CIVIL LAW

Author: Ta Diu Thuong, LLMInternational University, HCMC National University

LECTURE’S CONTENT

Part I. General

1. Definition

2. Subject of regulation

3. Method of regulation

4. Source of civil law

Part II. Main institutions of Civil Law

PART I. GENERAL

1. Definition:

Civil law is:

Independent branch of VN legal system

Group of legal regulations, adopted by the State to acknowledge and define legal status; set legal standards for behavior, actions of persons and other subjects; establish rights and obligations of participants in civil, marriage and family, business, trade, labour (civil relations)

Based on equality to all participants of such relations.

Material

Moral

CIVILFamily and marriage

Business, Trading

Labour

2. SUBJECT MATTER: CIVIL LAW GOVERNS MATERIAL AND MORAL RELATIONS

Civil Code 2005

3. METHOD OF REGULATION: BASED ON PRINCIPLES OF EQUALITY AND OF MUTUAL CONSENT.

Legal civil relations are those social relations regulated by civil law provisions, in which involving parties are independent in organization/asset, legal status, rights and obligations which are protected by the State.

CIVIL ACT CAPACITY

6 yrs old

15 yrs old

18 yrs old

Without consent of the representative at law, if having one’s own property to ensure the performance of obligations, unless otherwise provided for by

Subject to consent of one’s representative at law, except for transactions for daily life needs suitable to one’s age

No civil act capacity

Full civil act capacity

Unless civil act capacity lost or

restricted

(Art 18-23 Civil Code 2005)

4. Subject matters

1. Natural person (Individuals)

2. Legal person

3. Family household

4. Cooperative

5. State (Special)

Civil Legalcapacity

Civil Actcapacity

Civil capacity

4.1 NATURAL PERSON (INDIVIDUALS – CHAPTER III CC 2005) IS THE MOST COMMON IN CIVIL LAW. TO BE A SUBJECT OF CIVIL LAW, INDIVIDUALS MUST HAVE:

Civil act capacity of a natural

person

Full(art.19)

In parts(art 20)

N/A(art. 21)

Lost(art. 22)

Restricted(art. 23)

Legal Civil capacity

(possibilities to have civil rights/obligations in conformity with its charter)

4.2 Legal Person

Art 84 of VCC defines who is qualified to be “Legal person”

LEGAL ENTITIES

1. Types:

Art. 84 of VCC 2005: provides for at least 4 types.

At least 2 ways to deal with Termination of Legal entity

4.3 HOUSEHOLD FAMILYIs “Members have common property and jointly contribute their efforts and labor to their common economic activities in agricultural, forestry or fishery production or in a number of other production and/or business activities”. Head of household family: Age Property comprises: LURs, Forest URs, and other; Members of households shall agree on issues….

4.4 COOPERATIVE GROUPS

Formed and Certified by commune/ward/township People’s Committees;

Comprised of 3 and more people

Registration

Age: Head of Cooperative is appointed by choice of members

Civil actions taken by the Head

How to dispose property:

PART II. MAIN INSTITUTIONS

1) Civil transactions

2) Property and ownership rights

3) Civil liabilities and civil contract

4) Inheritance

5) LURs transfer

6) IP rights and technology transfer

7) Civil relations involving foreign elements

PROPERTY

Art. 163 Civil Code 2005

TYPES OF PROPERTIES

1. Immovables/movables

2. Yields and profits

3. Primary objects and auxiliary objects

4. Divisible objects and indivisible objects

5. Expendable objects and non-expendable objects

6. Fungible objects and distinctive objects

7. Integrative objects

8. Property rights (inc. intellectual property rights)

(Art. 174-181 Civil Code 2005)

OWNERSHIP RIGHTS

Ownership rights

POSSESSION

USEDISPOSAL

Art 164 Civil Code 2005

FORMS OF OWNERSHIP

• Common ownership by share• Common ownership by

integration

COMPARISON WITH 6 ECONOMIC SECTORS UNDER CONSTITUTION

Civil Obligations & Civil Contracts

GENERAL

A task under which the obligor(s) must perform certain tasks or refrain from doing certain tasks in the interest of the obligee(s).

Eg: transfer an object, transfer rights, pay money or return valuable papers,

SUBJECT MATTERS

Subject matters include: Assets Task(s) to be done Task(s) not to be done

To be identified clearly Assets to be transferable, tasks to be performable Not in contrary to laws and social ethicsEg: heroin – not transferable as prohibited

CIVIL LEGAL RELATION ON OBLIGATIONS

Owner (Subject): involved parties, including individuals, legal persons, cooperative groups, family households, State of SRV.

Target (Object): Behaviors of owners as required for obligations to be performed, including actions or non-actions

Content: civil rights and civil obligations of owners

BASES TO CREATE CIVIL OBLIGATIONS

Civil contracts

Unilateral legal acts

•Performance of a task without authorization

•Possession and use of property or enjoyment of property without legal cause

•Causing damage by performing an illegal act

BASES TO TERMINATE CIVIL OBLIGATIONS

Fulfillment of obligations

Agreement by parties

Obligee’s waiver on performance of obligations

Replacement by another civil obligations

Offset of obligations

Expiry of limitation period

Death of individual or termination of legal person as one of the parties

Bankruptcy of a legal person

SECURITY MEASURES

Pledge of assets – lien of a certain (movable) asset for performance of obligations

Mortgage of assets – lien of immovable asset for performance of obligations

Deposit

Security Collateral – for lease of movable assets

Escrow Account – deposit of assets to bank

Guaranty by third party

CIVIL TRANSACTIONS

1. IS A Contract or unilateral legal act which gives rise to, changes or terminates civil rights and/or obligations (chapter 6 VCC 2005).

