The influence of civil law system on vietnamese legal system

H A N O IL A W UNIVERSITY LUND UNIVERSITY FA C U LTY O FLA W THE INFLƯENCE OF CIVIL LAW SYSTEM ON VIETNAM ESE LEGAL SYSTEM S P E C IA L IT Y : IN T E R N A T IO N A L A N D C O M P A R A T IV E L A W C O D E: 603860 M ASTER OF LAW THESIS NGUYỄN VĂN NAM THƯVỈỆN S U P E R V IS O R S : ỈRƯỜNG RAI HỌC LUẬT HÀ n ộ i I PHONG DỌC DR PROF THAI VINH THANG JẾf)3 DR.PROF KJELL- A MODEER HÀ NÔI - 2004 Contents PREFACE ABBREVIATIONS INTRODUCTION SOME GENERAL VIEWS OF CIVIL LAW SYSTEM AND A PICTURE OF VIETNAMESE FEUDAL LAW BEFORE BEING INFLUENCED BY CIVIL LAW SYSTEM 2.1 Introductỉon 2.2 Overview of civil law system 5 2.2.1 Terminology o f civiỉ ỉaw system 2.2.2 History o f civỉl law system 2.2.3 The Distribution o f the civil law 10 2.3 Overview of Vietnamese feudal law before coỉonial time 12 2.3.1 Introduction 2.3.2 The concept o f law 12 12 2.3.3 Some main codi/ìcion o f Vietnamese feudal law 17 PERIOD OF THE INFLUENCE OF CIVIL LAW SYSTEM IN VIETNAM 3.1 Introduction 3.2The period of French colony(1862-1945) 21 21 21 3.2.1 Introduction 21 3.2.2 French laws were imported ỉn Vietnam by imposition 22 3.2.3 The evaluaíion o f the reception o f French law 23 3.2.4 The Ideologies in Vietnam during Colonial regime 27 3.3 The inữuence of French law after August revolution o f 1945 to the renovation times (Doi moi) 29 3.3.1 Introduction 29 3.3.2 The period fro m 1945 to 1954 29 3.3.3 Theperiod fro m 1954 to 1976 30 3.3.4 The period fro m 1976 to 1986 31 3.3.5 Renovation o f Vietnamese legal system 32 RECEPTION OF FOREIGN LAW IN VIETNAM IN THE CONTEXT OF REGIONAL AND INTERNATIONAL INTEGRATION 4.1 The concept of legal reception 35 35 4.2 Main aspects relating to the inAuence of civil law system on Vietnamese legal system up to now 39 4.2.1 In the area o f civil law and commercial law 40 4.2.2 Legal education in Vietnam reỉating to legal education in some civil law counties 43 CONCLUSION 48 BIBLIOGRAPHY 50 Preface The iníluence o f Civil law system on Vietnamese legal is very extensive under the comparative point of view The question of how to identiíy Vietnamese in relation to civil law legal system is very interesting and delicate question It would be rational if we deal with this issue from comparative and historical perspective point o f view Theoretically each legal system of one country is determined by the tradition, historical aspects through its development The picture of Vietnamese legal system to day is determine by the historical factors, the tradition, the iníluence of the diổusion of civil law during the time of colonial time and the iníluence of Soviet law from 1954 to 1986 In the frame of this thesis I would like to elaborate the iníluence o f civil law system on Vietnamese legal system through the main historical periods o f Vietnamese legal history I just focus the iníluence of civil law system on Vietnamese legal system in the area of private law (mainly civil law and commercial law) as well as legal education Vietnam has been undergoing economic reform since 1986 An important part o f that law reíorm has been inevitable task In the colonial time Vietnamese legal system developed in relation to western law by imposition of Prench law in Vietnam Today, Vietnamese legal system has been developing in relation to western laws by voluntary reception of western law to cater for the demand o f market economy The legal transplantation is gradually pervading all area o f Vietnamese legạl system so that in this thesis I want to mention to the concept of reception of law not only from countries belong to civil law tradition but also from other legal tradition The thesis cannot necessity o f provide in depth all aspects o f Vietnamese legal system, nor cannot it cover all aspects o f the iníluence o f Civil law system on Vietnamese legal system The result of my studies in this thesis to some extend may contribute for identiíying Vietnamese legal system For a person who has very little experience in comparative law and I fist carry out the research in comparative law In addition comparative law seem to be very new discipline in Hanoi law University as well as others law school in Vietnam so that shortcomings are inevitable to my limited knowledge and time for doing it However, I hope that the content of my thesis to some extend shares the point of view with any ones who concerning Vietnamese legal system from comparative law point perspectives To complete this thesis, I would like to express my gratitude to Prof Kjell Modeer, Prof Thai Vinh Thang for their assistance me in writing my thesis I also would like to say thank you to all of those who help.in preparation of this thesis: to íaculty o f law o f Lund University, Hanoi law University I would like to acknowledge the help o f SIDA( Swedish International Development Cooperation Agency) that give me scholarship to study master programme in Vietnam and in Sweden Nguyen Van Nam Hanoỉ, Nov 2004 Abbreviations < Abbreviation text > Am J Comp L ASEAN BGB Colum J.Asian L EU HKLJ ICLQ < Explanation > American Joumal of Comparative Law Association of South - East Asian nation German Civil Code Columbia Jouraal of Asian Law European Union Hong Kong Law Joumal International & Comparative Law Quarterly Ind J Global Legal Stud Indiana Joumal of Global Legal Studies L & Bus Rev Law and Business Review of the Americas L & Soc'y Rev Law and Society Review LFI Law on Foreign Investment Mich J Int'l L Michigan Joumal of International Law Mod L Rev Modern Law Review NLDM New Law Development Movement ưcc ưniíịrm Commercial Code ưs United States WTO World Trade Organization Introduction Law exists in all societies in the world; any society has been iníluenced by law \ From the legal history and comparative point of view the legal system of each country is not isolated from others legal systems As Aian Watson’s view is that it is even so that ‘most change in most systems are the result of borrovving’ Legal systems in the world have their similarities and differences To some certain extent, we can say that legal systeras in the world can be divided in to some major legal systems such as Civil law system, Common law system, Socialist law system etc Regarding to Vietnamese legal system today, the question is how can identiíỳ Vietnamese legal system in relation which the characteristics o f major legal systems in the vvorld How can we subsume Vietnamese legal system into Socialist legal family or Civil law family or Mixed legaỉ system For me after for along time paying much attention to this issue I have decided to chose the title o f my master thesis is “The iníluence of the civil law legal system on Vietnamese legal system” In this thesis I want to approach the issue from comparative law and legal history point of view to describe which reasons made Vietnamese legal system iníluenced by civil law system and the remain and the continuity o f the iníluence To day in the time o f renovation-times (Doimoi), the very necessary need for Vietnam is how to create a good legal system to develop the country within the demand o f market economy Vietnamese legal system now has long historical development Through the long legal history, the iníluence of French law took very important íactor to transfer the Vietnamese feudal legal system to the new form of legal system During the French Colonial regime in Viet Nam (ữom 1858 to 1945) some areas of law and the structure o f court