Đề thi giữa kỳ - Vietnam's Legal System Overview môn Pháp luật đại cương | Trường Quốc tế - Đại học Quốc gia Hà Nội

1.How was the Legal system of Vietnam formed?
The Legal system is difference from country to country because of differences in history, and
socio - political and economic conditions. Vietnam’s ideologies can be divided into 4 mains
periods: Feudal legal system, French colonialist, Soviet Union’s legal tradition, Legal system in
the period of integration and globalization.
Under the leadership of the Communist Party, Vietnam is a socialist country. The legal
system of the Socialist Republic of Vietnam has significantly changed since the introduction
of Doi moi (renovation) in 1986. The current legal system of Vietnam is based on the Soviet
Union model. It is Civil law with modifications from Marxist-Leninist ideology. Therefore, the
1980 constitution was based on the Constitution of the Soviet Union. The 1980 Constitution
explicitly stated: “The Socialist Republic of Vietnam is a State of proletariat dictatorship”.
For the first time, the Constitution contained a provision on the role of the Communist Party of
Vietnam as the only political party. The legal system and the role of the law were used flexibly to
maintain the autonomous role of the Communist party. The legal system of Vietnam was
formed gradually under the leadership of the Communist party and the democratic centralism
principle according to the principle of socialist legality and democratic centralism. These
principles shape the nature legislation in VN. Although National Assembly is vested in legislative
power but executive organs have played an important role in legislation. Under the democratic
central principle, there is no separation of state power. There are three state branches: Legislation,
Executive, Jurisdiction have involved in legislation. Hence, the concept of law refers to various
types of legislation issued by competent agencies in written forms. In addition, Communist Party
has played a leading role in all aspects. The legal system is under the influence of the partyÕs
policies. Therefore, the law cannot conflict with PartyÕs policies. It becomes the condition
of legal validity in VN which is also different from other countries. Law in Vietnam refers to
legal normative documents issued by competent agencies as prescribed by laws. The legal system
includes many types of legal normative documents; therefore, it also forms a hierarchical legal validity.
2. How did socio-economic conditions affect the legal system?
Socio-economic conditions affected significantly the legal system. The legal system must
respond to the changes in socio-economic conditions. The remarkable changes in
socioeconomics in Vietnam that have required significant changes in the legal system are as
follows: Introducing Doimoi (renovation) policy in 1986: shifting from a centrally planned
economy to a market economy with a socialist orientation. The legal system was considered an
instrument for defining the role of the state and the market. Related to the Doimoi
policy, some significant changes in the legal system were summarized such as: 1.
1986 Land reform: Directly after introducing Doi Moi, the government decided
to give Vietnamese farmers more rights on land and for the first time the right to decide what to
produce on their own. As a result, agricultural output increased so much that within 2
years, Vietnam was transformed from a rice-importing to an exporting nation. 2.
1990-1991 Recognition of private ownership: For the first time, Vietnam
officially recognized the lawful existence of non-state economic sectors by issuing the Company
Law and the Private Enterprise Law. 3.
1995-1996 Liberalization of foreign trade: The re- establishment of formal
diplomatic relations with the USA constituted the starting point for an opening of international
economic relations Ð allowing private enterprises to engage in import/export activities. 4.
1999 Right of business freedom: Clarification of entrepreneurs’ basic rights to
operate in any business arena not explicitly forbidden by law.
The 1992 Constitution replace the 1980 Constitution with the main focus on the open market
under a socialist-oriented economy. The rule of law and clear distribution of state functions
(legislative, executive, and judicial functions) were mentioned as the target of legal reform in Vietnam.
About globalzation Vietnam became a member of WTO in 2007. In 1995, Vietnam aimed at
bringing the national legal system up to the level required by WTO members. Therefore, all legal
sectors have been reformed based on the international trade rules. For example, Vietnam
established the Administrative Court in 1996 and adopted Law on Administrative Complain and
Denunciation in 1998 to meet a requirement of WTO.
