Introduction to Law - Past Paper PDF

lOMoARcPSD|38042002 PLĐC - Lí thuyết cho người mất gốc lười học Introduction to Law (Trường Đại học Ngoại thương) Scan to open on Studocu Studocu is not sponsored or endorsed by any college or university Downloaded by Gia Linh (linhtrinhl...

lOMoARcPSD|38042002 PLĐC - Lí thuyết cho người mất gốc lười học Introduction to Law (Trường Đại học Ngoại thương) Scan to open on Studocu Studocu is not sponsored or endorsed by any college or university Downloaded by Gia Linh ([email protected])  lOMoARcPSD|38042002 GV: Cô Yến [email protected] ÔN TẬP THÊM Ở ĐÂY: https://quirky-cayenne-aec.notion.site/State-and-Law- 1f1a740f756b461ba14db9266f139ce3 Course outline: Topic 1: State and law Topic 2: Civil Law in Vietnam Topic 3: International Law TOPIC 1: STATE AND LAW I. Origin of States and Law Non-Maxist theories: Theory of Violence Theology Social Contract Theory: born with the agreement of citizen Maxist theory: Primitive community/classless society -> class society -> state Economic causes: 3 times of labors Specializations Private ownership occurs State definition: Special political organization Protect the rights and interests of the ruling classes Maintain the stability of the society Have enforcement power Nature of state: Class-conscious face [tính giai cấp]: refers to the recognition that the state is influenced by and influences the class structure of society. This perspective is closely associated with Marxist theory. It suggests that the state’s economic policies, political decisions, and propagated ideologies often reflect the interests of the dominant class. For instance, the state might implement economic policies that favor the capitalist class or propagate ideologies that maintain the status quo of class relations. This face of the state is about understanding how class dynamics shape state actions and how state actions, in turn, impact class relations. + Economics: key productive assets + Politics: create order + Ideology: establish ideologies Social face [tính xã hội]: refers to the role of the state in shaping and being shaped by social relations. This perspective views the state not just as a political entity but as a social institution that is embedded in and interacts with various social structures. The state plays a crucial role in maintaining social order, providing public goods, and Downloaded by Gia Linh ([email protected])  lOMoARcPSD|38042002 regulating social relations. It is also influenced by social forces such as public opinion, social movements, and cultural norms. This face of the state is about understanding the state’s role in society and the social influences on the state. + Solve the problem arising from society + Ensure the needs of the community and protect them. Separation of state powers: Legislative power(lập pháp): power to make law Executive power(hành pháp): power to carry out the law Judicial power(tư pháp): power to interpret(diễn giải) the law I. Origin of Law Non-Marxist view of the origin of Law Social Contract Theory: Law represents the general will of the community Psychological theory: Law is people’ intuition(trực giác con người) about the right way to behave Theology: Law is created by God Marxist t Theory: Law definition: Laws are legally enforceable rules made by authorities within a society. Law is an element of social “superstructure”, the form and use of which, at any given time will be the reflection of the condition of the economic based. (trong học thuyết Macxit) các thể chế và nền văn hoá sản sinh từ chế độ kinh tế của một xã hội; kiến trúc thượng tầng. Law is all around Origin of law: From primitive community: Distinguish: rules and laws, legal rules and non-legal rules, law and custom, law and morality Essence of law: the wills of ruling classes determined by material conditions of a society(do điều kiện vật chất). a. Rules and Laws: Rules are something that tells people what they should do or should not do. (household rules, school regulations) Rules include LEGAL RULES and NON-LEGAL RULES. Not all rules are law! a. Legal rules and Non-legal rules Legal rules are known as laws and apply to all individuals in society. Non-legal rules determine what behavior is unacceptable in particular groups or institutions. Legal rules Non-legal rules Downloaded by Gia Linh ([email protected])  lOMoARcPSD|38042002 to be obeyed by the whole of society to be obeyed by specific individuals or made by a law-making body groups enforced through the courts made by individuals or groups consequences of breaching is a enforced by leaders of a group or prescribed sanction/remedies individuals imposed by the courts consequence of breaching is at the discretion of the leader of a group(hậu quả của việc vi phạm là do người đứng đầu nhóm quyết định) a. Laws and Morality Morality: concept about being good or evil, right or wrong. Morality is not enforceable while law is. Besides the visual behavior it also addresses intention and attitude. Moral principles can be based on culture, religion, and experiences. People complying with moral rules are regarded as good and just people. Actions may be legal, Actions may be required Actions may be moral, but not required by law. but immoral to some by both moral standards people. and the law. Abortion under Drunk driving Take care of parents. 