Remedy: Biện pháp khắc phục, chế tài (=Punishment)
CHAPTER 1:
Constitution is the Law of Laws because it has the highest ranking and it’s the
foundation of all law
Legislation is created by the state agency, the National Assembly
Legislation would be higher in legal effect because it's broader and made by the
highest authority agency (National Assembly), and the Delegated Legistration is lower
in ranking
We need DL because it sets out the principle, L is too broad, not effective in real life
situation. That's why we created DL to be more detail for easier realistic application
If there are conflicts, anything in legislation will prevail over delegated legislation
Directives (Chỉ thị) and Official Letters (Công văn) not official documents because not
mentioned in Article 4 of the Law on the Promulgation of Laws. They are
Administrative Document (Văn bản hành chính). Find Issuers and Functions
Directive:
+ According to Article 95 point 5 of the Law on the Promulgation of Legal Document
2008, Directives are issued by the Prime Minister, Chief Justice of the Supreme
Peoples Court, the President of the Supreme People’s Procuracy, Ministers, Heads of
Ministry-equivalent agencies.
+ Currently, Directives are no longer Official Document and are issued as
Administrative Document by People’s Committee at all levels
+ Function: Regulate, propagate, and implement documents of higher-ups. Proposing
implementation measures for relevant organizations and individuals. Direct, urge and
assign tasks to lower officials.
+ Example: Directive 16/CT-TTg on urgent measures to prevent, control the COVID-
19 pandemic
Official Letter:
+ Official Letters are administrative document regulated by Article 7 of Decree No.
30/2020/NDCF
+ Functions: Official Letter are use by multiple organization and agency to
communicate and exchange information between the higher-ups, subordinate and even
civilian. Many authorities express their views and interpretations of a legal provision
through it. Government authorities even give instruction on how certain issues should
be addressed if there is no law regarding such issue or the law is not clear using
Official Letter.
Provide useful interpretive aid and guidance for lawyers and practitioners
I. Ordinances are issued by the Standing Committee of the National Assembly
(Ủy Ban Thường vụ Quốc hội), sometimes in a delegated capacity according
to Article 4, point 1 of the Law on the Promulgation of Laws
According to Article 12, Point 1 of the Law on Promulgation of Legal Documents
1. Ordinances of the Standing Committee of the National Assembly shall contain
regulations on issues upon instruction by the National Assembly. After a certain
period of implementation, these issues shall be proposed to be developed into
laws for the National Assemblys consideration and decision.
Cover things that Laws haven’t cover
Why it exists: Ordinances are new, it’s not in the law and it’s still unstable
II. Decrees are form of documents issued by the Government according to
Article 4, point 5 of Law on the Promulgation of Laws (Although the Prime
Minister leads the Government, he doesn’t have the power to make decrees)
According to Article 14 of the Law on Promulgation of Legal Documents, Decrees are
used to:
1. Provide detailed guidelines on the implementation of laws and resolutions of the
National Assembly, ordinances and resolutions of the Standing Committee of the
National Assembly, orders and decisions of the State President; 2. Provide specific
actions to implement policies in the following fields: economics, society, national
defence and security, finance, money, budget, tax, ethnicity, religion, culture,
education, health, science and technology, environment, external relations,
organization and functioning of the state apparatus, civil service, public officials and
civil servants, rights and obligations of citizens and other issues within the
Governments management and administration authority; 3. Specify tasks, authority
and organizational structures of Ministries and Ministry-equivalent Agencies,
Government-affiliated Agencies and other agencies within the authority of the
Government; 4. Identify other important issues which are not mature enough to be
developed into laws or ordinances to meet governance and socio-economic
management requirements. The issuance of decrees shall be subject to agreement by
the Standing Committee of the National Assembly.
They are used to implement and clarify laws passed by the National Assembly
or to provide detailed regulations for the administration of certain policies.
Example: Decree No. 99/2019/ND-CP detailing the Law on Higher Education:
detailing and guiding the implementation of a number of articles of the law amending
and supplementing a number of articles of the law on higher education
III. Circulars are issued by Ministers and Head of Ministry-equivalent Agencies
or either the Executive Judge or the Chief Procutor of the Supreme People’s
Court according to Article 4, point 8 of the Law on the Promulgation of
Laws
According to Article 16 of the Law of Promulgation of Legal Documents
Circulars of Ministers and Heads of Ministry-equivalent Agencies shall provide: 1.