Achieving success as a Middle-Income Country: Master reforming program. In the progress of
building rule of law state and democratic society, especially since became a middle-income
country. Vietnam introduced a Master Plan on Administrative Reform period 2011-2013 to build
up an effective, efficient, transparent, and strong administrative system from the central to the
local level. Hence, the 1992 Constitution was amended in 2013 as a significant effort in reforming the process.
Currently, Vietnam has carried out reviewing all legal documents and has planned to promulgate
new Laws to ensure that legal documents comply with the 2013 Constitution.
3. How did International cooperation influence legal reform?
In the period of integration and globalization, Vietnam has received support from advanced
countries such as the US, Japan, Denmark, Canada, Germany (etc.) in implementing legal reforms.
For example, JICA (Japan) has assisted Vietnam in implementing legal reform by supporting the
drafting of legal documents in the civil and commercial as well as human resource development;
the USAID STAR project helped Vietnam to rewrite or adopt 93 legal documents related to trade
agreement. More recently, donors and entrepreneurs have advocated reforms to support the
marketization of the economy, producing a diverse set of civil and common law influences from
various sources including Sweden, the United States of America, Canada, Japan, and Australia
to name a few.Ó Consequently, the legal system in Vietnam currently has been impacted
significantly by the donorÕs country. The legal system is gradually changed and has some new
features that are different from the period of a centrally- planned economy. The reforms of Vietnam
in the new century relate more to rule of law state than socialist legality. The problem is
how Vietnam uses legal models and reforming solutions of different legal traditional (civil
law, common law, socialist lawÉ) to create a coherent legal system.
4. Prensent the various theories of the origin of the state.
There are 6 theories on the origin of the state as having been formed and developed as a result of
the political thought ans philosophy in the ancient time until the enlightenment period in Europe. 1.Natural theory
The social urge of the human being to be within a group of people in the coomunity as in sociology
describes that Òman is a social being.Ó The social group provides the political development
to stay and work together with common standard law in the community, later on, transform into a state. 2. Patriarcal theory
The origin of the state evolves from the enlargement of the family under the authority of the parents
or the elders. Later on, it will develop into a tribe, kingdom then states. 3. Force theory
The creation of the state through the constant war and invasion of the great warriors in an ancient
time dominated the weak that later on formed a state. 4. Divine right theory
The rulers of the past advocated the political dominance of authority and power through their
ordained mandate that they represented the state based on the divine right (as God created the
state). It was in this nature that the divine rights of kings has absolute power and influence over the subjects. 5. Social contract theory
This is the right of the people to have the deliberate and voluntary contract on the right to
overthrow the kings and rulers against corrupt governance to organize a new government with
common interest for all the people. 6. Marxist theory
Max and Engels have divided the development of society into 4 models: -Old communist social system
In the old communist society, there was no state because there was no existence of private property.
-Slave society -Feudal society -Industrial society 5. Definitions of State.
Some see a "state" as an ancient institution, going back to Rome, Greece, and before, and
theorized by Plato, Aristotle, and other classical philosophers. Others insist on the unique
features of the modern state, with its extensive rule of law, citizenship rights, and broad
economic and social responsibilities.
A state is more than a government; that is clear. Governments change, but states endure. A state is
the means of rule over a defined or "sovereign" territory. It is comprised of an executive,
a bureaucracy, courts and other institutions. But, above all, a state levies taxes and operates a
military and police force. States distribute and re-distribute resources and wealth, so lobbyists,
politicians and revolutionaries seek in their own way to influence or even to get hold of the levers
of state power. States exist in a variety of sizes, ranging from enormous China to tiny Andorra.
Some claim a long lineage, while others are of modern construction. In all but the short term,
states are in flux. They expand and contract as military and political fortunes change. Some,
like Poland, even disappear and re-appear later. While globalization and regional integration
(like the European Union) challenge the state's powers, the state is still the dominant arena
of domestic politics as well as the primary actor in international relations.
