Tài liệu legal lý thuyết

Organization

STATE
Political Power

Legislative power: issue laws (Lập pháp)
Executive power: enforce laws (Hành pháp) (bắt buộc phải
nghe)

Govern

Society within the certain territory

Judicial power: interpret & adjudicate disputes (Xét xử)

Forms
Monarchy (king/queen)

Limited/ Constitutional:
Absolute:
all state powers belong to king/queen (ex: Brunei, Oman...)
-

state powers belong to citizen
king/queen head of the state (ex: UK, Thailand, Japan..)

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

Republic (no king/queen)

People -> Parliament
Parliament -> State organs

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

People -> Parliament & President
President -> Cabinets

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

Pham Nhat Khanh Chi

-

People -> Parliament & President

-

Parliament -> Cabinets


1. When mention is made to a state, we are referring to _________
A. The organizations holding state power
B. The territory
C. The people with the territory
D. All of above
2. State power includes __________
A. Executive power
B. Legislative power

C. Judicial power
D. All of above

3. __________ is a form of state in which state power belongs to the people, and the head of state and the head
of government are separate.
A. Absolute monarchy
B. Limited monarchy
C. Parliamentary republic
D. Presidential republic



LAW

How to perform law
(ngành luật, Vn có 12 ngành luật, ex:
civil law, labor law,)

(Base on legal norms)

A system of rules/
guidelines +
issued/recognized by state
-

Law branches
Legal institutions

Fail to perform law
Liability capacity: age + cognition

Fault (intentional or unintentional)

Hypothesis: who, which, situation
Violates (breach of law)
-

Legal norms

Disposition: guidelines-how to act
rightly
Statutes (legal
Civil law system (VN,
documents)Sanction: consequences
France...)
Judicial precedent
(court judgements)

(Where we can
find the law
form)
Forms
Pham Nhat Khanh Chi Customs

Common law system
(US,UK...)

Always
exist
Sanctions

Civil law -> Civil sanction (fine, compensation...)
Administrative law -> Administrative sanction (fine,..)
Criminal law -> Criminal sanction (jails,..)
Labor law -> Labor discipline (fire,..)



“Everyone has the obligation to pay taxes in accordance with the law”
 Hypothesis: everyone
 Disposition: has the obligation to pay taxes in accordance with the law

“Anyone who unintentionally causes the death of another person shall be sentenced to between 6 months and five years of
imprisonment”
 Hypothesis: Anyone who unintentionally causes the death of another person
 Disposition: Không được nêu rõ và ở dạng quy định ngầm => Quy định trong trường hợp này là khơng được vơ tình gây ra cái
chết của người khác.
 Sanction: shall be sentenced to between 6 months and five years of imprisonment
 Disposition can imply in Hypothesis.
“Any person who manufactures or deals in counterfeit medicines for treatment or prevention of diseases shall face a penalty of 02 07 years' imprisonment.”
 Hypothesis: Any person who manufactures or deals in counterfeit medicines for treatment or prevention of diseases
 Disposition: Không được nêu rõ và ở dạng quy định ngầm => Quy định trong trường hợp này là khơng được bn bán thuốc giả
để chữa hay phịng bệnh
 Sanction: shall face a penalty of 02 - 07 years' imprisonment
“Before overtaking, a vehicle shall give a signal by means of light or horn; from 22.00 hrs to 5.00 hrs in urban centers & populous areas,
only light signals can be used for this purpose”
 Hypothesis: Before overtaking, a vehicle
 Disposition: shall give a signal by means of light or horn; from 22.00 hrs to 5.00 hrs in urban centers & populous areas, only light
signals can be used for this purpose

Pham Nhat Khanh Chi

CONSTITUTION
• Legislative: issue (NA)
State powers

Supreme law

-

Other laws have to details the rules
Other laws have to comply with the rules
All people have to comply
with the rules
Fundamental
rules

Citizen’s rights & obligations
State organs

• Judicial: interpret, adjudicate (court,
prosecutions)

State
CENTRAL LEVEL

Pham
Pham
Nhat
Nhat

Khanh
Khanh
ChiChi

• Executive: enforce (Gov)