system, the legal education in Viet Nam has been iníluenced by some main characteristic o f Civil law tradition From 1954 the Vietnamese legal system started to be iníluencing by Soviet Union law, the legal system have changed socialist orientation After Doimoi (renovation) the lawmaker in Viet Nam start thinking how look upon Vietnamese legal system to good legal reception to build a good legal system in Viet Nam, especially the reception of law from some civil law countries must be taken into the consideration That is the rationale that I want to illustrate in this thesis to make c le a r about different respects of the inýĩuence o f civil law system on Vietnamese legal system The purpose: The objective of this thesis is to consider the evolution of the inữuence of civil law legal system on Vietnamese legal system that has been taking place from the end of 19th century.The aim of this thesis is íìrstlv to mention the overvievv o f civil law system to make clear how to identiíy civil law system, to distinguish civil law system with other legal system on the world today Secondỉv from the legal history point of view the Vietnamese feudal legal system is also illustrated in general view This content is very important, help us understand how Vietnamese legal system had been changed by the impact of the Jean - Claude Ricci, Introduction l ’ etude du droit, trans By Tran Quang Hieu ( Hanoi, Communicational cultural Publisher, 2002), p A Watson, Legal transplant ( nd edn, the University of Georgia Press, Athens, Georgia, 1993), p 95 importing Prench law in to Vietnam French colonial domination created new features to Vietnamese legal system during the domination Thirdly this thesis aim at clariíying some main periods of Vietnamese legal history relating to the iníluence o f civil law in some respects from civil law to legal education Fourthly The thesis concentrate on the contemporary Vietnamese legal system with the iníluence o f civil law system in civil law code, in commercial law, in legal education and the legal reception is also deíined within the context of Vietnamese legal system Fifthlv the outcome of this thesis will be used for teaching some issues in comparative law in Vietnam The methods: The working methods which mainly I intend to use to deal with the issues of this thesis are comparison and description That mean I want to approach the issues from legal history and comparative law point o f view Base on the legal history I want to describe how the Vietnamese legal system have been changing from the past to now By comparing I can point out the iníluence of civil law system on Vietnamese legal system indifferent perspective of law In some parts of the thesis I also use the analytical method to prove some main points in the content of the thesis, for example analysing the iníluence of legal education in the context of changing Vietnamese legal system to legal system in the colonial regime The resources and literatures are in both English and Vietnamese To carry out the research within the issues of this thesis I use some main text book in the subject o f comparative law like: (1) , Comparative law by Bogdan.Michecil, Nortedts juridile, 1994.(2) Comparative law in the changing world by Peter de cruz London 1995,(3), A Modern approach to comparative law by Peter de cruz ,Kỉuwer, 1993.(4), Major ỉegal sysíem in the world today by Rene David & Jorhn EC.Brierỉey, London Stevens 1978.(5), Legal traditions o f the ỈVorld by H.Patrick Glenn,Oxford university press, 2000.(6) the European legal history by Of Robinson.Tđ Pergus and Wm Gordon pubỉished by Butterworths London 2000 I also use some articles in diíĩerent volume of International encyclopaedia of comparative law and the resources on Wesílaw Com on Internet.The Vietnamese Resources are very important to my thesis those include book of Vietnamese legal history, monograph of law, and articles in Juridicum law review in Viet Nam The limitation of the content of thesis: within the frame of the m a s te r thesis I cannot mention to all respects o f the iníluence o f civil law in Viet Nam In this thesis I have narrovved the content down to analyse some main points of the legal culture perspective The iníluence o f civil law system on Vietnamese legal system is mainly mentioned in the area of civil law, commercial law, court, and legal education The period of French domination in Vietnam is concentrated because this period the starting o f the iníluence o f French law took place French colonial emperor promulgated many laws and applied those laws in Viet Nam during the time o f domination but I only íịcus on what happened in the area of private law in this period and the legal education changed French orientation The system o f the court is also mentioned because this is very important proof to prove the changes to Vietnamese feudal legal system Some íịllovving period, after the period o f French domination I have paid much attention to how the iníluence of civil law could be remained and have lasted so far To look upon the contemporary Vietnamese legal system in relating to Civil law system I just focus on the area of civil law, development of commercial law, and legal education and how to think about the task of legal reception in Vietnam today to create a good legal system Some general view of the civil law system and a picture of Vietnamese íeudal law beíore being iníluenced by civil law system 2.1 In troduction Civil law system has a very long history in its development The civil law system has its iníluence all over the world by many reasons From the historical point of view, civil law system exceeđed the boundaries of the ancient Roman Empire In the modern time, Civil law system spreads throughout the world, from Latin America, a large part o f Aírica to the countries of the Near East, Japan, Indonesia and Viet Nam There are two mains reasons to explain why the iníluence o f civil law system has taken place in so many countries in the world The /irsí reason is the colonization that imported the laws from Metropolis to their colonial countries The second reason is the voluntary reception of civil law like Japan In many countries owe to the iníìuence of civil law, their legal system have changed from the old form to the new form that have the relation with the civil law system If One legal system have undergone the iníluence of civil law by any fashion it is diíĩicult to get rid of the main characteristics of civil law The iníluence will remain and have decisive for building and developing the legal system of the country For Vietnamese legal system, beíbre being iníluenced by French law, there was no relation to civil law system During the time of French colonization, Vietnamese feudaỉ legal system had been transíerred to the new form French civil law based on the Roman law was imported in Vietnam As the result of the iníluence of western legal culture, the court system in the colonial time was organized by adopting French court organization The democratic idea of French revolution was the important factor that illuminated the rise o f the democratic ideas in Vietnam during the first half of twentieth century Undergoing the imposition o f French law, Vietnamese feudal legal system was changed its homogeneity which was determined by the characteristic o f Vietnamese ancient law, developed under the iníluence of old Chinese law 2.2 Overview of cívil law system 2.2.1 Terminology of civil law system