts like treaties have existed for thousands of years (e.g BC – between Lagash and
Umma in Mesopotamia (Lưỡng Hà) setting a boundary between the two city-states)
• Jus gentium (laws governing interactions between private Roman citizens and foreigners) in
Roman law – basic ideas of fairness, natural law still form part of modern international law
• Increased international trade after the fall of the Roman Empire served as a catalyst for developing
new rules between states (a sort of code of conduct) – basics of international trade and maritime
law

6 History of modern international

• Hugo Grotius – father of international law

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Hugo Grotius – father of international law

• By the middle of the 17th century, a high amount of international practices, rules, treaties were
present
• Grotius stood out in compiling these all together in his work called De Jure Belli Ac Pacis Libri Tres
(On the law of War and Peace) – this book is seen as the starting point for modern international
law
• Unlike his predecessors and many contemporary scholars, Grotius did not believe that natural law
was derived from God, he thought it came from an essential universal reason, common to all men –
it was derived from principles
• Two basic axioms: 1. all promises must be kept; 2. harming another requires restitution. These two
axioms became the basis of international law
7 History of modern international
• Treaty of Westphalia 1648 (ending the 30-year war)
Held in the form of a major diplomatic congress with over a 100 delegations
Established state sovereignty as cornerstone of international order
The notion of balance of power – inter-state aggression to be held in check by it – introduced
norm to against interference in another state’s domestic affairs
Religious worship to be decided independently by individual Imperial States (within the Holy
Roman Empire) – Protestants and Catholics redefined as equal before the law
- One could freely practice his religion even if it was not the main religion of the state he lived in
Independent Dutch Republic was created – a safe haven for European Jews
Independence of Switzerland was formally recognised

8 History of modern international

• League of Nations (founded in 1920; dissolved in 1946)
• Created after the WW1 as a response to an outcry for rules of warfare to protect civilians and curb
invasions
• Established the Permanent Court of International Justice (to avoid states resorting to war) and the
International Labour Organisation
• First Geneva Conventions dealing with humanitarian relief (cứu trợ) in wartime
• Hague Conventions 1899 and 1907 on rules of war and peaceful settlement of international
disputes
• Established precursor (tiền thân) to many UN organisations
• Failed for a combination of origins (as a “League of Victors”), structural flaws (almost all decisions
required unanimity), lack of global representation (many states never joined), the idea of collective
security (states might have had to act against friendly states in some cases), general unwillingness
to disarm

9 History of modern international

• United Nations (founded in 1945)
• The main reason behind establishing the UN was to avoid another World War due to the
unimaginable horrors and losses suffered during the WW1 and WW2 (especially the latter)
• UN now has almost 200 members states (51 at its founding)
• Main objectives are to maintain international peace and security, promote human rights, foster
social and economic development, protect the environment, provide humanitarian aid
•

10 Functions of international law

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• 1. To establish peace and order in the community of nations and to prevent the employment of
force, including war, in all international relations;
• 2. To promote world friendship by levelling the barriers, as of color or creed (tín ngưỡng);
• 3. To encourage and ensure greater international cooperation in the solution of certain common
problems of a political, economic, cultural or humanitarian character; and,
• 4. To provide for the orderly management of the relations of states on the basis of the substantive
rules they have agreed to observe as members of the international community.