22 weeks. Murder and Helping a hurt person is required by moral Owning slaves stealing standards, but is not mandated by the law. in Colonial America was legal, but this violates most people’s moral standards today. a. Law and Custom Custom is based on a common consensus(đoàn kết) on how things should be done properly. People not complying will not be regarded as bad people, but they will be perceived as odd, uneducated, awkward. I. Classification of Laws 1. Public law and Private law Public law refers to the rights and obligations of governments as they deal with the nation’s citizens. Private law regulates the duties between individuals. 1. Criminal law and Civil law Criminal Law Civil Law Downloaded by Gia Linh ([email protected])  lOMoARcPSD|38042002 Concerns offences(liên quan đến hành vi Concerns disputes(liên quan đến tranh phạm tội) against the whole community chấp) between private individual or even though only one person may suffer. business organizations. A prosecutor(công tố viên) prosecutes(truy A claimant/plaintiff(nguyên đơn) sues a tố) an accused.(bị cáo) defendant.(bị đơn) The action is heard in criminal courts(toà The action is heard in civil courts.(toà án hình sự). án dân sự) Sanctions: Imprisonment, fine... Remedies: Damages, injunctions(lệnh Example: Murder, theft, drug dealing cấm), specific performance( rescission(rút lại). Example: Contract(hợp đồng), tort(tra tấn), trust(uỷ thác), property law(luật tài sản) 1. Substantive law and Procedural law Substantive law(luật nội dung) is a law that creates and controls the right and duties of parties.(tạo ra và kiểm soát quyền và nghĩa vụ giữa các bên) Example: Law of contract, Company law, Labor law, etc. A procedural law(luật hình thức) is a law that creates and controls the process of enforcing the rights and duties under substantive law, the process of settling disputes.(luật tạo ra và kiểm soát quá trình thực thi các quyền và nghĩa vụ, theo luật hiện hành và quá trình giải quyết tranh chấp) Example: Civil Procedure Code (rule on how to plead in court, how to provide evidence, etc.….) I. Sources of Law Customs Customs are rules of conduct(quy tắc đạo đức) with clear content to determine the rights and obligations of individuals and legal entities in specific civil relations formed and repeated many times over a long period of time that are widely recognized and applied in a regional ethnic groups community or in a civil field Application of customs In cases where it is neither provided for by law nor agreed upon by the parties, customs may apply but they must not contravene the basic principles of the Civil Law ( Art.5(2) CC 2015 ) Customs must be clear to determine the rights and obligations of the parties in civil relations Customs must be practices that are formed, widely recognized and applied Downloaded by Gia Linh ([email protected])  lOMoARcPSD|38042002 Customs apply in cases where the parties do not have an agreement and the law does not stipulate(quy định) The application of customs must not be contrary to the basic principles of civil law Case law Case law is a collection of principles and rules based on the decision of judges, and it is also referred to as judge-made law or precedents((tiền lệ). Case law is the main source of law in common law countries: US, UK, Canada, Australia…. Principle of precedents: A court should apply the rulings of previous cases tried in a higher court in situations where the facts are the same. Courts only apply the key reasons for the decision-ratio decidendi.(cơ sở lí luận) How to apply case law: Principle of Stare Decisis: Similar cases should be treated alike (R v E. Manley , R v Jones ) Principle of Distinction(khác biệt): to find out the difference between the current case with previous precedents (Donoghue v Stevenson , Grant v Australia Knitting Mills ) Statute law(luật thành văn) Statute law(luật thành văn) is a system of written rules that are enacted/created by the legislative body of the government. Statute law is the main source of law in civil law(luật dân sự) countries: France, Germany, Netherland… Statutes consist of legislation and delegated legislation Legislation(pháp luật): Legislation is created by Parliament(Quốc hội) Constitution Codes Acts Example: Civil Code, Criminal Code, Law on Enterprises, Sale of Goods Act… Delegated legislation: (pháp luật được uỷ quyền) Parliament may delegate its power to make law to other state agencies. Rules made in this way are known as delegated legislation. Delegated legislation refers to those laws made by persons or bodies (usually government ministers or local authorities) to whom Parliament has delegated law-making authority. ko thuộc nhánh lập pháp Legal document of Vietnam Downloaded by Gia Linh ([email protected])  lOMoARcPSD|38042002 Statute law vs Case law Where a statute law conflicts with case law, courts must follow or apply statute law. Where there is no relevant statute, courts will rely on case law. Court may also use case law to interpret statute law which is unclear. Legal norms(quy phạm pháp luật) Legal norms are general rules of conduct(quy tắc ứng xử) promulgated(ban hành) or recognized and guaranteed by the State to regulate social relations according to the