About Marxist definition of State:
Marx (1818- 1883) and his friend Engels (1820-1895) made different comments and
statements which constitute the fabric of state theory. In the Communist Manifesto (it was written
by both Marx and Engels) we find a simple definition of the state. They have said that the state is
the ÒPolitical power, properly so- called, is merely the organized power of one class for oppressing
anotherÓ. In the same book, we find them saying, ÒThe executive of the modern state is a
committee for managing the common affairs of the whole bourgeoisieÓ. Hal Draper in Karl
MarxÕs Theory of Revolution defines it in the following words: ÒThe state is the institution or
complex of institutions which bases itself on the availability of forcible coercion by special
agencies of society to maintain the dominance of a ruling class, preserve the existing property
relations from basic change and keep all other classes in subjection.Ó DraperÕs definition of the
Marxist state is not different from the definitions given by Marx and Engels in the Communist
Manifesto. The state is fundamentally an instrument of class domination.
6. What are the types of government?
There are 9 types of government:
1. Totalitarian : A a government that seeks to subordinate the individual to the state by
controlling not only all political and economic matters but also the attitudes, values,
and beliefs of its population.
2. Oligarchy: A government in which control is exercised by a small group of individuals
whose authority generally is based on wealth or power.
3. Monarchy: A government in which the supreme power is lodged in the hands of a monarch
who reigns over a state or territory, usually for life and by hereditary right; the monarch may
be either a sole absolute ruler or a sovereign - such as a king, queen or prince - with
constitutionally limited authority.
3.1. Absolute monarchy: A form of government where the monarch rules unhindered,
i.e., without any laws, constitution, or legally organized opposition. 3.2.
Constitutional monarchy A system of government in which a monarch is guided
by a constitution whereby his/her rights, duties, and responsibilities are spelled out in written law or by custom. 3.3.
Parliamentary monarchy A state headed by a monarch who is not actively
involved in policy formation or implementation (i.e., the exercise of sovereign
powers by a monarch in a ceremonial capacity); true governmental leadership is
carried out by a cabinet and its head - a prime minister, premier or chancellor - who are
drawn from a legislature (parliament).
4. Democracy : A government in which power and civic responsibility are exercised
by all adult citizens, directly, or through their freely elected representatives. Democracies
fall into two basic categories, direct and representative. In a direct democracy, citizens,
without the intermediary of elected or appointed officials, can participate in making
public decisions. Such a system is most practical with relatively small numbers of people
Ð in a community organization, tribal council, or the local unit of a labor union, for
example Ð where members can meet in a single room to discuss issues and arrive at
decisions by consensus or majority vote.
In Switzerland, many important political decisions on issues, including public health,
energy, and employment, are subject to a vote by the country's citizens. And some might argue
that the Internet is creating new forms of direct democracy, as it empowers political groups to
raise money for their causes by appealing directly to like-minded citizens.
However, today, as in the past, the most common form of democracy, whether for a town of
50,000 or a nation of 50 million, is a representative democracy, in which citizens elect
officials to make political decisions, formulate laws, and administer programs for the public good.
5. Socialism: A government in which the means of planning, producing, and
distributing goods is controlled by a central government that theoretically seeks a
more just and equitable distribution of property and labor.
6. Presidential government: The main distinguishing characteristic of the presidential
form of government is that the head of government is also the head of state, leading
an executive branch but not a legislative one. There are several countries around the
world that are presidential republics with a full presidential system. The United States is
one, as are Mexico and Brazil. 7. Parliamentary democracy:
A political system in which the legislature (parliament) selects the government
- a prime minister, premier, or chancellor along with the cabinet ministers
- according to party strength expressed in elections (United Kingdom, Germany, Israel, Canada, Australia).
8. Islamic republic: A particular form of government adopted by some Muslim
states; although such a state is, in theory, a theocracy, it remains a republic, but its laws
are required to be compatible with the laws of Islam.
9. Federal democracy: A federal democracy is a political system in which
citizens have equal participation in government and the government is divided
into two sovereign levels, such as a national government and a state
government. Because of most federal states' extensive geography and population,
federal democracies are representative. Various countries in western society have
adopted versions of federal democracy.
