“THINKING LIKE A LAWYER” IS ONE LAWYER’S TOOL
“Thinking like a lawyer” has its purpose when applying real facts into law regulations then makes law regulations adjusting the events. When law makers draft law, they fix the rules which control life (or real facts); however, real life is always varied and has so many aspects which the law cannot predict, so law regulations cannot always response to life, especially when law regulations are violated in real life. “Thinking like a lawyer” will solve this problem. So, before we find out about that, we also learn more about law to find out the “bridge” between law and life.
I. Explore the law “secret”
The law’s main purpose is to keep social order in one political way which make people live in a comfortable life. People need the peace of mind to live and work for today, worry for tomorrow and build up their assets to use or leave their children to inherit. Their needs must be protected. And it is the law’ job. In order to do it, there is one good way or technique and this technique is used by law makers when drafting laws.
For someone, it is still a secret; because you guys do not pay attention to it even it is always there! But your experienced lawyers, they know it very well just like they know their hands.
When reading legal documents, we see they often start with regulation scope and application entities articles. Scope is matters, events, job’ tasks, etc which the law adjusts; subject is person who implements these job’ tasks and law also adjusts it too. This is two techniques that law uses. Know them well, you will practice law easily. And, this is “knowing law”.
A. Fixed responsibilities
People, flowers pot, dog or car, etc all can hurt other people. So, law has to set up responsibility for each one. A has to compensate to B when making B hurt or damage; and the purpose is to set up the order which is violated. For example, you are B who is sweeping in front of your door, the wind blows and makes neighbor’ flowers pot (A’ pot) falling to your head. You were bleed and headache. Before that, you are ok and not feeling hurt. This is the order. When the flowers pot fell to your head, the order was violated. So Mr. A has to compensate to Mr. B to reorder this. A’ responsibilities are called civil responsibilities. Then you tell me “I’ve already known it”. I just say it here for you to recall what is responsibility, what is its purpose and I hope you will give up the way of thinking that “responsibility comes first in compare with law” when talking about civil responsibility.
In this life, there is so many orders and they are in different areas. For example, business order, renting a house, working, borrowing money, using phone, investing, environment, etc. Law considers it as adjusted behavior; but it is one deal in daily life. And we will call it like that. On the books, deal is considered as social relationship, legal correlation, etc. Three but one. When discussing with customer, you have to get out of the book to make them easily to understand. If you cannot get out of the book, then you do not understand law. You will be afraid of wrong thing.
In each deal, there is at least two people participating and one person can cause damages to the other one. To make deal going well, achieve the parties’ goal, law stipulates the deal contents and each party has to do something. When one party does thing, the other party will get benefit. So, implementing party has responsibility, benefited party has rights; both parties have specific rights and obligations. Party who does not implement their obligations will cause other party damages. For example, in purchase contract, the buyer does not pay then the seller will be caused damages. And in real life, you know what the seller will do. This is the way law transforms to real life, you need to remember this “couple” because it is the first step to apply law.
Law sets up adjusted subject, means that law points out the person who implements that deal. From that, in the real life, every person has a “capacity”. And in each capacity, one person will has responsibilities and rights. You should remember, one’s responsibility makes other’ right. Identifying someone capacity is a law’s technique.
The noun “capacity” in law field is very different from the word “capacity” in moral life. The first one is the position of each person in one deal; the second one is the way people act or someone’s behavior. “Capacity” in moral life shows that somebody is good or not. For instance, you say “he has capacity”. However, the same sentence in law field means that he is in one position and has specific rights and obligations.
When practicing, we have to find the capacity of customers in related deal to identify their rights and obligations. That is their “lawful benefits” which they hire you to protect. You use the noun “capacity” to easily integrate with your customer in your mind.
B. Regulating rules
Transactions come from two sources. Firstly, it is natural living of people in society like purchase, construction, giving birth, etc. Secondly, it is set up by law because its necessary for social living but it has never existed or just occurred in the real life. For example, before 1987, there is no foreign investor in Vietnam; after that, the General Assembly promulgated Law on foreign investment in Vietnam and created jointing venture company. Then, law instituted Security market and then real estate transaction, etc.
About natural living which had from these old days in social life, law “adjusts” them; means that law identified them by the way of finding out what they are, how they implement, what related parties do, how their responsibility, etc. One example is our Civil Code 1995.
About transactions which have not shown up yet or just shown up in social life, law invented them then adjusted them like available acts. However, in this case, law often changes easily to be suitable with life, or to response new conditions.
Law identifies or sets up transactions according to the lives’ demands; but legal specialists classify them into law fields, regulations systems to help student easily to learn.
To conclude, the two law techniques are used to create transactions and identify the capacity of person who implements that transaction. And, that is word meanings.
C. Law regulations in real life
In daily life, every person has a lot of capacities. For example, at home, Mr. A is a son (Married Law – blood relationship); at school, Mr. A is a teacher, principal (educational law- administrative relation); at the market, Mr. A is a seller (civil code- purchase relation). Law calls them parties but when practicing, we have to change party to “capacity”. For example, see that the buyer (party A) in purchase contract, you have to change them into purchaser. So, you have found out the law secret. Of course, you may say: “I call you the buyer, seller; you call purchaser, what is the different of that?”. Nothing is different, of course, but if there are many other parties, the word “party” will confuse you in your mind and you cannot realize immediately each person’ rights and obligations. Lawyer has to think it clearly.
In the falling- flowers pot example, you are the house owner, bought that flowers pot and put it on the balcony afternoon, at night it fell down to your neighbor’ head. To talk in the position of that flowers pot, you are pot owner. You are no longer house owner. If you are pot owner, you have to compensate your neighbor. If you are house owner, you may say “I have nothing to do with that flower pot”. If you are pot owner, you are the person who caused damage and you have to compensate to the victim. You see that, just in this simple situation, you have three capacities; each one makes your different rights and obligations. Your compensation is stipulated in civil Code about compensation for damages outside contract. French Law calls it “faute”. England’s Law and American Law call it tort or equity. “Capacity” is the most disturbing. If you can solve it then you solve the tangled rope. When you solve the tangled rope, you solve one dispute.
Social relationship or legal correlation creates capacity; capacity identifies rights and obligations. Rights come along with responsibilities. This is law secret. When reviewing customer’ contracts, you will change: commitment transactions into cases – parties into person’ capacity. Knowing the capacity, you will protect your client because you know what rights he has and with whom. Capacity helps us to widely open the problem.
However, when looking at one transaction, we also have to clarify its law field: Civil, administrative or criminal law. Normally, civil obligations are forced to compensate by money if they are violated; administrative obligations are compensated by money or prohibited to operate; criminal obligations are compensated by money, prison sentence or both, according to the violation. The sentence “I commit that I will take all responsibilities” is one of these above obligations actually.
To be continued.
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