Detailed guidelines on the implementation of laws and resolutions of the National
Assembly, ordinances and resolutions of the Standing Committee of the National
Assembly, orders and decisions of the State President, decrees of the Government
and decisions of the Prime Minister; 2. Regulations on technical processes and
standards as well as techno-economic norms of the sector/area covered by each
Ministry or Ministry-equivalent Agency; 3. Ways to exercise management of the
sector/area covered by each Ministry or Ministry-equivalent Agency and other
issues upon instruction by the Government.
Function: provide detail guidance on decree
Compare between Decrees and Circulars: Decree is issued by an organization
while Circular is issued by a single person
Decree prevail over circular because it’s issued by the government, a higher
authority than the head of ministerial-level agencies
Vietnam Court System: District People Court => Provincal-Level People Court =>
People High Court => Supreme People’s Court
Judge (thẩm phán) vs Executive Judge (chánh án): Both can judge/apply the law
but the Executive church also administ the court (basically a manager)
Supreme People’s Procuracy, Chief Procutor of the supreme people’s court (viện
kiểm sát nhân dân tối cao) only available in socialist countries. Their roles are:
power to prosecute (quyền khởi tố), control judical activites (kiểm soát tư pháp)
Ministers of ministries can make circulars but it must be related to their works
Only minister can make circulars, not ministries
Head of ministrial-agency (State bank of VN, leader is governer (thống
đốc)/committee of ethnic affairs/government office, leader is Head of government
office (chánh văn phòng chính phủ), government inspectorate (thanh tra chính
phủ))
IV.According to Article 4 of the Law on the Promulgation of Laws, Decisions are issued
by the President (point 4), the Prime Minister (point 6), the State Auditor General
(point 8), the People’s Committee of Provinces/Districts/Communes (point 10,
point 13 and point 15)
According to Article 15 and Article 19 of the Law on Promulgation of Legal
Documents
Decisions of the Prime Minister shall focus on: 4 1. Ways to lead, manage and
administer the Governments operations and public administration system from the
central to grassroots levels, working regimes of the cabinet members, Chairmen of
Peoples Committees of provinces and cities under central management and other
issues within the Prime Ministers authority; 2. Ways to guide and coordinate the
cabinet members activities; and examine operations of Ministries and Ministry-
equivalent Agencies, Government-affiliated Agencies and Peoples Committees at
all levels in compliance with the States directions, policies and laws.
Decisions of the State Auditor General shall prescribe the States auditing standards
and guide their implementation; and provide detailed auditing process/procedures
and supporting documentation.
Function: Issue ways to perform the guidelines and policies
V. According to Article 4 of the Law on the Promulgation of Laws,
Resolutions are issued by the Standing Committee of the National Assembly
(point 3), the Judge Council of the People’s Supreme Court (point 7), the
People’s Councils of Provinces/Districts/Communes (of all levels) (point 9,
point 12 and point 14)
Function: guidance in applying/interpreting laws in a consistent manner .
VI. According to Article 4 of the Law on the Promulgation of Laws, Orders are
issued by the President (point 4)
Function: aim to exercise the tasks and authority of the State President defined
in the Constitution, laws and resolutions of the National Assembly, ordinances
and resolutions of the Standing Committee of the National Assembly.
VII. According to Article 4 of the Law on the Promulgation of Laws, Joint
Circulars are issued between executive judge of the People’s
Supreme Court and the Chief Procurator of the Supreme
People’s Procuracy or between Ministers, Heads of ministerial agencies
and executive judge of the People’s Supreme Court, the Chief Procurator of
the Supreme People’s Procuracy (point 8)
Function: guide the consistent application/interpretation of laws in litigation
activities and provide regulations on other issues related to the tasks and
authority of those agencies.
VIII. According to Article 4 of the Law on the Promulgation of Laws, Joint
Resolutions are issued between Standing Committee of the National
Assembly and Management Board of Central Committee of
Vietnamese Fatherland Front
Function: Provide guidelines on how to address the issues related to the
participation of those organizations in state management as stipulated by law.
