Introduction Vietnamese business law

Minh Nguyen 7/20/2012
yiuyuiu 1
Ha, Thi Thanh Binh (LLD)
VIETNAM BUSINESS LAW
Topic 1 Introduction to Vietnamese
Legal system and Business Law
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Introduction to Vietnamese Legal
system
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• Theory of law
• Categories of legal system
• The Vietnamese legal system
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Theory of Law
• Definition and purposes of law
• Legal systems
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Definition of the law
• Law can be defined as an organized system of
principles and rules designed to control and
influence the conducts of individuals and
groups
• The aim of most legal systems, officially at
least, is to provide a means of resolving
conflicts in a fair and harmonious way.
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Ha, Thi Thanh Binh (LLD)
Purposes of law

• Remedying private disputes
• Controlling anti-social activities
• Regulating harmful activities
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Ha, Thi Thanh Binh (LLD)
Minh Nguyen 7/20/2012
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Legal system
• Collection of legal norms developed
systematically with foundation and branches
• Classifiable.
• Groups of norms are inter-connected
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Categorization of legal systems
• Civil law legal system
• Common law legal system
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Civil law legal system
• Sources of law
• Substantive law and procedural law
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Sources of law
• Statute law (written law)
• Implementing regulations
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Substantive law and procedural law

• Substantive law provides provisions governing rights
and obligations of individuals and organizations. E.g:
civil code, commercial law, criminal code…
• Procedural law concerns procedures used to protect
rights and interests of individuals and organizations.
E.g: Civil Procedures Code, Criminal Procedures
Code…
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Common law legal system
• Sources of law
• Doctrine of precedent
• Development of common law legal system
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Ha, Thi Thanh Binh (LLD)
Minh Nguyen 7/20/2012
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Sources of law
• Statute
• Common law
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Statute
• Written law made by legislature.
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Common law
• Common law is a collection of principles and
rules based on the decisions of judges in
higher courts

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Doctrine of precedent
• Decisions on the same or similar facts by a
higher court in the same hierarchy are binding
on a lower court.
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Ha, Thi Thanh Binh (LLD)
Development of common law legal
system
• The common law system has its origins in the
development of a centralized system of courts that
applied a body of common law in place of the
differing customary laws applied by the manorial
courts.
• The role of the judges was to resolve disputes on a
case by case basis but in so doing they develop rules
that collectively formed a body of case law.
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Ha, Thi Thanh Binh (LLD)
The Vietnamese Legal System
• History of Vietnamese law
• Public laws and private laws
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Ha, Thi Thanh Binh (LLD)
Minh Nguyen 7/20/2012
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History of Vietnamese law
• Pre-historical time
• The first Vietnamese written criminal code (Hinh thu) was issued in 1042

in three books
• The Hong Duc Code 1483
• Gia Long Code 1803
• Since 1945
• Since 1954
– In the North of Vietnam
– In the South of Vietnam
• Vietnamese law after 1975
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Ha, Thi Thanh Binh (LLD)
Public laws and private laws
• Public laws: laws of public interests
– Administrative law
– Criminal law
– Financial law
– Competition law
– …
• Private laws: laws of private interests
– Civil law
– Commercial law
– Corporate law
– …
• Critics of Lenin over the separation between public laws and private laws:
the danger of confusion between public and private interests
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Ha, Thi Thanh Binh (LLD)
Public laws and private laws (cont)
• Laws after Doi Moi: return to public-private dualism?
• Hybrid laws:
– Competition law

– Intellectual property law
– Commercial law
Question: to what extent the state should
intervene to freedom of contract and the free
market economy?
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Ha, Thi Thanh Binh (LLD)
Vietnamese legal systems (areas of
law)
• Constitutional law
• Administrative law
• Criminal law
• Civil law
• Family law
• Labour law
• Land law
• Financial and banking law
• Criminal procedures law
• Civil procedures law
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Introduction to Rules of law and
Applications
• Rules
• Applications
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Rules
• Conditions of a legal rules
– Legal documents from competent authorities

– Provide general regulations for un-identified number of people
– Established under procedures as prescribed by law
• Classification of sources of laws
– Constitution
– Laws
– Resolution issued by the National Assembly
– Ordinance and resolution issued by the Standing Committee of the National Assembly
– Sub-law regulations
• Resolutions and Decrees issued by the Government
• Decision, directives
• Circular
• Inter-ministerial Circular
(Note: Function of Official letter)
SOURCES OF LAW IN VIETNAM.doc
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Minh Nguyen 7/20/2012
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Applications
• What are legal applications?
• Steps in applications (IRAC)
– Issues
– Rules
– Applications
– Conclusions
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Constitutional Law
• Doctrine of separation of powers vs. Doctrine
of parliamentary supremacy