11 Basic principles and terminology

• State sovereignty (Chủ quyền quốc gia) – “the supreme, absolute and uncontrollable power by
which an independent state is governed and from which all specific political powers are derived; the
international independence of a state, combined with the right and power of regulating its own
affairs without foreign interference” (West’s Encyclopedia of American Law, 2nd edn, 2008)
• Human dignity (phẩm giá con người)– universal value protected by all branches public
international law collectively
• State responsibility (trách nhiệm quốc gia)– any state that violates its international obligations
must be held accountable (i.e. stop illegal action and make reparations to injured parties); part of
customary international law; binding on all states
12 Basic principles and terminology (continued)
• Jus cogens (các nguyên tắc cơ bản) – peremptory norms; the most fundamental rules of
international law, recognised and accepted by the international community as rules with no
exceptions (as defined in Article 53 of the Vienna Convention on the Law of Treaties). e.g. right of
all peoples to self-determination, the prohibition on acquiring territory by force, prohibition of
genocide (diệt chủng), slavery and torture (tra tấn)
• Erga omnes (nghĩa vụ của tất cả)– violation of jus cogens rules give rise to erga omnes (literally,
“towards all”) obligations; this means that all states have the right to take action when one violates
fundamental international law principles; e.g. violation on the right to peoples self-determination,
genocide, torture, racial discrimination

13 Basic principles and terminology (continued)

• Customary international law (Tập quán pháp quốc tế) – aspects of international law established by
the general practice of states and what states have accepted as law; its rules are often codified in
treaties; examples: some jus cogens norms, immunity of visiting foreign heads of state
• Consent (đồng ý) – except for established jus cogens or customary international law, state consent
is needed for all treaties or legal norms to be binding
• Soft law (luật mềm) – non-binding rules; in international law: resolution and declarations of the
UN General Assembly, codes of conduct, codes of practice, action plans, etc.; have the potential to
become hard laws in the future
• Recognition (công nhận) – by this principle, one state formally acknowledges the other

14 Basic principles and terminology (continued)

• Good faith (Thiện chí) – this principle is difficult to define; states should deal honestly and fairly
with each other, need to represent their motives and purposes truthfully, refrain from (tránh)
taking unfair advantage that might result from a literal and unintended interpretation of the
agreement between them (as defined in D’Amato’s Encyclopedia of Public International Law
(1992))
• Self-defence (Tự vệ) – defined in Article 51 of the UN Charter: “Nothing in the present Charter shall
impair the inherent right of collective or individual self-defense if an armed attack occurs against a

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impair the inherent right of collective or individual self-defense if an armed attack occurs against a
member of the United Nations, until the Security Council has taken the measures necessary to
maintain international peace and security. Measures taken by members in exercise of this right of
self-defense shall be immediately reported to the Security Council and shall not in any way affect
the authority and responsibility of the Security Council under the present Charter to take at any time
such action as it deems necessary in order to maintain or restore international peace and security.”

15 Main disciplines of international law

• Public international law
Governs the relationship between states and international entities (mainly through treaties)
It has several fields: treaty law, international human rights law, international humanitarian law (or
laws of war), refugee law, international criminal law, law of the sea
• Private international law
Otherwise called “conflict of laws”
Governs relationship between private entities
Main concern is international commercial arbitration, regulated by the New York Convention 1958
Addresses questions such as which jurisdiction may hear a specific case and the law of which
jurisdiction applies to the issues to be discussed in a given case
• Supranational law
• Rules governing supranational organisations (e.g. international courts)
• Concerns regional agreements (e.g. those of the EU) – when do supranational systems override
national laws

16 International law vs domestic law

• Creation & sources: Domestic law comes from legislature (a body elected by citizens to pass laws
on their behalf) and customs VS international law consists of treaties and customs
• Enforcement: domestic law has a common legislature, executive (Government) and judiciary VS
international law lacks these so punishment/enforcement is problematic
• Unanimity (requiring all to vote in the same way) vs majority (usually requiring either 51% or 2/3
to vote in favour to pass a legislation)
• Monism (international law automatically part of domestic law) vs Dualism (domestic measures
needed to make international law part of national law)

17 Sources of international law

• Primary sources:
Jus cogens
Customary international law
Treaties
General principles of international law
• Secondary sources:
Case law of international courts and tribunal
Academic literature

18 Key documents in international law

• Declaration of United Nations 1942
• United Nations Charter 1945
Chapter VII – Use of Force, Sanctions, Dispute Resolution
Chapter XIV – Statute of the International Court of Justice
• Geneva Conventions 1949 (mandating the International Committee of the Red Cross (ICRC) to