7. What are the sources of law?
There are numerous sources of law, including Vietnamese Communist PartyÕs policy: 1. Legal Normative Documents 2. International Treaties 3. Customs
In many countries around the world, customary law is regarded as a source of law. Vietnam has
applied written law. Ensure the supremacy of legislation and its unity, and unanimity of its
application. Recognizing customary law is particularly significant. Vietnam would solve a
number of the shortcoming of its current legal system. In 1986, Vietnam decided to reform the
economy under a new policy: The Doi moi (Renovation) policy. Vietnam would need to build a
new legal system. Since the 1990s, customary law has attracted more attention from the
Vietnamese government. The reasons for this are related to changes in economic and social
conditions in Vietnam. VietnamÕs economy has moved from a centrally planned economy to a
multi-sectors economy. The economic reforms have led to social and legal changes. Social
relations (such as inheritance, marriage and family, civil transactions, and land use) have also changed.
The state law could not cover all the new social relations that are occurring. To some extent, in
social relations where the state law does not reach, customary law may dominate.
Customary rules are spontaneously applied in the social fields of Indigenous peoples, such as
those involving land and forest management; ownership rights; property disputes; issues of marriage...
In practical terms, customary law is the first choice for dispute settlements in minority
ethnic communities. Customary law also involves a social agreement to preserve and protect the
communityÕs society and culture.
However, customary law remains a controversial issue. Customary law has shortcomings
because it is local and unwritten. In many civil disputes, customary law is applied instead of
state law. Similarly, customary law also deeply influences marriage and family
relationships. With customary law, individual rights are not given sufficient consideration in
communities. The state tends to harmonize customary law with state law. The approach is to
align customary law with state law while preserving and upholding traditional values and
abolishing unsound customs (such as polygamy, marriage between related persons).
Customary law can then be systematically evaluated and compared with state law, while
also ensuring the necessary degree of social security and national unity. Facing social
reality, the Vietnamese government has taken initial steps toward recognizing customaryage
and family. Article 6 of the Law on Marriage and Family (2000)provides: ÒIn the
marriage and family relationship, customary laws which express national traditions and
comply with the principles of the law on Marriage should be appliedÓ. The most prominent
evidence for the recognition of customary law can be seen in the Civil Code 2015 and
Commercial Law 2005, customary law and practices shall be applied in commercial
activities pre- established between parties and commercial activities. The Civil Code also
contains several regulations relating to customary law recognition. Regarding civil
transactions, Civil Code 2015 provides:
a. A civil transaction shall be effective when it satisfies all of the following conditions: -
¥Participants in the transaction have legal personality and/or legal capacity in
conformity with such transaction
¥Participants in the transaction act entirely voluntarily
¥The purpose and contents of the transaction are not contrary to the law and/or social ethics. b.
The forms of civil transactions shall be the conditions for its effectiveness in cases
whereit is so provided for by law.
It can be seen that Vietnam has taken initial steps to recognize customary law as a source of law
in its legal system. Although state law has advantages, it also has certain drawbacks. More
sources of law are needed to support and improve the legal system. 4. Precedents:
The recognition of the customary law is important for improving the nationÕs legal system.
Vietnam will meet the requirements for addressing new social relations. The potential
application of precedents would be remarkable. A diversity of sources of law could benefit Vietnam’s development.
8. What are the functions of law?
The law serves many purposes and functions in society. Four principal purposes and functions are:
1. Establishing standards : The law is a guidepost for minimally acceptable behavior in
society. Some activities, for instance, are crimes because society has determined that it
will not tolerate certain behaviors that injure or damage persons or their
property. For example, under typical state law, it is a crime to cause physical injury to
another person without justificationÑdoing so generally constitutes the crime of assault.
2. Maintaining order : This is an offshoot of establishing standards. Some semblance of order
is necessary for civil society and is therefore reflected in the law. The lawÑwhen
enforcedÑ provides order consistent with societyÕs guidelines.
3. Resolving disputes : Disputes are unavoidable in a society made of persons with different
needs, wants, values, and views. The law provides a formal means for resolving
disputesÑthe court system. In the Federal States, there is a federal court system and each
state has its separate court system. There are also various less formal means for
resolving disputesÑcollectively called alternative dispute resolution (ADR).