2. Conditions for civil transactions to become effective: 3 conditions;

3. Forms of civil transactions: verbal, in writing or certain acts.

4. At least 7 grounds for transactions to be qualified “Invalid”

A civil transaction is a contract or unilateral legal act which gives rise to, changes or terminates civil rights and/or obligations.

(Chapter 6 VCC 2005)

Civil Transactions

Civil transactions

Unilateral legal acts

Contracts

CONDITIONS FOR VALIDITY

3 conditions for civil transactions to become effective:(a) The persons participating in the transaction have

the civil act capacity;(b) The purpose and contents of the transaction do not

violate law and are not contrary to social ethics;(c) The persons participating in the civil transaction act

completely voluntarily.

FORMS OF CIVIL TRANSACTIONS

Business contracts

Oral

Written

Normal

Notarization

Authentication

Registration, Permission

By certain act

HOW TO DEFINE A CONTRACT?

Is there an agreement

in existence?

Who are the parties?

To establish, change or terminate

what rights and

obligations?

POPULAR CIVIL CONTRACTS

Contract for sale and purchase of property/houses

Contract for property exchange

Contract for donation of property

Contract for property loan Contract for property

lease/house lease Contract for package lease

of property Contract for property

borrowing

Service contract Contract for transportation

of passengers/assets Processing Contract Contract for bailment of

property Insurance contract Mandate contract Contract on Promise of

reward Contract on Competition for

prizes

Inheritance

GENERAL

Inheritance relationship – appeared at the same time of ownership relationship in history

Inheritance is an institution of law consisting of a set of regulations

i. to govern the procedure for transfer of property and property rights of decedents to the alive one(s) in accordance with testament or otherwise,

ii. to define relevant rights and obligations, and methods to protect the same.

WHO ARE:

Estate Leaver?

Heir?

Estate administrator?

TIME AND PLACE FOR OPENING INHERITANCE

1. Time: Death of estate leaver. In case death is announced by Court, the moment such a court’s decision come into enforcement will count.

2. Place: Last domicile of estate leaver. If such domicile cannot be defined, the location of estate or the biggest part of the estate, will count.

(Art. 633 Civil Code 2005)

INHERITANCE TYPES

Testamentary Inheritance

Inheritance by Law

TESTAMENTARY INHERITANCE

Transfer of estates by estate leaver’s will made before

his/her death

Estate Leaver has the right to inherit or nullify the rights to inherit upon his will and without explanation

CONDITIONS FOR A LAWFUL TESTAMENT

Testator has civil act capacity: 18 years old up or from 15 to 18 years old subject to consent of parents or guardian

Testator is clear-minded and voluntary: no mental diseases, not being deceived, threatened, or forced

Content of testament is not contrary to law and social ethics

Forms of testament are lawful

Special requirements (look for relevant articles in Civil Code 2005)

HEIRS INDEPENDENT FROM CONTENT OF TESTAMENTS

Shall be entitled to 2/3 of the portion given to an heir at law if the estate were divided by law, even though the testator provides for none or less.

Include:

Minor children, father, mother, wife or husband;

Adult children without working capacity

Unless they (i) disclaim the estate or (ii) are not entitled to enjoy the estate

INHERITANCE AT LAW

Inheritance at law -• in accordance with the ranks,

conditions and order of inheritance provided for by law (Art. 674 VCC 2005).

CASES OF INHERITANCE AT LAW

There is no testament

Testament is unlawful

All the testamentary heirs die before or at the same time with the testator, organizations designated as testamentary heir no longer exist

Persons designated as testamentary heirs shall not have the right to inherit or have disclaimed their inheritance rights

Part of the estate is not disposed of in the testament, is related to the invalid part of the testament or is related to a testamentary heir with no right to inheritance

HEIRS AT LAW

3 bases: marriage, blood, child raising/adoption

3 ranks: First rank: wife/husband, biological parents, adoptive

parents, biological children and adopted children

Second rank: paternal and maternal grandparents, natural brothers and sisters, grandchildren

Third rank: paternal and maternal great grandparents, paternal and maternal uncles and aunts by blood, nephews and nieces by blood, great grandchildren

Inheritance by substitution Grandchildren as heirs in place of deceased children

Great grandchildren as heirs in place of deceased grandchildren

SPECIAL CASES OF INHERITANCE RELATIONSHIP

Between adopted children and their adoptive parents – YES

Between adopted children and their adoptive siblings, grandparents - NO

Between adopted children and their biological parents - YES;

Between adopted children and their biological siblings, grandparents –YES

Between children with step-parents – YES, only if care and raising as children

Between parents and illegitimate children – YES

Between children with different father or different mother – YES

Between children of stepmother and children of stepfather - NO

Between husband and wife who have divided their common property – YES

Between husband and wife who are applying for divorce – YES

Between husband and wife who have been divorced – NO

Between husband and wife at time of inheritance opening, who then have been married to another person - YES

Between persons who are entitled to inherit each other’s estate but die simultaneously - NO