orientations and purposes of the state. A mandatory rule(luật bắt buộc) of social behavior established by the state. Structure of legal norms include: Assumption (Hypothesis): Who? When? Condition or situation to apply. Regulation (Disposition): Must do something? Must not to do something? How to do something? Allow to do something? Sanction: Consequence Structure of legal norms: Downloaded by Gia Linh ([email protected])  lOMoARcPSD|38042002 A legal norm does not necessarily have all three parts. Usually, a legal norm will include: presumption + regulation, presumption + sanction. When presenting a legal norm, it is not necessary to ensure the correct order: Assumptions – regulations – sanction, those parts can be reversed, even those parts can be mixed together. eg: I. Statutory interpretation Literal rule: London and North Eastern Railway Co v Berriman (1946) Real case 1: London and North Eastern railway co v Berriman (1946) - Đang tra dầu mỡ thì bị xe cán - Tại sao railway không phải bồi thường? + Lúc tra dầu mỡ đã không để biển warning + Applying oil (tra dầu mỡ đường tàu) is not a part of repairing → not apply in this case Golden rule Re Sigsworth (1935) Mischief rule Downloaded by Gia Linh ([email protected])  lOMoARcPSD|38042002 Smith vs Hughes (1960) Class rule (Ejusdem generis rule) Ex: if the Act referred to ‘cats, dogs, or other animals’, the general words, ‘other animals’, should be constructed in the light of the particular words, ‘cats’ and ‘dogs’, as other kinds of domesticated animals and not wild animals. Problem question (Picture) - Method of answering question + IRAC: Issue - Rules - Application (apply the rule)/ Analysis - Conclusion Answer question (picture) - Issue: ] Gilly had a pair of nail scissors in his pocket. Gilly was caught attempting to pass the friend a wig and jacket - Application: 1. Literal rule: A person must not take into a prison any knife, dagger, firearm, club or other thing whatsoever. 2. Class rule: + The word “nail scissors” is considered to be a part of the general words “knife, dagger”. 3. Mischief rule: + The purpose of law is to prevent all circumstance of prison escaping + Bringing a wig and a jacket may help prisoners to make up and disguise → include in the circumstance of prison escaping. - Conclusion: Gilly is guilt TOPIC 2: CIVIL LAW IN VIETNAM Definition: Civil law is a separate law branch in the Vietnam legal system, a set of rules regulating property relations and personal identity relations on the basis of equality, freedom of will, independence of property and self-responsibility. (Luat nhan than, Luat tai san) ➔ Types of civil relations: Property relations Personal identity relations I. General principles of Civil Law 1. Equality principle 2. Principle of freedom and voluntariness 3. Principle of honesty and good faith 4. Principles of respecting national and ethnic interests, public interests, and legitimate rights and interests of others 5. Principle of self-liability(trách nhiệm pháp lý) Downloaded by Gia Linh ([email protected])  lOMoARcPSD|38042002 I. Sources of Civil Law in Vietnam Statutory Law Legislation: Constitutions year of 2013 Civil code year of 2015 Other specialized laws Delegated legislations Case Law Customary Law I. Civil legal relation Definition: Civil legal relations are social relations arising from material and personal interests which are governed by civil law. Example: Marriage and Family Relations Business and Trade Relations Labor Relations Inherent Relations Characteristic Parties are equal. Parties are responsible for their own act. Parties have free will. Parties are independent in terms of property. Elements of legal relations a. Parties: Individuals or organizations who have capacity. (CHU THE) Individual Downloaded by Gia Linh ([email protected])  lOMoARcPSD|38042002 Individual + Capacity = Parties of Civil legal relations Civil legal capacity + Civil Act capacity = Capacity of parties Civil legal capacity is a legal concept that refers to a person’s ability to participate in legal proceedings and transactions. It includes the ability to have rights and obligations in a civil context. This capacity exists from the time a person is born and ends when they die. In essence, civil legal capacity is about the recognition of a person as a legal individual who can engage in civil activities, such as signing contracts or owning property. Civil Act Capacity is a legal term that refers to an individual's ability to establish, exercise civil rights, and perform civil obligations through their own actions. This capacity is often determined by factors such as age, mental health, and legal status. For example, in many jurisdictions, adults (typically defined as individuals who are 18 years or older) have full civil act capacity, meaning they can enter into contracts, own property, and engage in other civil activities. However, this capacity can be lost or limited due to certain circumstances, such as mental incapacity. It's important to note that the specific rules and definitions can vary depending on the jurisdiction or country's laws. Types if capacity for civil conducts Downloaded by Gia Linh ([email protected])  lOMoARcPSD|38042002 No capacity for civil conducts: < 6 years old Limited capacity for civil conducts: 6