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protect victims of armed conflicts)

• North Atlantic Treaty 1949
• International Covenant on Civil and Political Rights (ICCPR) 1966
• International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966
• Vienna Convention on the Law of Treaties 1969
• Marrakesh Agreement 1995 (establishing the WTO)
• Rome Statute of the International Criminal Court 1998
• and many others…

19 Key institutions
• United Nations:
UN General Assembly
UN Secretariat (Secretary-General António Guterres)
UN Security Council
UN Economic and Social Council
International Court of Justice
Specialised agencies include: The UN Educational, Scientific and Cultural Organization (UNESCO);
United Nations Children’s Fund (UNICEF); UN Refugee Agency (UNHCR); Food and Agriculture
Organization of the UN (FAO); World Health Organization (WHO); World Bank; International
Atomic Energy Agency, etc.
• Outside of the UN framework: International Committee of the Red Cross (ICRC); The North
Atlantic Treaty Organization (NATO); WTO (The World Trade Organization).

20 Debate
• International law is law or not?
• The means to ensure compliance with international law differ considerably from those applying in
internal law. The latter rely primarily on enforcement by the authority of the state which imposes
obedience. Such superior authority does not exist in international relations; international law
rather relies on voluntary compliance.
• As there is a certain strand of opinion denying the character of international law as law because of
the (alleged) lack of effective enforcement, the question is whether, in the light of the compliance
problem, is really law.

21 Reponses to non-compliance of international law

1. Treaty-based mechanism (such as imposing sanctions on an errant State Party, or withdrawing
privileges otherwise available under the treaty.
2. The Security Council: the Security Council with its power to exercise authority over all matters of
international peace and security (considered to reach the level of threatening international peace
and security)
3. International Court of Justice: This main body of the UN settles legal disputes submitted to it by
States in accordance with international law.

22 Reponses to non-compliance of international law (continued)

4. Countermeasures: Countermeasures are actions taken by one State (or a group of States) in
response to another State’s violation of international law.
5. Withdrawal or termination: It is accepted in international law that unilateral withdrawal from a
treaty, or the termination of the treaty, may be a lawful consequence of a wrongful act by another
party.

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party.
6. Other possible responses to non-compliance:
• States (and also non-State actors) can name and shame those in violation of a treaty
• In addition, national or regional tools can be employed to respond to serious cases of
noncompliance.

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1 International law
Private international law
(Part 2)
Asso.Prof. Dang Minh Tuan
VNU School of law – Vietnam National University

2 CONTENTS
1. Definition
2. Nature and scope
3. Difference between private international law and other laws
4. Vietnamese private
5. Q&A
•

3 Definition
• Private international law (PIL)/conflict of laws is a branch of law which provides procedures and
guidelines to assist a judge in private litigation, to select a court and a law to which a case is
closely connected, which might appropriately be applied in resolving a legal dispute before the
court arising out of a set of fact, events or transactions which have a foreign element.
• It is that part of law which comes into operation whenever the court is faced with a dispute that
involves an foreign element.
•

4 Nature & Scope

• Foreign element means any fact relevant to the issues involved in the proceedings which has a
connection with a territorial unit other than the territorial unit where the court is dealing with the
proceedings.
• The reference (s) to a foreign element may be three natures – personal, local, or material.
• Examples of foreign element:
Parties maybe citizens of a foreign country or
Domiciled in a foreign country
The transaction of any nature took place abroad
Object of the dispute (Ex. property) is situated in another state…

5 Nature and Scope

• PIL contains the following basic nature:
• Its subject matter always includes a foreign element;
• One of its prime nature is the pursuit and application of the appropriate legal system and
• Jurists have been more influential in this branch of the law than is typical with other legal subjects.

6 Nature and Scope

• IPL mainly deal with 3 major sub-divided but interrelated areas:
Judicial jurisdiction
Choice of law
Recognition and enforcement of foreign judgments and foreign arbitral awards.

