CHAPTER 1:
STATE AND LAW
TRẦN THANH TÂM
(LLM, PhD Candidate)
OUTLINE
1. Definition of Law
2. Sources of Law
3. Categories of Laws
1. DEFINITION
• Law may be defined as a body of rules, created
by the state, binding within its jurisdiction and
enforced with the authority of the state through
the use of sanctions
2. Sources of law in Vietnam
Legislation
Delegated
legislation
Constitution
Acts, Codes
Ordinances
Decrees
Circulars
Decisions
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3. Categories of Law
Law is a very large field, and it is common to
divide it into categories
• Criminal law and civil law
• Private law and public law
• Substantive law and procedural law
• Common law and civil law
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CRIMINAL VS CIVIL LAW
CRIMINAL PROCEEDINGS
CIVIL PROCEEDINGS
Purpose
To punish the perpetrator of the crime;
to deter others from committing the
same crime
To seek a remedy for a
private wrong
Parties
Public prosecutor prosecutes the
accused/defendant
Plaintiff sues the defendant
Discretion to
The discretion whether or not to initiate
initiate an action an action lies with the state
The discretion whether or
not to initiate an action lies
with the plaintiff
Burden of proof
Public prosecutor must prove the case
beyond reasonable doubt
Plaintiff must prove case on
the balance of probabilities
Decision of the
Court
Guilty or not Guilty
Liable or not liable
Sanctions
Jail sentence, fine, other
Damages, specific
performance, injunctions,
other
Test your understanding:
Criminal/Civil Law Exercise
Name of a case:
Who filed the case:
What was the guilt/offence: Facts of this case:
Where was it filed/which court?
Whose responsibility was it to prove the guilt:
What was the outcome of this case (and the type of sentence)
Your comments (if any)
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Private Law and Public Law
• Private Law and Public Law are concerned
with relationships
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Private Law
• Private Law deals with the relationships
between ordinary people in everyday
transactions
• That includes you and me, as well as
businesses and companies
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Private Law
Individual
Individual
Law regulates relationship
between them
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Public Law
• Public Law deals with the relationships between
government organisations and ordinary citizens
– also between different government organisations
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Public Law
State
State Bodies
Individual
Law regulates relationship
between them
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Substantive vs procedural law
• Substantive
obligations
Law:
Defines
rights
and
• Procedural Law: Establishes processes for
resolving disputes
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Common Law and Civil Law
• Common Law and Civil Law are terms used
to describe legal systems
• A legal system is the way the law is
structured and operated in a country
– England and Vietnam have different legal
systems
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Common Law
• Common Law is used to describe legal
systems based on the English legal system
• These are usually countries which were
once part of the British Empire
– eg: America, Australia, New Zealand
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Common Law
• One of the unique features of the common
law is that it is judge-made law.
• The judgments of courts operate not only
to resolve the particular dispute of the
specific parties before the court, but also
stand as precedents for the resolution of
future disputes of a similar nature
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Common Law
• Case law is merely the rules of law
announced in court decisions. Case law
may consist of interpretations of statutes,
regulations and provisions in the
constitution.
• A precedent is a decision that furnishes an
example or authority for deciding
subsequent cases involving identical or
similar legal principles or facts.
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Common Law
• The doctrine of Stare decisis - a Latin phrase
meaning “to stand on decided cases.”
• Stare decisis has two aspects:
1. A court should not overturn its own
precedents unless there is a compelling
reason to do so.
2. Decisions made by a higher court are
binding on lower courts.
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DISCUSSION
• PROS AND CONS OF USING PRECEDENTS
• THE ROLE OF PRECEDENTS IN VIETNAM
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CASE LAW IN VIETNAM
‘Precedents are arguments and rulings written on
effective judgments or decisions (hereinafter
referred to as judgment) of the courts that are
selected by the Judicial Council of the Supreme
People’s Court and published by the Chief Justice
of the Supreme People’s Court in order for other
courts to study and adopt them when deciding
later cases.’
(Art 1- Resolution No. 04/2019/NQ-HDTP on
process for selecting, publishing and adopting
precedents)
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Civil Law
• Civil Law is used to describe legal systems which are based on old
Roman Law (from the Roman Empire in what is now Italy)
• It has been built on and consolidated, particularly in France, from the
18th century.
• Napoleon Bonaparte came to power after the French Revolution, which
commenced in 1789; as well as expanding the French Empire, he drew
up a detailed civil code to apply to the whole of France. By 1810, the
Civil Code, the Code of Civil Procedure, the Commercial Code, the Code
of Criminal Procedure and the Penal Code, together known as the Code
Napoléon, had become law.
• The use of the Napoleonic Code spread throughout much of Europe
and, although most nations have since drafted their own codes, and the
French Code itself has been revised, it has had a strong influence on the
current legal systems of civil law countries.
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Civil Law
• The essential features of the system are:
1) Civil Laws are a codified set of legal rules.
2) The codified Law bears a binding for all. There is
little scope for judge-made law in civil courts. Yet,
looking into the practical aspect, the judges follow
the
precedents.
3) Writings of the Legal Scholars do have a
substantial influence on the courts.
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Common Law v. Civil Law
Below: A world map showing countries today that have a civil law system (light blue), countries that
have a common law system (green), and countries that have both (orange).
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LEGAL NORM
• a mandatory rule of social behaviour established
by the state
• Elements of a legal norm:
– Hypothesis
– Disposition
– Sanction
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LEGAL NORM
• a mandatory rule of social behavior established
by the state
• Elements of a legal norm:
– Hypothesis: describes the circumstances in which the
disposition or sanction of the norm come into action
– Disposition: indicates the rights and duties of the
participants in relations arising under the
circumstances envisioned in the hypothesis
– Sanction: defines the consequences for persons who
violate the prescriptions of a particular norm
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Origin of State
Primitive community/ classless society
Class society
State
3 times of specializations
What are reasons of the birth of states?
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What is a state?
• Special political organization
• Protect the rights and interests of the
ruling class
• Maintain the stability of the society
• Have enforcement power
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Separation of powers
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Forms of states
State Apparatus