LOCAL LEVEL


Citizens: >= 18 elect NA

Elect

Local people: >= 18 elect people’s council

CENTRAL LEVEL

Issue decision to appoint/
approve result

National
Assembly

Pay salary

Supervise & discuss
Standing Committees of NA
Report
National President

Prosecutions

Government

Court
LOCAL LEVEL

People’s
council

Elect at the same level

People’s committees

Government
National President (NA’s member)
Prosecutions
Provincial people council -> Provincial people’s committees
Court
 Executive body of NA
 Head of the state
Notes
 Head
of government:
Prime
Minister
StateState
judicial
(supervise
courts,

prosecute
criminals
)
District
people
council
-> District
people’s
committees
judicial
bodybody
(adjudicate
disputes)
People’s
committeesVN & Promulgate/Announce law, constitutions & ordinances
 Represent
 Highest
executive
body /first
state
administrative
bodycourts
2 levels
4 structures:
supreme,
high,
provincial
& district
of
adjudication:

instance
and appellate
People’s
council
 Grant
Highest
state power => citizens

pardon
Commune
people
council
->+ Commune
people’s
committees
National Assembly
Standing
Committees
of of
NAlocal people’s council
 (NA)
Executive
body
 Government
cabinets:
prime
minister
4 district
vice-prime
minister

+18
4 structures:
Protect
the
socialist
legislation,
the
regime,
human
supreme,
high,
provincial
&socialist
Highest state
power
 Duration:
follows
the body/organs
NA’s duration=> National Assembly

Local
state
power
body
body
Local administrative
organs
+ 4socialist
minister-levels
 ministers

Protect
legislation, the socialist regime, human and
andthe
citizenship
rights.
 Legislative

Communist
Party
doesn’t
have state power
 Permanent
bodybody of local
Representative
people
 draft
the
law

Highest
representative
body
of
people
citizenship rights.
 Interpret
laws,
constitutions
& ordinances
Supervise

compliance
with
the
constitution and law in its locality
Pham Nhat Khanh Chi


Distinguish
Amnesty

Pardon

(General amnesty)

(Special amnesty)

Amnesty & Pardon

Authority

National Assembly

National President

Subject

Group of crimes

Specific individuals

(all individuals in that group)
When granted

Before or after convicted by a final
judgement

After convicted by a final judgement

Legal outcome

Individuals will no longer be criminals and
have no criminal records

Criminal record of individuals will not be wiped

Nature

Absolution and forgetfulness of an offence

Release from prisons ahead of time people
serving imprisonment penalty

Pham Nhat Khanh Chi


4 head of ministerial level agencies
18 Ministers or


Ministry of National Defense



Ministry of Public Security (bộ công an)



Ministry of Foreign Affairs



Ministry of Justice



Ministry of Finance



Ministry of Transport



Ministry of Construction



Ministry of Education and Training



Ministry of Agriculture and Rural Development



Ministry of Industry and Trade



Ministry of Planning and Investment



Ministry of Health



Ministry of Science and Technology



Ministry of Natural Resources and Environment



Ministry of Information and Communications



Ministry of Home Affairs



Ministry of Labor, War Invalids and Social Affairs



Ministry of Culture, Sports and Tourism

Pham Nhat Khanh Chi



Government Inspectorate
(Thanh tra chính phủ)



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



Committee on Ethnic Minority Affairs
(Uỷ ban dân tộc)



Government Office
(Văn phịng chính phủ)

Organs have the right to issue legal documents
State bodies

Legal documents

National assembly

Constitution, Act, Resolution (hiến pháp, luật, nghị
quyết)

Standing committee of the national assembly

Ordinance, Resolution (pháp lệnh, nghị quyết)

National president

Order, Decision (lệnh, quyết định)

Government(cabinet)

Decree (nghị định)

Prime minister

Decision

Ministers and head of ministry – level bodies

Circular (thông tư)

(Bộ trưởng, Thủ trưởng cơ quan ngang bộ)
Justice council of the supreme people’s court

Resolution

(Hội đồng thẩm phán TANDTC)
Chief justice of the supreme people’s court &
Chief of the supreme people’s procuracy

Circular

(Chánh án TANDTC & Viện trưởng VKSNDTC)
State auditor general

Decision

(Tổng kiểm toán nhà nước)
People’s council

Resolution

People’s Committee

Decision


Pham Nhat Khanh Chi

ADMINISTRATIVE

• State organ – State organ ( Gov- People’s committees)

One site has state power
Only govern

Content: State administrative
management activities

LAW

• State organ – People (administrative organs - citizens)
• Inside state organ (prime minister- ministry of transport)

Administrative
Relations
Fail to perform administrative law (not a
crime)
Handle
Administrative

Organization

Nature: Command - obedient Individual
Liability capacity: Age + Cognition

Violation

All violation

Cognition: no mental issues
Age:

At fault

Be aware or have to be aware of your acts

>=12- <14: violation related to security, safety,
order
>=14 - <16: intentional fault
>=16: all violation

Bear Liability

Administrative violation
Not fall under exceptional cases

Administrative handling measures(*)
Sanctionsv
(for Vietnamese people
only)
Pham Nhat Khanh Chi

• Caution
• Emergency: violate law to prevent damages threatening
• Fine >= 16
• Unexpected event: sudden event caused violations
• Deprive license

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

Remedial
Administrative sanctions
• Legitimate
defense foreigners
Principle
• Expulsion:
measures

Principle/additional


ADMINISTRATIVE HANDLING MEASURES(*)
Forms

Education At Commune

Reformatory Center

Principle

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

Subject

≥ 12

≥12 - <18

Compulsory Education
Woman: ≥18-<=55,

Detoxification Centers
≥ 18

Man: >=18-<=60
Exception

N/A

How long will
punishment be applied
for

3 – 6 months

- Mental problems or unable to cognize
- Pregnant women
- Women or persons who are alone, nursing under 36-month child
6 – 24 months
6 - 24 months
12 – 24 months

Time Limit for Applying

03 – 12 months

06 – 12 months

Principles of applying administrative sanctions
One violation will have applied only one principal
sanction
One or several additional sanctions can be applied
for one violation
One violation is only sanctioned once

Pham Nhat Khanh Chi

1 year

03 months


Case:
On 12th August 2016, Huyen, 16 years old, drove her motorbike with the registered number 61B5 – 3981 from Thu Dau
to Di An, Binh Duong. In front of Ong Cu temple, Thanh who drove an electric bicycle collided with Huyen when he tried
to overtake her. The collapse caused Thanh spinal cord injuries (equal to 8% of health damages) and caused Huyen’s
motorbike to knock on another motorbike nearby within 1 meter which was droved by Khanh, 21 years old. On 12th
December 2016, the head of Di An police station issued a decision to apply administrative sanctions on Huyen since she
caused the accident with Khanh. As is not happy with the decision, Huyen sued the Di An police station to Di An
people’s court


Which of the following relations will be governed by administrative law?
a. Thanh drove into Huyen’s motorbike
b. The head of Di An police station issued a decision to apply administrative sanctions on Huyen

c. Di An people’s court settled Huyen’s lawsuit petition
d. All of the above
Which kind of fault does Huyen commit when she drove her motorbike into Khanh?
a. Direct intentional fault
b. Indirect intentional fault
c. Unintentional fault due to overconfidence
d. Unintentional fault due to negligence
Which of the following sanctions may Huyen face for her administrative violations?
a. Caution
b. Fine
c. Expulsion
d. None of the above


CRIMINAL LAW

1/ Liability capacity
+ Individual

Cognition capacity: no mental issue

Criminal violation = Crime - act described in penal code

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

+Organization (legal person):

Commercial - conduct business (not educational or medical org)
Some crimes that usually violates environment or economic

2/ Not fall under some cases
+ Emergency circumstances
+ Legitimate defense (phải là tự vệ ngang hàng)
+ Risk in research
+ Criminal capture (only fringe body-not death)
+ Obey commander’s order(military)

3/ At fault
+ Intention

Aware of act
Aware of consequences

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

+Unintention

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

Pham Nhat Khanh Chi


Crimes




Liability

Unexpected events
Other cases in Art.29

Not fall under exceptional cases

 Fine
 Suspension of operation (temporary)
 Shutdown(permanent)

Punishment

Organization
Individual

 Caution (less serious)
 Fine (less serious) >= 16
>=14-<16: 1⁄2 term - max 12 years
 Fixed term imprisonment

>=16-<18: 3⁄4 term - max 18 years
>=18: full penalty – max 20 years ( for 1 crime)
& max 30 years (for many crimes)

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

Pham Nhat Khanh Chi


Type of crime

Time of
imprisonment
7 years

3 years

15 years

Less
serious
Serious

Very serious
Time limit of prosecute:
Less serious: 5 years
Serious: 10 years
Very serious: 15 years
Extremely/ particularly serious, life imprisonment, death penalties: 20 years
Note:

Extremely serious


- The time limit is not applicable for crimes listed at Article 28, the penal code 2015
1. What of the following may be a crime?