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7 Difference between IPL and other national branches of law

• IPL is part of national laws (law made by a state)
IPL is one department of law but not one amongst the peer departments (private law) such as
family, contracts, and tort. It does nothing on its own. It deals with most private cases of civil and
commercial nature so long as they contain a foreign element.
It is not also concerned with public cases like criminal, revenue, customs, constitutional and
administrative cases.
• It is named as “private international law” , because it has a “foreign element”, so it is the question
of which (national/foreign) judicial jurisdiction, law will be relevant to the settlement of the case;
and the question of recognition and enforcement of foreign judgments and foreign arbitral
awards.

8 Difference between public and private international law

• 1. As to consent: Public international law based on the consent of the state. PIL is not based on
the consent of the states.
• 2. As to subjects/objects : Public international law regulates relationship of states and determine
rights and duties of the subject states at international sphere. IPL regulate relationship of
individuals.
• 3. As to conflict of laws: Public international law does not involve in conflicts of laws. PIL involves
in the conflicts of laws.
• 4. As to nature: Public international law is same for all the states. PIL may be different in various
states.

9 Difference between public and private international law

• 5. As to sources: Public international law has its sources in treaties, custom etc. etc. PIL has its
sources in the legislation of the individual state to which the litigant belongs and international law
(treaties/customs).
• 6. As to application: Public international law applicable to criminal as well as civil cases. PIL is
applicable to civil cases only, which present themselves for accession of courts of the state.

10 Difference between public and private international law

• 7. As to jurisdiction: Public international law does not involves determination on the question of
determination. PIL determines court which will have jurisdiction to decided issue in question.
• 8. As to scope: Public international law has wider scope. it is of universe character. Private
international law has lessor scope.

11 Private international law in Vietnam

• Foreign elements are clearly identified in Civil Code:
• Foreign persons, natural or legal, or overseas Vietnamese;
• The objects of such civil relations exist overseas, such as inheritances in foreign countries;
• The legal events serving as the basis for establishing, altering or terminating such civil relations
occur overseas. For instance, two Vietnamese citizens are married to each other overseas

12 Private international law in civil relations

The basic principles for solving the conflicts of law in the cases with a foreign element in
Vietnamese private international law:
- Priority is given to the application of international treaties

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- Based on the agreement of the parties (if the international treaties and Vietnamese law allowed to
choose a legal system)
- Applying the law of the country with the closest connection
-

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1 CRIMINAL LAW
Asso.Prof. Dang Minh Tuan
VNU School of law – Vietnam National University

2 CONTENTS
• Overview on criminal law
• Overview on death penalty

3 Concept
- A crime is an unlawful act punishable by a state or other authority.
- The Oxford English Dictionary: ‘An action or omission which constitutes an offence and is
punishable by law’.
- Vietnam Criminal Code 2019, Article 8: Crime is a behavior that is dangerous to the society and
prescribed in the Penal Code, committed intentionally or unintentionally by a person with criminal
liability capacity or a commercial legal entity, violating the independence, sovereignty, unity,
territorial integrity of the Fatherland, violating the political regime, economic regime, culture,
national defense, security, order, social safety, rights and legitimate interests of organization,
infringing on human rights, legitimate rights and interests of citizens, infringing on other areas of
the socialist legal order that, according to the provisions of this Code, must be criminally handled.

4 Classification of crime
- Less dangerous crime: highest punishment is 3 years of imprisonment.
- Dangerous crime: highest punishment is 7 years of imprisonment.
- Very dangerous crime: highest punishment is 15 years of imprisonment.
- Special dangerous: highest punishment is 20 years of imprisonment, life sentence or death penalty.
5 Constitute of crime
Constitute of crime is the specific indication of each crime that fixed in the Criminal Code.
- Object of crime: social relation that the crime violate
- Objective side of crime: the act, the consequence, time, location.v.v. of the crime
- Subjective side of crime: the error, the motive, the purpose of crime
- Subject of crime: who did the crime