According to Peter de Cruz “It has become established to classiíy the legal system o f the World into three main types of legal íamilĩes or legal traditions: Civil law, common law, and socialist law” A legal system has been deíined as a set of deeply rooted historically conditioned attitudes about the nature of law, the rule of law in the society and the political ideology, the organization and operation o f a legal system3 Comparativists have employed several classiíìcations based on nonhomogeneous factors The most successíul of these is the one proposed by René David, which divides the world in four families: a) common law; b) civil law; c) socialist law; and d) other conceptions of law (residual classification).Other classifiers apparently felt a need to add complexity to this simple scheme Uníbrtunately their own classiĩications become more complicated and hard to remember, and end up coníìrming the very classiíìcation they sought to replace The term of civil law system can be called in others terms such as RomanoGermanic legal system and Continental law system According to Peter de Cruz, it is important to clariíỳ the terminology that is used to describe civil law systems and the civil law tradition, because the term ”civil law” is susceptible to several different meaning5 The term civil law refers to the origin of the legal system that derived from ancient Roman law which originated in Europe on the basic of the Roman ịns civile which was applicable to citizen, between citizens within the boundaries o f a State, in a domestic context Some comparatist also prefer to use the terminology o f Romano-Germanic /amily that means the legal system consists itselí both the Roman heritage and the contribution of German legal S cience in th e d e v e lo p m e n t o f its juristic style In other w o r d w e can explain that the tradition o f civil law is characterised by a particular interaction in its carly íbrmative period among Roman law, Germanic and local customs, canon law7.The present writer prefer the terms civil law system or civil law tradition because they are well established in content and generally typiíy a distinctive juristic style vvhich is widely recognized and accepted.8 The term civil law is associated with civil law countries, When we refer to civil law countries, we are referring primarily to countries which have inherited the Romano- Germanic traditions (vvhich are apart of civil law tradition) which have distinctive juristic style Civil law is to some extend distinguished with the body of law known as commercial law In Common law system there is no distinction drawn betvveen civil law and commercial law, for the simple reason that in Common law systems, Commercial law is part of their civil law ( as apposed to criminal law ) Moreover , as a term o f art, Commercial law is of fairly recent vintage in common law academic thought although its content is traceable to ancient mercantile law (LeX mercatorià) which was developed by international fair and mercantile practice Peter de Cruz,A raodem approach to comparative law, Kluwer law and taxation Publishers,1993, p27 Ugo Mattei, Three pattem s of law:” Taxonomy and change in the world legal systems”, 45 Am J Comp L 5 Peter de Cruz, supra note 3, p41 David and Brieley, M ajor legal system in the world , The Third edition, (Steven &Sons Ltd,1985), p23 Mary Ann Glendon, Michael Wallage Gordon, Paolo G Carozza: Comparative legal tradition, Second edition,( West Group, 1999),plổ Peter de Cruz, supra note 3,p 41 political reasons, there was no condition for the reception of law from capitalism countries To day, under enlightenment of Doi moi policy, the legal reception is now inevitable for modernizing Vietnamese legal system For me, I agree with the great comparatist Otto Kaln Freund who had initiated three main conditions for alien law can be transplanted in one legal system in effective way% I think that these three following conditions should be taken into consideration when Vietnamese legal system is on the process of reíbrming to meet the demand o f Doi moi Legal Ideology Transplanted laws should accord with the dominant ideology in host countries The success of legal transplantation is strongly iníluenced by the congmence between the ideological content o f transplanted laws and host country polítical-legal ideologies Here ideology is used in the Gramscian since to identiíy categories of meaning for understanding social reality Ideology has the 'capacity to persuade people that the world described in its images and categories is the only attainable world in which a sane person would want to live Institutional Variance' Transplanted laws should comport with host country state-power distribution structures and political legal cultures Transplanted law is profoundly iníluenced by the way institutional structures distribute statepower, and the legal cultures (epistemologies) iníbrming oíTicial thinking Legal culture is the historically conditioned, deeply rooted attitudes that iníluence the way bureaucrats and judges use law to íìnd reality It encompasses the epistemological assumptions regarding rationality, efficiency and merit, which in turn shape understandings o f borrowed law Legrand suggests '[t]he aim must be to try to deíine why diíĩerent legal cultures invest similar legal rules with diíĩerent meanings' 98 Special Interest Groups Transplanted laws should attract support from host country special interest groups and comport with local production regimes Certain laws require speciíìc conĩigurations o f State and non-state interest groups, such as market support organisations (for example banks, lawyers, accountants, unions, political parties, markets and family-based commercial stmctures) to ílinction effectively." Some suggestion for the way to receive the foreign law There are many ways to receive, to import the law from alien legal system into ours own legal system The law I mention here should be understood in wide meaning This means law, together with the legal doctrine, Science of law, ideology o f law Today barely anyone defines law as the mere aggregate of mles that govern society Reception o f law plays an important role for reforming Vietnamese legal system It evolves to accommodate doctrinal, legal, and social changes within itself.100 96 Otto Kahn Freud, “ On uses and misuses of comparative law”, ( 1974) 37 Mod.L.Rev, p 1-27 97 John Gillespie, supra note63 98 Ibid 99 o Kahn-Freund, supra note 95 100 ưgo Mattei, supra note 38 (i) Receiving íịreign law by referring to the model of law Today, in some areas of law, such as commercial law, arbitration law is needed to be harmonized The process of making law in each area of law may cost much money it will be good solution for some countries make reference to model law at regional and international level Further more, the harmonization seem to be good result for commercial, private international law Despite all the diữìculties arising in the connection with harmonization and unifìcation, there have been some important successes, primarily vvithin related countries or countries that closely cooperate with each other, such as Nordic countries, the Benelux countries and the member countries of the European Union with a certain fields of law such as international contract law, intellectual property law The perhaps biggest success in recent year has been the 1980 UN convention for the international sale of good (SISG)101 (ii) Receiving alien law in the process of regional and international integration Vietnam, has became the member of ASEAN , is the way to become the member of WTO by 2005 International integration give Vietnam many benìts, but Vietnam has been challenged so much to make the harmonization o f some areas o f internal law with the multi agreement at the international level, such as antidumping law, intellectual law, Recently, the concept of National treatment, Most favour national treatment was oíĩicialỉy appeared in Vietnamese laws, this is the result o f transíbrming the international agreement into the domestic law (iii)Receiving alien laws by co-operating in legal education, legal consultation at the international level It is vvidely accepted that the international cooperation in legal education is a good channel for One countries can understand and import the legal culture of other country into its own legal system (iv)Receiving alien law by using the result of scientific research Doing the research in law is the routine works of raany legal scholars The researcher always discover the hole and irrational o f diíĩerent area of law and then they carry out the research tọ fmd the solution by comparing the way to deal with the issue in íịreign countries The out come of the research may pay the way for importing of foreign law In the context o f Vietnam today, the output of reception of íịreign law is associated of legal transplants The Vietnamese scholar should have a dialectic view about legal transplant that can not merely the borrowing of legal rules, reception of law must be combined with the mode of thought, methods of lawmaking( codes as opposed to cases decided by the judiciary), foreign iníluences and the unique conđitions of Vietnamese legal culture must be careíully taken into consideration 4.2 Main aspects relating to the ỉníluence of civil law system on Vietnamese legal system up to now To date the members of the socialist camp are those countries which formerly belonged to Romano - Germanic family ( civil law family ) , and they have preserved some o f the characteristics o f civil law Thus the legal rule is still 101 Micheal Bogdan, supra note 33, p.31 39 conceived in the form of a general rule of conduct; and the division of ỉaw and legal terminology have also remained 4.2.1 In the area of Civil law and Commercial law The area o f civil and commercial law in Vietnam has shown very clear the iníluence o f civil law system on Vietnamese legal system As Rene David has wrote: Like the íbrmer socialist countries, The Vietnamese legal system has been on the way o f reforming In the time of Central- planned mechanism the area of civil law and commercial law had been not paid much attention, but when the market economy gradually establish in Vietnam, the íìeld o f civil law and commercial law has been paid much attention The question of how can create a good legal system for transferring the structure of economy is the main task for law maker in Vietnam - In the area of Civil law: In the time o f French colony, the reception o f civil law was very clear There were three old cịvil codes in different regions (Civil code o f 1883, Civil code of 1931, Civil code of 1936) adopted in Vietnam those contained not only provisions but also the structure similar to French civil code o f 1804 But the reception o f civil law in the colonial time was not very successíul, that was involuntary reception That means the reception of law made by French colony Hovvever, the reception of French civil law made great impact on the change of traditional feudal law in Vietnam French civil code reílected the ideas of the enlightenment and the value of democracy of French revolution For me, I think the iníluence o f French civil law had created the foundation for the development of Vietnamese civil law in the modern time Accorđing to Dr Nguyen Viet Ty the term “civil law” just appeared Vietnamese legal system only when French civil law was imported intoVietnam ,102 The great value come from the oỉd I;rench civil code in Vietnam that was very good mean to import civil law principles based on Roman law into Vietnamese legal culture Owe to the iníluence o f French civil law, there were the distinction between the area of civil law and criminal law, the modern civil legal terms were introduced in Vietnam To day, Vietnamese legal scholar sometimes refers to thẹ legal term in the old civil code in Vietnam in their comment o f present civil law The language and concepts o f Vietnamese civil law today are clear and familiar to French civil law and other civil law country because of their aữinities with the legal institution that were introduced during the colonial period and the widespread of civil law legal system in Asea The current 1995 Vietnamese Civil code of the Socialist republic of Vietnam is the very important codiữcation for Vietnam in the time o f Doi moi: The 1995 Vietnamese civil cođe is a legal tool to enhance civil transaction and create a favourable environment for the socio- economic development of the country Inheriting and developing the Vietnamese Civil law up date and particularizing the 1992 constitution The 1995 Civil code occupies an important position in the country legal system It create legal base for íìirthering the liberalization of all product activities, strengthening democracy, and insuring social equality and civil right of human being ,103 m Nguyen Viet Ty, PhD Thè role of cilvil law and commercial law in market economy, Hanoi law University, p 253 103 Civil code o f the Socialist Republic of Vietnam, National political publisher, p 318 40 The very clear evident to prove the similarities of the 1995 civil code to civil law in some countries belong to civil system is the structure, and the meaning of principles, legal terms Its is wide accepted that Vietnamese civil law today shares many similarities with French Civil law, German civil law, and Japanese civiỉ law During the process for draíting the 1995 civil code, Vietnam had received the helping, and consultation from civil law experts o f France, German, and Japanese It will take too much time make the comparison all articles o f Vietnamese civil code with Japanese, and French civil code Due to the limit of the thesis, I only íịcus on some articles of Vietnamese civil code to find out the iníluence of civil law tradition on the area of civil law in Vietnam First, The Vietnamese civil code bases on the principle of respecting human rights Article 5104 provides principles of respect for and protection of personal rights We can also see this principle come from the French Civil code, German Civil code, and Japanese Civil code In civil relation parties are equal; they shall not invoke the differences in nationalities, sex, social status, economic situation, belief, regional, level of education and /or profession as reasons for discriminatory treatment ( Art 8) Second, The Vietnamese civil code, the principle o f ‘freedom of contract’ prescribed in Art “the right to free undertaking and agreement in conformity with the provisions o f law in the establishment of civil right and obligation shall be guarantee by law” In Roman law, in pre- codiíication times, the contracting parties’ consensus was the Central and decisive element o f the law of contract This was also called the principle o f ‘freedom of contract’ This principle is rooted in French Civil code, under the ideology o f the French civil