4. Protecting liberties and rights : The constitutions and statutes of the United States and its
constituent states provide for various liberties and rights. The purpose and function of the
law are to protect these various liberties and rights from violations or unreasonable
intrusions by persons, organizations, or government. For example, in the United States,
subject to certain exceptions, the First Amendment to the Constitution prohibits the
government from making a law that prohibits the freedom of speech. Someone who
believes that his free speech rights have been prohibited by the government may pursue a
remedy by bringing a case to the courts.
The four functions of law provide a basis for how society would optimally function.
-Defending people from evil declares that the law will protect humans from other people who want to harm mankind.
-Promoting the common good essentially provides support to those who organize
themselves into a group to fight for specific rights.
-In the case of resolving disputes, it provides support to people who cannot agree
with another person, such as during a divorce.
-Encouraging people to do the right thing came about during Aristotle's time, but
it remains true today. Having a law system helps people feel more comfortable
about reporting injustices and crimes that they may witness.
9. Differnces between Common Law and Civil Law Tradition? Common law Civil law Origins Historians believe that the Dates to the early English Romans developed civil monarchy when courts law around 600 C.E. when began collecting and
the emperor Justinian began publishing legal decisions.
compiling legal codes. Later, those published Current civil law codes decisions were used as the developed around that
basis to decide similar cases. Justinian tradition Modern law systems
Common-law systems make In civil-law systems, on the
refer extensively to statutes, other hand, codes and
but judicial cases are statutes are designed to considered the
most cover all eventualities and
important source of law, judges have a more limited
allowing judges to role in applying the law to the
proactively contribute to case at hand. Past judgments
rules. For example, the are no more than loose
elements needed to prove guides. When it comes to
the crime of murder are court cases, judges in civil- law systems are more like i
contained in case law rather n v e s t i g a t o r s , w h i l e
than defined by statute. For t h e i r
consistency, courts abide by equivalents in the
precedents set by higher commonlaw systems are
courts examining the same rather arbiters between issue. parties presenting arguments. Countries The United States, Canada, The state of Louisiana in England, India, and the United States uses Australia are generally
juridical civil law because it considered common law was once a colony of France. countries. Because they Civil law countries include were all once subjects or all of South America colonies of Great Britain, (except Guyana), almost all they have often retained the of Europe (including tradition of common law. Germany, France, and Spain), China, and Japan
South Africa, Namibia, Botswana, and Zimbabwe are bijuridical, i.e., they follow a
combination of both legal systems Legal representation
The judge often acts as a The judge is usually the
referee, as two lawyers argue main investigator and the
their side of the case. lawyer's role is to advise a
Generally, the judge, and client on legal proceedings,
sometimes a jury, listen to write legal pleadings, and both sides to come to a help provide favorable conclusion about the case. evidence to the investigative Judge. Constitutions
Though not a rule, common In civil law, the
law countries may not always constitution is generally
follow a constitution or a code based on a code of laws, or of laws. codes applying to specific areas, like tax law, corporate law, or administrative law. Contracts Civil law countries on the
Freedom of contracts is very other hand have a more
e x t e n s i v e i n c o m m o sophisticated m o d e l f o r c
n l a w countries, i.e., very o n t r a c t s w i t h provisions
little or no provisions are based on the law. implied in contracts by law.
Type of argument and role of A d v e r s a r i a l . L a w y e Inquisitorial. Judges, not lawyers
r s a s k questions of lawyers, ask questions and witnesses,
demand demand eviden c e . L a w
production of evidence, and yers p r e s e nt arguments
present cases based on the based on the evidence the evidence they have gathered. court finds. Precedent
The decisions of judges are In civil law countries, only
always b i n d i n g i n c o m the j u d i c i a l d e c i s i o n
m o n l a w countries. In the s o f administrative and
United States, for example, constitutional courts are
cases may be heard by a binding outside the original
network of federal or state case. In essence, the concept
courts, with the federal of precedent, i.e. past cases
Supreme Court h o l d i n g u can determine the outcome
l t i m a t e p o w e r . of future ones, is not used. Generally, the ruling of the last court that a case visit remains the final, binding verdict. That case may later be used as a precedent to argue similar cases in the future. Evolution
Both systems have similar sources of law- both have statutes
and both have case law, they approach regulation and resolve
issues in different ways, from different perspectives.