6 Overview of death penalty

Death penalty is the state-sanctioned practice of killing a person as a punishment for a crime, usually
following an authorised, rule-governed process to conclude that the person is responsible for
violating norms that warrant said punishment.
7 RED: Maintain the death penalty in both law and practice
YELLOW: Abolished in practice (no execution in over 10 years and under a moratorium)
GREEN: Abolished in law, except in exceptional circumstances, such as war
DARK GREEN: Completely abolished

8 Guide for seminar

- Purpose of death penalty
- Cost/benefit of death penalty
- Death penalty from moral views
- Death penalty from religious views

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- Death penalty from religious views

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1 Dispute Settlement Mechanisms

& Mid-term Exam Summary
Asso.Prof. Dang Minh Tuan
VNU School of law – Vietnam National University

2 CONTENTS
1. Dispute settlement mechanisms
2. Mid-term summary
3 Dispute settlement mechanisms
at international level
I. Settlement of dispute through Diplomacy
1.1. Negotiation
A process of reaching an agreement by discussion.
Normal diploma channels
Competent authorities
Mixed or joint commissions
Summit meetings

4
Normal diplomatic channels: Consultation under WTO Dispute Settlement
• Article 3(3) of the DSU (Dispute Settlement Understanding) provides that on request parties shall
enter into consultations in good faith within a period of no more than 30 days after the date of
receipt of the request. According to article 3 (7), if such consultations fail, the establishment of a
panel may be requested.

5
• Competent authorities
Transfer pricing is one of the many complex tax issues that multinational corporation face.
Transfer pricing is one of the most significant tax issues being considered at a global level by
governments, tax administrations and international bodies such as the Organization for Economic
Cooperation and Development (OECD) and EU.
The competent authorities’ function seeks to resolve international pricing disputes through
negotiations with tax authorities of treaty partner jurisdictions.

6
• Summit meetings:
Summit meetings’ are defined as ad hoc meetings where heads of state and/or heads of
government and/or foreign ministers from at least 2 of the big powers are present.

7
1.2. Mediation
The use of 3rd party who transmits and interprets the proposals of the principle parties
Only occur when all the parties to a dispute consent to it
• 1.2. Mediation
• The use of 3rd party who transmits and interprets the proposals of the principle parties.
• Good offices: mediators provide a channel of communication only

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• Conciliation: mediators make a formal investigation and present a formal proposal

8
• 1.3. Inquiry
• A process used to determine a disputed fact(s), which focus only in a particular incident.
• In the early 1900s, Russia was in conflict with Japan. Russian fleets (Hạm đội) were directed to
beware of torpedo boats (Tàu phóng ngư lôi) disguised as fishing boats. One dark night in the
North Sea, the Russian fleet saw a green rocket shot into the sky. The rocket was fired by a group
of British fishing boats and was a directional indication from the leader of the fishing expedition to
others in the expedition. Russian lookout men saw the fishing boats but thought they looked
suspicious, and were potentially torpedo boats. The Russian fleet opened fire, killing 2 fishermen
and causing severe damage to the fishing fleet.
• Great Britain wanted to bring the Russian admiral to trial. Russia did not want to submit its
admiral to a British trial, but eventually agreed to submit the question of liability and punishment
to the Permanent Court of Arbitration. The commissioners hearing the inquiry were 5 admirals,
from Great Britain, Russia, the United States, France, and Austria.

9 II. Settlement of Dispute in international tribunals

• 2.1. International Court of Justice
• Functions: The ICJ has a dual role: to settle in accordance with international law the legal disputes
summited to it by states, and to give advisory opinions on legal questions referred to it by duly
authorized international organs and agencies.
• Composition: The ICJ is composed of 15 judges elected to nine-year terms of office by the United
Nations General Assembly and Security Council sitting independently of each other.
• Jurisdiction: two kinds of cases, (1) those between states and (2) those requested by organs or
specialized agencies of the UN.