code, an agreement is binding because, and in so far as, the paries have consensus to it, thus the obligations created by the parties could be modiíied, altered and rejected by them105 Third, the term concerning the definition of property in Vietnamese Civil code is similar French Civil code According to Art 181 of Vietnamese civil code, there are two types of property (movable property and immovable property) Art 516 o f French code ‘ All property is movable or immovable’ Both Vietnamese and French civil code, immovable property is defined as those which is cannot be moved, such as land and building are immovable by their nature harvest standing by root and their fruit of tree not jet gathered are also immovable The way to deíine the type of property in civil code of civil tradition by way o f deduction which is prescribed in the Code On the contrary to common law, the way to distinguish type o f property based on legal precedent - In the area of Commercial law The commercial law appeared íìrst in Europe from the localism and relative economic stagnation of the Middle Ages with the rises of towns, the birth of market, fair and banks, the rapid expansion of marine time and overland trade and eventual development of large Aourishing commercial centres there appear the need for a body of law to govern business transactỉons106 In the beginning 10,1 Article of Vietnamese civil code of 1995 “ Personal rights in civil relations provided for by lau shall be respect and shall be protected by law” 105 Peter de Cruz, supra note 60, p.308 105 Peter de Cruz, supra note 7, p.26 41 of nineteenth century, as well as the movement of codifícation of civil law, French commercial code appeared 1804 In Vietnam in the feudal time there was no commercial law, because Vietnam was agricultural country there no condition for the appear of commercial law in Vietnam until the middle ages, even when commercial transaction ílourished in many centre in Europe, law of merchant became very popular in Europe, but In Vietnam the concept o f commerciaỉ had yet to be known Commercial law was imported in Vietnam by French Colony When French merchants were doing business Vietnam, they established commercial transaction with Chinese merchants and some small number o f Vietnamese merchants All Vietnam commercial law in the time of Erench colony was imported from French commercial law Vietnamese commercial law remained the its iníluence until 1975 (only in the South) I07 The 1972 commercial code of Republic of Vietnam was deeply iníluenced by French Commercial Code of 1807 In the time o f planned economy, Vietnam had no commercial law ìer Doimoi (renovation) commercial law seemed to be indispensable law for commercial transactions in market economy The current commercial law emerged in 1997 at the right time when the centrally - planned economy has been shifted to the socialist- oriented market economy This is the first commercial law document of the SRP of Vietnam So far, Looking upon the provision of commercial law, we can And the iníluences of French commercial law, This can be explained by two main reasons First, the 1997 Vietnamese commercial law was composed by a group of draíler who, were educated by French legal education, made reference to old commercial law in the time of French Colony, and French commercial law today Second, during process of draữing commercial law, Vietnam had gained so many opinions from French expert o f commercial law Even so far, French Commercial code 1807 has thought to be the unsueeesslùl codiũcation of France to compare with Prench civil code 1804, In France sometimes legal scholar called French commercial code as ‘ Code bouíiquers' 7ỡ5However, French commercial code 1807 has played considerable role for the development of Vietnamese commercial from the time of French domination up to now The very clear evident to show the relation between Vietnamese commercial law and French commercial law, is embodied in the concept o f what is the commercial activities, how can be dìned the merchant The term commercial activities according to this Commercial law are too narrow It is narrow because the term “Commercial “explained in commercial law has just covered only 14 commercial activities 109 Further more there is also the inconsistence between Commercial code and Vietnamese Civil code of 1995 in the provision concerning about the contract, Facing with the demand of the raarket economy in the integration and globalization, the concept of commercial term in commercial law must be vvidened in order to harmonize with the international commercial law May be the best to get thè solution is to make reference to the commercial of some commercial law codes o f civil law countries and the model law of Uncitral For me it is very diữicult to import the form of 107 From 1954, French colony left Vietnam, then American took place in the South of Vietnam The economy in the South was very open, real capitalism so that there were conditions for the existence of Commercial law In the north, the govemment of people republic abolished commercial law, because it did not feet for building capitalism 108 Le Tai Trien, Luat thuong mai Viet Nam dan giai - book 1, Kim lai an quan, sai gon 1972 109 see Vietnamese commercial law of 1997 42 commercial law of common law system into Vietnam In American, the model of commercial law as ucc which seem to be different from the way of codifícation in Civil law countries - The substantive commercial contract law (prescribed in current Commercial law) is not consistent with the commercial facts in some aspects such as the dìnition of international contract for the sale of good in Vietnamese commercial law so that Vietnamese contract law in the area of commercial law need to be harmonized with international commercial law The globalisation of international trade and íỉnance over the past 20 years has led to an upsurge in conventions on diíĩerent aspects o f private law governing commercial transactions Among these may be mentioned the 1980 Vienna Convention on Contracts for the international sale of Goods( SIGS), the 1988 UNIDROIT Convention on International Financial Leasing and international Factoring n0 Recently UNIDROIT have introduced a new edition o f the Unidroit principles of international commercial contract Vietnam has imported the concept of commercial activities from Uncitral model law 4.2.2 Legal education in Vietnam relating to legal education in some civil law countries The legal education in Vietnam is very interesting issue, legal education has been paid much attention parallel with legal rịrm in Vietnam to day111 The question is, How can we identiíỳ legal education in Vietnam, and how legal education in Vietnam relating to legal education of civil law tradition The neighbour country- China has the same situation in law’s rịrm as Vietnam, but Chinese legal system to some extend is more development than Victnam Legal education is an indispensable link in the Chinese legal system, particularly when China has pledged to govern the country by the rule of law Legal education is a necessary step for people working within the legal profession, training lawyers, judges, procurators, and other judicial personnel Legal education, vvithin the context of 21 st Century China, has two main missions: íìrst, facilitating the country's Science and education (kejiao xingguo) drive and íacilitating the rnle o f law in the country (yifa