A. A 14-year-old boy had sexual intercourse with a 12-year-old girl
B. As requested, a 45-year-old woman bought some sleeping pills for her close friend to committee a suicide
C. A 25-year-old man who has Down syndrome killed his wife
D. None of the above
Pham2.
Nhat
Khanh
Which
of Chi
the

following may bear criminal liability for the crime?
A. A 35-year-old woman who swapped her two-year-old daughter with her friend’s two-year-old son.
B. An organization which spread false information to make their competitor’s business go down.
C. A 13-year-old boy transported 5 million dong of fake money
D. None of the above
3. Who of the following will not be subject to a death penalty?
A. A 34-year-old woman nursing a 4-year-old toddler
B. A 79-year-old man
C. A full 18-year-old boy
D. All of the above
Case study:
On 29/10/2016, Quan 17 y.o, asked to borrow from his brother, Thang, 14 y.o, a motorbike after a party. Thang agreed to
let Quan use his motorbike but he requested Quan to return it early. Quan was not happy with Thang’s request. They had
arguments. In the heat of passion, Quan picked up a knife from his house to threaten Thang. After being dissuaded by
their relatives, Quan and Thang went back to their homes. When arriving at home, Thang heard his girlfriend screaming as
Quan threatened to kill her. Thang then picked up a stick on the floor and hit Quan’s head until he passed out and
walked away. When Thang came back to check on Quan, he found Quan dead.
Which fault does Thang commit in this case?
Answer: Indirect Intentional

1. Which kind of fault does Chinh commit in this
case?
a. Direct intentional fault
b. Indirect intentional fault
c. Unintentional fault due to overconfidence
d. Unintentional fault due to
negligence
2. Which crime does Chinh commit in this case?
a. The crime regulated in article 123 of the penal code 2015
b. The crime regulated in article 125 of the penal code 2015
c. The crime regulated in article 126 of the penal code 2015
d. The crime regulated in article 128 of the penal code 2015
3. Which type of crime does Chinh commit in this
case?
a. A less serious crime
b. A serious crime
c. A very serious crime
d. An extremely serious crime
4. What is the maximum penalty which Chinh may face if he is 76 years old?
a. Life imprisonment
b. 15 years of imprisonment
c. 3 years of imprisonment
d. 2 years of imprisonment
5. What is the time limit to prosecute Chinh’s liability?
a. 5 years
b. 10 years

c. 15 years
d. 20 years

Article 123. Murder
1. A murderer in any of the cases below shall face a penalty of 12 - 20 years' imprisonment, life imprisonment or death:
a) Murder of 02 or more people;
b) Murder of a person aged under 16;
c) Murder of a woman with the full knowledge of her pregnancy;
d) Murder of a law enforcement officer in performance of his/her official duties or murder of a person because of his/her
official duties;
dd) Murder of the murderer's grandparent, parent, caregiver or teacher;
e) Murder committed right before or after committing a very serious crime or extremely serious crime;
g) Murder for the commission or concealment of another crime;
g) Murder for taking the victim's body parts;
i) Brutal murder;
k) Murder by taking advantage of the murderer's profession;
l) Murder using a method capable of killing many people;
m) Contract killing;
n) Murder of a gangster-like nature;
o) Organized murder;
p) Dangerous recidivism;
q) Murder from despicable motives.


2. Murder in circumstances other than those specified in Clause 1 of this Article carries a penalty of 07 - 15 years'
imprisonment.
3. Any person who makes preparation for the commission of this offence shall face a penalty of 01 - 05 years' imprisonment.
4. The offender might be forbidden from practicing his/her profession or doing certain jobs for 01 - 05 years, face mandatory
supervision or prohibition from residence for 01 - 05 years.
Article 125. Manslaughter under provocation

1. Any person who commits manslaughter under provocation because of the victim's serious illegal actions against the
perpetrator or the perpetrator’s family shall face a penalty of 06 - 36 months' imprisonment.
2. The manslaughter of 02 or more people under provocation carries a penalty of 03 - 07 years' imprisonment.
Article 126. Involuntary manslaughter because of the use of unjustified force in self-defense or while capturing a
criminal
1. An involuntary manslaughter because of the use of unjustified force in self-defense or while capturing a criminal carries a
penalty of up to 02 years' community sentence or 03 - 24 months' imprisonment.
2. The involuntary manslaughter of 02 or more people in this case carries a penalty of 02 - 05 years' imprisonment.
Article 128. Involuntary manslaughter
1. A person who commits an involuntary manslaughter shall face a penalty of up to 03 years' community sentence or 01 - 5
years' imprisonment.
2. This offence carries a penalty of 03 - 10 years' imprisonment if it results in the death of 02 or more people.