10
• 2.2. International Criminal Court
• The ICC is an independent, permanent court of last resort that tries persons accused of the most
serious crimes effecting the international community.
11 Dispute settlement mechanisms
at national level
• Conciliation (Self conciliation or by a local committee of conciliation – Ban hòa giải cơ sở)
• Trials by courts (civil, commercial, administrative, criminal justice)
• Settlement of complaints and denunciations through administrative procedures
• Q: Which mechanisms are better?

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Mid-Term Summary

13 Sample
• 8 Multiple-Choices: 0.5/right answer – 4 points
• 2 short essays: 3 max/answer – 6 points

14 Structure of an essay
• Introduction (definition; background; question and your point of view): 0.5 point
• Discussion (presenting your points of view with arguments by using theories, practices, context of
country; comparison with other countries, international law…): 2 points

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• Conclusion and further development: 0.5 point

•
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Essay 1
Distinguish between the role of President in the Parliamentary system and Presidential system
16 Introduction
Around the world, many forms of government are running. In leading countries, there are two
predominating forms of governments, which are Parliamentary system and Presidential system.
Both forms of governments, for most of the case, has the President. From my own opinion,
Presidents in Presidential System have more executive power than those in Presidential System.

17 Discussion
• In Presidential system, Presidents have executive power. They are directly elected by the people via
a nation-wide voting. Another distinct characteristics of President in Presidential system is that, as
Presidents belong to the Executive branch, they are seperated from the legislative branch in the
system. The Presidents do not derive their power from the Legislative branch. Plus, based on
"Check and Balances" principle, both branches have different powers to prevent the other branch
from being to powerful, which is not the case in Parliamentary system. One famous example of
the Presidential system is the US, in every four year, there is a nation-wide system to choose the
President, and the Paliarment is not the only one who directly appoint the President.

18 Discussion
• Meanwhile, in Parliamentary system, the President plays a more statutory and ceremonial role. The
executive role is assumed by the head of governement, namely the Prime Minister. He/she is
elected by the parliament and accountable before the parliament. In this system, the Executive
and the Legislative branches are more closely linked. The Germany's form of Government is one
example. President was ellected by a small group of people, and his role was more resembling the
Monarch in the UK, rather than similar to the President in the US. And it is the current German
Prime Minister, with his Cabinet, that lead the whole country.
•

19 Conclusion
• To conclude, the President in the Paliarmentary system is more ceremonial and less executive than
one in the Presidential system. Whereas, the Legislative and Executive branches in the Presidential
system are more seperate.

20
Essay 2
In the case "Vietnam police forced a woman to test for Covid-19 in Binh Duong", many legal
experts argued that the rule of law was violated. Some others thought that the governmental
measures used in this case were necessary for prevention from the spread of the Covid-19. Discuss
both views and give your opinion

21 Introduction
Rule of Law has long been an idealistic concept of how the legal system should function in a
civilized society. Like many other countries in the world, Vietnam is also a rule of law state. However,
the nation's overall rule of law ranking is still insignificant, around 85th place out of 128 countries.

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In Vietnam, there are still some cases where the violation of rule of law has been put into question.
Notably, the case "Vietnam police forced a woman to test for Covid-19 in Binh Duong" has stired
up many debates. Some argued that the rule of law was breached; whereas, other claim that the
police action is accepted in case of urgent Covid19 situation. From my own opinion, although the
emergency argument is understandable, the rule of law in this case is clearly violated.

22 Discussion
On the one hand, the case was the obvious violation of the rule of law. Firstly, one essence of "Rule
of Law", which is "Absence on the arbitrary power on the part of the government", has been ignored
in Binh Duong's woman case. The police still abused their power to force the woman, without any
approval of the law. In this case, they have determined the law, not be determined by law, which is
totally against the "Rule of Law". Secondly, Supremacy of Law, namely "No man is punishable or can
lawfully be made to suffer in body or goods except for a distinct breach of law established in the
ordinary manner before the ordinary courts of the land", is also violated. The woman should be
presumed innocent and no one can inflict pain to her body until she is proved guilty in the court. In
this case, the woman was punished even when she had not been proved guilty. For these two
reasons, the Rule of Law was absent in this case.