zhiguo) Without the development o f legal education, the rule of law would be no more than an empty word 112 The legal system o f countries belong to civil law system in Europe have very long traditional legal education From the 12 century in Europe, the legal education became popular University of Bologna was known as the íirst "°Roy Goode, Contract and Commercial law: The logic and Limits of Harmonization,http//www.ejcl.org/74/art74-l.PDF.p2 111 Legal education was critically important for Vietnam during the era of reform, dating back to 1986 The market-oriented economic development has brought about a high degree of demand for sophisticated legal services To meet this new demand, the Vietnamese govemment underscored the importance of having legal workers, particularly practicing lavvyers, to provide a pool of legal experts who 'know law, know economics and know íịreign languages A target was set to have more 3.500 judges by 2010 to supplement for the shortage of both the quality and the number of the judges in Vietnam 112 Zou Keyuan,” Special Feature Perspectives on Contemporary Legal Developments in Chinese Law” ,7 Sing J Int'l & Comp L 159, 2003- Singapore Joum al o f International and Comparative Law 43 University which had the ílinction to educate Roman law To day, although the civil law tradition and the common law tradition has been moving closer each other, but the types of legal education of civil law countries have remained distinctive characteristics in comparing with legal education in common law countries Legal education reílects the legal tradition and legal culture of each legal system Rene David proposes legal education as One o f two criteria to grouping the legal systems in to the íamilies of law So far, the question of how Vietnamese legal system can be subsumed in what families of law ? Civil law or Socialist law This question is still open, and interesting issue for Vietnamese legal scholar For me, legal professional point of view, I think legal education in Vietnam shares the similarities with legal education in some civil law countries Legal education have been rịrmed to shift gradually from the traditional Soviet to civil law Iegal education I to some extend not agree with Carol V Rose’s view that ‘legal education in Vietnam remains tethered to abstract socialist political principles, under which law is considered to be a purely political tool to shape the people and to build a new society The basic curriculum taught in Vietnamese law schools, for example, includes "Law and State," which focuses on critiques of feudalism, as well as courses on Marxism/Leninism, political Science, and history Formal legal subjects, such as constitutional law, administrative law, civil procedure, and criminal procedure are not introduced until half-way through the second year of studies’.113 The way o f teaching law in law university The similarrity of the way in legal education between Civil law tradition and Vietnam is appeared in the manner in which the student is initiated into the study of law The student o f Civil law and is provided the outset o f with a systematic overview of the frame work of the entire legal system The introductory text ( a treaties not a casebook ) may even ineliidẽ a diagram depicting “the law” as a tree In Vietnam the phylosophy of law is very important to be teached in the first and second year in the university Law teaching is directed principally exposition o f the basic principle concepts of the legal system rather than to explaining to student how a problem is solved in practice Vietnamese law student is not familiar with the practical way of education in common law One the greatest diíĩerent between legal education in common law and civil law systems appears in the manner in which the studẹnt is initiated into study o f law.U4 While the American student is typically spends the first days of law school reading cases and having her or his attention directed over and over again to their precise facts, a student of civil law is provided at the outset with systematic overview o f the framework of the entire legal system.115 In Vietnam to day, it seems to me that legal education in Law faculty and law University has not escaped the methods of civil law education are a natural outgrovvth of its principles Teaching materials ordinarily consist o f systematic treatise and, where appropriate, an annotated code Typically the professor 113 Carol V Rose, supra note 73 114 as tra d itio n a l w a y in c o m m o n law Such as in England legal education early times was in the hand of the bar On the continent, from the time of Roman law revival it was the province of universities, 115 Mary A Glendon, M.W Gordon, P.G Carozza, supra note 7, p.76 44 lectures rather than engaging in discussion with class In Vietnam theoretical method occupies much proportion of time in teaching law than teaching law than in other civil law countries We can hardly find case law and fact in the text books, even textbook for Criminal law, civil law I think the legal education teaching method in Vietnam is very traditional, i.e., the most common pedagogical technique is lecturing, which is now criticised as being too conservative since it does not promote healthy scepticism, intellectual curiosity and creativity To remedy the vveakness resulting from traditional teaching methods, some innovative Socratic methods including clinical education and moot court training have been recently introduced to Vietnam Vietnam should learn experiences from the renovation of textbook in law of some European ưniversity, text book consist not only systematic treatise but also contain case law rising from the fact Some Western lawyers interviewed seemed to assume that if Vietnam is to compete in the regional or global economic environment, it must train lawyers as technocrats "If the Vietnamese legal system doesn't value skills in such areas as secured interests and documentation acceptable to lenders," said one U.S lawyer, "then Vietnam won't get access to world Capital markets." Similar sentiments were expressed by young, Western-trained Vietnamese lawyers "The curriculum at the Vietnamese law schools focuses too much on academic trends and not enough on practice," said a Vietnamese graduate of a prestigious U.S law school "The Vietnamese law schools must rewrite all o f the textbooks to reílect a practice orientation."116 Legal Profession in Vietnam: The legal profession is composed not only of lawyers, judges and procurators, but also of legal educators such as law professors, notaries, and auxiliary staff fflêfflbêrs in lêgal profession such as law elerks and legal secretaries Thus, the legal profession contains three types o f legal personnel: practicing, academic and auxiliary It is commonly understood that because o f the close relationship between legal education and the legal profession, the latter should guide the development o f the former, its training goals and main objectives It should also play an important role in the content and methodology employed in teaching the law This can be seen in the practices of other countries with a well-developed legal system Due to the limitation o f the thesis, I just mention to lawyer and judge Like legal profession of European civil law, undergraduate legal education is not meant to produce lawyer or judges who are ready to embark immediately on the practice o f law In order to become lawyers or judges, law undergraduate