• Vietnam Constitution Law
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Doctrine of separation of powers
• Typical country: USA
• Principles:
– There are three functions of government:
legislative (law making), executive (administration)
and judicial (adjudication); and
– Each of these should be exercised by one organ of
government with no overlap so that each can then
act as a check and balance on the others.
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Doctrine of parliamentary
supremacy
• Typical country: Vietnam
• Principles:
– Parliament (National Assembly) has supremacy
power as parliamentary members represent the
people of the country.
– Even though powers of the government are
divided amongst three main branches, the
parliament remains supremacy.
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Vietnam Constitution Law
• Historical development
• General provisions
• Economic regime and civil rights

• The National Assembly
• People’s Council
• The Government
• The President
• The Court
• People’s Prosecution
• Other organizations
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Historical development
• Constitution 1946
• Constitution 1959
• Constitution 1980
• Constitution 1992 (as amended in 2001).
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Minh Nguyen 7/20/2012
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General provisions
• Name of the country, political regime: a state of the
people, by the people, for the people. All rights are
from the people.
• Role of the Communist Party of Vietnam
• Role of the working class in Vietnam
• Development of Constitutions of Vietnam
• District, Province and the State
• The Army and Police
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Economic regime and civil rights

• Economic regime: multi-component commodity market economy with
socialist orientation.
• Components:
– State economy
– Collective economy
– Private economy
– Foreign-invested economy
• Civil rights: rights attached to a citizen, protected by the state, exercised
by the citizen in the framework provided by law
– Political rights
– Socio-economical rights
– Citizen rights and human rights
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The National Assembly
• How to elect members of the National Assembly
– Electoral units
– Nomination and voting
• Supremacy of parliament
• The role of the Standing Committee of the National
Assembly
– Convene the meeting of the National Assembly;
– Implement the functions of the National Assembly
between its meetings;
– Adopt Ordinance and Resolutions
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Functions of the National Assembly
• Legislative function
– The process of law-making

– Approval of international treaty
– Interpretation of law
• Supervision function
– Supervision of the Government
– Supervision of sub-law adoption and implementation
• Other important functions
– Election of President, vice-presidents, PM
– Appointment of chief justice and general procurator
– Approve the cabinet members
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People’s Council
• Electoral modes
• Function:
– Representatives of people at local levels
– Adopting measures to implement the
Constitutions and law.
– Electing People’s Committee members
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The Government
• Central Government and Local Governments
• The Prime Minister and Deputy Prime Ministers
• Government’s Office
• Ministries
• People’s Committee at the Provinces
• Responsibilities of administrative public servants
– Collective responsibilities
– Individual responsibilities
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Ha, Thi Thanh Binh (LLD)
Minh Nguyen 7/20/2012
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The President
• Election of the President
• Functions of the President (mostly formality)
– Head of State
– Commander in Chief of the Army
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The Court
• Independence of justice and the role of justice in the Rule of
Law
– Rule of Law: everyone is accountable to law and the law applies
equally to everyone
– Independence of justice: guarantee of the above principle.
• Court structure
• Appointment of Judges
• Functions of a Judge
• Reappointment of a judge
• Independence of a judge
• Role of the Ministry of Justice
• Training procedure of a judge
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People’s Procuracy
• Structure
• Functions
– Supervise the administrative agencies in their
implementation of law

– Prosecuting criminal cases
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Other organizations
• National Fatherland Front
• Communist Youth League
• Professional Organizations
• Lobby of interest groups
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Summary
• ORGANIZATIONAL STRUCTURE OF THE STATE
OF VIET NAM.doc
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Business law
• Definition
• Main areas of law
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Ha, Thi Thanh Binh (LLD)
Minh Nguyen 7/20/2012
yiuyuiu 8
Definition
• Business law means the law regulating and
affecting the operation of a business.
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Ha, Thi Thanh Binh (LLD)
Main areas of law
• The law governing business structures and establishment of a
business (Law on Enterprises and Investment Law)

• The law governing business transactions (Law of contract, Law
of Tort, Competition Law, Intellectual Property Law…)
• The law governing dispute resolution (Law on Commercial
Arbitration, Law on Civil Procedures…)
• The law governing the termination of a business (Liquidation
and Insolvency Law)
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