23 Discussion
On the other hand, the violation is understandable in case of emergent Covid-19 situation. If the
woman is not tested timely, she could spread the virus to many more people. Meanwhile, a trial
might take time to proceed. If the police wait until then to take action, it would be too late to
prevent the Covid19 viruses. This sense of emergency has made the police more rushed in their
approaches, which then turned into aggressive and more or less violant action. However, the
emergency cannot justify for the violation of "Rule of Law". If a nation has recognized itself as "Rule
of Law" state, it has to fully obey the principles. No one can be above the law and no exception can
be made. This is essential to keep the law equal and just for everyone. The Binh Duong case can be
solved by streamlining the trial procedure to be faster and leaner, not by ignoring the presence of
the court and the police taking whatever actions they want.

24 Conclusion
In conclusion, I believe that the Bind Duong case was the clear violation of the "Rule of Law". Apart
from this case, there are also many other cases around Vietnam that have not been reported onto
the social media. This is also the reason why Vietnam's "Rule of Law" ranking is so low compared to
its international peers. In order to enhance its ranking, Vietnam has to strictly follow principles of
"Rule of Law" and execute "Responsiblity, Openess and Transparency". Cases where Rule of Law is
violated, like this one, should be equally punished, regardless of status in society or local
community.

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1 VIETNAM BECOMES A RESPONSIBLE AND ACTIVE MEMBER OF INTERNATIONAL COMMUNITY

2 I. The progress of being a member of international organizations

• Before 1975: the international relationship of Vietnam and other countries was very restricted. The
purpose of the foreign affair was to serve the mission of liberating and unifying country.
• 1975 – 1986: the first step of international integration
- 1977: Vietnam became a member of United Nations
- Vietnam also inherited the member position of the South Vietnam in: IMF (1976), UNESCO (1976),
World Bank (1976)
- After the commencement of Campuchia War (1978), the international relation ship of Vietnam was
also restricted

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• 1986 – 2007
- After the Doi Moi, Vietnam is more actively took part in the international integration
- 1992: Vietnam took part in ILO
- 1995: Vietnam participated ASEAN
- 1998: Vietnam became a member of APEC
- 2007: Vietnam was accepted as a member of WTO after 12 years preparation.
This period shows that international integration is a best way to ensure the independent, sovereignty
and enhance economic development.
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• 2007 – now: Vietnam became a responsible and active member of international community
- In the ASEAN: Vietnam held chairmanship of ASEAN 2020
- In the UN: Vietnam became non-permanent member of United Nations Security Council (2008 -
2009 and 2020 – 2021); was a member of the UNHRC 2014 - 2016

5 II. The progress of taking part in the international treaties

• Before being a member of UN, Vietnam had no capacity to participate the important international
treaties.
• After 1977, Vietnam proactively participated many international treaties
- On human rights:
UNCRC (1980), ICCPR (1982), ICESCR (1982), CEDAW (1982), ICERD (1982), UNCAT (2015)
- On national sovereignty:
Vienna Convention on Diplomatic Relations (1980), UNCLOS (1990)

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- FTAs:
+ Vietnam has bilateral FTAs with some countries: Korea, Singapore, Chile, Israel and some
organization: EVFTA, VN-EAEU FTA, VN-EFTA FTA
+ Multilateral FTAs: ASEAN with China, Korea, Japan, India, Australia, Hongkong; CPTPP.
New generation of FTAs: supporting not only economic development but also to reform the regime.

7 III. Benefits and challenges of international integration

• Benefits:
- Being respected by the international community
- Chance to take part in a broad market

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- Chance to take part in a broad market

- Harmonizing the domestic legal system with international standards
• Challenges:
- Protectivism, Absolute Nationalism, Terrorism
- Non traditional security threats