must attend some special course to get certiíicates and they have to spend time for apprenticeship in a bar for becoming lawyer or in court for becoming judges For Iawyer: In Vietnam the model in eđucating lawyer is similar to French Model In the colonial time, The French also trained a great many Vietnamese lawyers in the French language and legal system at the French-sponsored Indochina Law School in Hanoi between 1920 and 1950 Many o f these lavvyers remained in Vietnam after reunification, and today there is a small contingent of senior lawyers and scholars well versed in the French legal system and culture 116 Carol V Rose, s u p r a n o te 73 45 Vestiges of the French legal system also persist in Vietnam The íịrmal hierarchy of statutory laws in Vietnam, for example, mirrors that used in the French legal hierarchy, as does Vietnam's reliance on a civil code " A University law degree is a necessary precondition for any legal career in France A person who after his or her university studies at law faculty, which normally take four years to complete, desires to pursue a judicial career can apply to be accepted into judicial education program which is concentrated to o n c p a rtic u la r sch o o l, E c o le nationale d e la m a g is tr a tu r e in B o rd e a u x 118 In common law countries, example in America, the law school education is a three-year graduate program, which requires a previous university degree( e.g Bachelor of Arts, B.A.).The law degree is nowadays called Juris Doctor(JD) U9 If an Undergraduated law student in American want to be lawyer, he or she does not have to study special programme in legal education institution, the only way he or she have to is taking the exam in Bar.( Passing a bar is prerequisite for Juris Doctor become a lawyer) In Vietnam, according to law120, if the person who has graduated from law school, wants to be a lawyer, Firstly, he or she have to be trained a special course ( called lawyer training program) at the only schooỉ for training legal profession in Hanoi This is also the school for training judges The course for training lawyer last months, at the end of the course students have to take final exam to get certiíicate Secondly, she or he have to file a application to a Bar association(each province and centrally- administered city can establish a bar association, the bar association is a professional organization of lawyers) The application must be approved by general conference of the bar association And the apprenticeship is required for at least year in the bar In Vietnam, there is no any geographical restriction on lawyer’s activities As the matter of fact, to be admitted a member of Bar association in Province is easier than in commercial eity, §0 many under graduated law student joined in the Bar o f mountainous province such as Hoa Binh , after become a lawyer, they go back to Hanoi or Ho Chi Minh City to work as lavvyer By the end of 1995, there were 51 bar associations and 700 lawyers The smallest bar association has three to five lawyers and the largest one has 106 lawyers These íigures can be said to be too modest compared with those in many other regional countries In Vietnam, There is also one kind of legal profession which is called the legal consultancy of Consulting lawyers who is not a member of a bar The Legal consultant works in Law firm Since 1995, the Government of Vietnam enacted Decree 42/Cp on regulation concerning the legal consultancy of foreign lawyers’ Organization in Vietnam With these regulation, for the fưst time in Vietnamese history, foreign lawyer are allovved to come to Vietnam practice legal consultancy Up until now, laws on lawyers have provided for mandatory professional insurance for only foreign lawyers who practice in Vietnam Vietnamese lawyer are not required to buy this types o f insurance This is not in coníormity with the practice in the region and other parts of the world -Judges Model for training judge in Vietnam to day show the similarity to the model o f civil law countries in the main point is in some countries, such as 117 Carol V Rose, supra note 73 118 Micheal Bogdan, supra note 33, p 157 119 Ibid , p.157 120 Ordinance on the organization of Vietnamese lawyer 2001 46 France, Spain, and Japan, there are special school for training judges The special school for training judges is located in Hanoi, this is the only school of the country In the past there was school for training judicial oíĩicer Most of Vietnamese judges in the time of planned - economy were train in this old school This model may be borrowed from the former Soviet model From 1998 the old school was abolished, replaced with special school for training judges In the renovation time, Vietnam has paid attention not only to rịrming the legal system, but also to raising the quality of the judges Vietnam has learned experiences form Civil countries in establishing the system o f training judges It is widely accepted that the way to become a judge in Civil law countries is diíĩerent from Common law countries where judges are drawn from the practicing bar and less írequently trom government Service or the teaching profession There is in the United State no career judiciary like that found in many other countries, and there is no prescribed route for the young law graduate who aspired to become a judge- no apprenticeship that must be serve, no Service must be entered 121 In France, the first step to becoming the judge is to pass annual competitive examination for which student prepare by taking special program in their last year of law studies Successíul candidates then must undergo 28 month of íurther training consisting of a period o f formal study at the national school of the judiciary in Bordeaux, follow by the required apprenticeship Vietnam has borrowed the way to train a future judge from France But there is a slight diíĩerence in comparing with the step for training âiture judge in France Vietnamese law graduate desires to become a judge the first step is he must be recruited as offìcial judicial oữicer The special school for training judge in Hanoi only admit the application of judicial oữìcer who has at least two years working in the court at different level as secretary of the court ìer passing the entrance of special school in Hanoi, must undergo 24 month of §tudying law in this school The judicial apprenticeship is required variedly from district judge to the judge in the Supreme Court, (8 year for Judge at supreme court, year for judge at provincial court, year for judge at district court level) The Vietnamese Judged was appointed by State presidént for tenure o f years The judge will be reappointed when the tenure is over Through the reappointment process, the local political establishment has leverage to indirectly influence judges At the end of the five-year appointment, each judge is required to submit a petition for re-employment A committee, including representatives of various govemment departments, the People's Council, and the People's Court, reviews the petitions and makes recommendations to the People's Council, which then reappoints judges for an additional five year term122 As in most other decision making bodies in Vietnam, the Reappointment Committee runs by consensus 121 Farns Worth An introduction to the legal system of the us, 148 ,22Brian J.M Quinn” Legal Reíorm and Its Context in Vietnam” 15 Colum J Asian L 219, http://web2.westlaw.com/search/default.wl?RS=WLW4.10&VR=2.0&FN=i_top&SV=Split&MT =WorldJourna!s&RP=%2fsearch%2fdefault.wl&DB=WORLD-JLR 47 Conclusion Today the tendency of integration and globalization has been pervading through all aspects of the life in societies and the development o f Vietnamese legal system can not escape this tendency The issue of how to identiíy the relationship between Vietnamese legal system and the Civil law system is very crucial for Vietnamese scholar to think about the trend o f the development of Vietnamese legal system in the movement o f law reform in Vietnam The iníluence of Civil law system traced back to the time if French domination in Vietnam Bịre French colony mled over Vietnam, the Vietnamese legal system was mere feudal system in which contained the characteristics of Coníucianism, Buddhism, Legalism and Chinese iníluence There was no relationship between Vietnamese feudal legal culture and western legal culture There were no distinction between civil law and criminal law in Vietnamese legal system The old codification of Vietnamese covered both criminal law and civil law Within more than eighty years under French colonial domination (from 1862-1945), the homogeneity of Vietnamese feudal legal was broken by the diíĩiision o f French law French laws were imported into Vietnamese legal system French civil code 1804 aíTưming the ideas of Erench revolution was introduced in Vietnam Three Vietnamese civil codes as well as commercial code in the colonial time were the evidence for the iníluence o f civil legal system on Vietnam Furthermore, the organization of court system under colonial regime was the ađoption of French judicial model The iníluence o f civil law by the diíĩusion of French law into Vietnam led to distinction between civil law and criminal law in Vietnamese legal system Legal terminology of commercial law, GĨYÌl law, the legal ideology and legal institution o f civil Iaw country were inĩiltrated into Vietnamese legal culture through French colony But the iníluence of French law on Vietnamese legal system was not successíul as Prench colony had expected in their policy d ’assimilaíion The traditional Vietnamese legal culture to some extend resisted with the western legal culture Prench colony had imposed their laws in Vietnam, instead of voluntary reception of law Although the French colonial regime lasted until 1945 but to some degrees, in some area o f private law had remained From 1954, Vietnamese legal system has been gradually iníluenced by Soviet law Due to the political ideology and the economic regime of planned economy, the área o f private law was not paid much attention The characteristic of socialist legal system rooted in Vietnamese legal system as the result of building socialism Vietnam's 'open door' policy in 1986 began a gradual shift from Soviet to Western legal sources.123 Legal reforms initially sought to attract íbreign investment as well as in order to create legal base for market economy The rapid changes occurring in Vietnam's economy put signiíicant strains on Vietnam's socialist legal system Since the beginning o f economic rịrm, the legal system has been in constant flux The direction o f legislative eíĩorts and changes in the system appears constant: increasing transparency, reduction of arbitrariness and increased ỉ 23 ~John Gillespie, supra note 63 48 predictability in the legal system.124 Form the comparative point of view, I want to formulate in this thesis that today Vietnamese legal system has similarities to civil law system The question of how to identiíỳ Vietnamese legal system today is very controversial to Vietnamese scholars For me I think Vietnamese legal system can be identiíý as a mixed legal system - between socialist legal system and Civil legal system The law reform is inevitable for Vietnam in vvhich associates which the issue of legal transplants As Watson’s argument(which it should be remember was initially directed as much against leading authors in comparative law as at sociologists) is that a large proportion of law in any society is the result of legal transplant, transmitted by lawyers, and owing its form and contend to its origins in other time and places.125 It is essential to appreciate the social and even more the political context o f Vietnam in which imported law from civil law is shaped in order to avoid and rẹịection of legal transplants Vietnamese legal scholars should keep in their mind that legal transplants can be merely the borrowing of legal rules, but in order to be successíully embedded in a new jurisdiction and to thrive, there has to be suitably receptive environment O f course, the mode of thought, methods of law making (codes as opposed to cases decided by the judiciary), íbreign iníluences and the unique cultural condition of the host country must be careíully entered into the melting pot of comparison In this sense, thereíore, law is always more than simple rules but constitutes a culture sui generic which interacts with local conditions.126 The trend for developing Vietnamese legal system will be optimistic in globalization The world is coming closer together, and a global village will one day be a reality, at least in the convergence o f certain Central ideas and values, then Ịt become even more important ío perceive not just the difference but also the similarities between jurisdictions Reformer then have to decide what the think can be adapted, the think can never change, and perhaps, most of all, the think they would like to change The task of law reformer is thus to decide how best to utilize the comparative methodology to recognize and select transíerable, ílexible ideas with a proven pedigree for dispute resolution to deal with common problems and situations which would adapt to fast- changing the world The adaptation and integration of legal transplants into various common law and civil law jurisdiction may well play a vital role in expediting law reform.127 124 Brian J.M Quinn, supra n o tel2 125 David Nelken, Legal transplants and Beyond: of Disciplines and Metaphors, in Andrew Harding and Esin Orucu, Comparative law in the 21st Century ,Hague 2002, Kluvver Acadamic Publishers, p 25 126 Peter de Cruz, Legal transplants: Principle and Pragmatism in Comparative Family law, in Andre\v Harding and Esin Orucu, Comparative law in the 21st Century ,Hague 2002, Kluwer Acadamic Poblishers, p l 18 127 Ibid., pl 18 49 Bibliography < Author > < Title, edition, etc > Books M ikazuki Akira, The legal structure of Japanese law after being modernized since 1868, Comparision of law of contract between Viet nam and Japan, Vietnam Ministry o f Justice 2000, ( Vietnamese version) Micheal Bogdan, Comparative law, Kluwer Norstedts Juridik Tano, Peter de Cruz, Comparative in a changing word (second edition), 1999 Peter de Cruz, A Modern Approach to Comparative law, Kluwer Law and Taxation Publishers, 1993 David and Brieley, Mạịor legal system in the world , The Third edition, (Steven &Sons Ltd,1985), Mary.A Glendon, M 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Distrỉbut? ?on of the civil law The map of civil law system depend so much the distribution of the civil law When some one says the civil law system appear ạll over the world This conclusion, according... criminal law not in civil law in the legal system of Vietnamese legal system at feudal time, reílected the trend of law in the East In the civil law tradition, the first codification of Roman law