The first section of this paper will examine the basic principles of the Act on Marriage and Family in Vietnam and their impact on marital property law. It will then go on to the fundamental principles of Vietnam's Civil Code regarding the relationship between civil and family law aspects. Hungary's Civil Code contains Book 4 on Family law which addresses principles similar to Vietnam counterpart. Comparing these Hungarian regulations will enhance legislative effectiveness in the family sphere to Vietnam.
Vietnamese history underwent invasions from China, France, and the United States[1], respectively, so their influences can be found in several branches of laws of the country. During the development, basic principles of family law have been introduced by different versions of the Acts on Marriage and Family that have been affected by different rules of law being from Eastern Confucianism to Western progressive thought. Besides this, there are general principles provided by the Civil Code, which are especially important since they serve as fundamental guidelines for the relevant relations, including those concerning family and marriage matters. The analyses will begin with the introducing to the relationship between the Civil Code in general and the law on family and marriage matters. In this paper, however, the author will point out to which extent such principles are applied to the specific issue of matrimonial property. Lastly, some comparative analyses will also be conducted so that European law and the relevant law of Hungary will be mentioned in appropriate sessions.
The fundamental principles of family law may consider in three main periods as follow: under the French colonization, before 1945 under the law of Democratic Republic of Vietnam (1945-1975) and after the Reunification day in 1975 to present. Besides, family law has a close relationship with civil law in general. It is worth noting that under the Vietnamese legal system, the laws were not divided into public and private law like some formers European countries in the 19th century. The term private law first appeared in Europe in 1985[2], referring to the civil legal system, which is different from the common law system that exists in the UK and other countries in the Commonwealth. The legal system in Viet-
- 131/132 -
nam heavily relies on statutory laws, including the Constitution and other legal documents in several fields of civil law, criminal law, and administrative law. Within the system of law on civil matters, there are specific laws to deal with certain aspects such as marriage, property, labour, trade, and civil relations involving foreign elements.
In the field of civil law, since the country's reunification in 1975, Vietnam National Assembly has promulgated the Civil Code of 1995[3], 2005[4] and 2015[5] respectively establish the skeleton for civil law in the country. Within the Civil Code of 1995 or 2005, however, there is no provision to define itself as the fundamental law of the civil law. The matter is clearer in the newest Civil Code of 2015. According to Article 4 of the 2015 Civil Code, it is indicated that the Code plays as the foundation and general law governing civil, commercial, marriage and labour relations between individuals and legal entities basing on the principles of free will, voluntary, equality and self-responsibility among participants. Besides this, the Code was supported by several laws concerning specific matters of civil relations such as the Marriage and Family Act of 2014[6], the Commercial Act 2005[7], the Labour Code 2019[8]. However, to matters that are not covered by such specific laws, the general rules provided by the Civil Code of 2015[9] shall be applied. In this manner, the 2015 Civil Code can be seen as the ultimate solution to ensure the consistency, stability and predictability law governing civil relations. As partly mentioned above the current Code introduces five basic principles, including Equality; Freedom, and Voluntary; Goodwill and Honesty; Respect public and private interests; and Self-responsibility.
According to Article 2 of the Vietnamese Civil Code 2015, all civil rights are recognized, respected, protected, and guaranteed under the Constitution, the Civil Code, and Statues. Civil rights may be limited as prescribed in law in exceptional circumstances that due to national defence and security, social safety and order, social ethics, and the community's health.
Because the Civil Code is a general law that applies to civil relations, other specific laws on certain matters of civil relation need to harmonise with this Civil Code. This rule is also true in the field of marriage and family law. In general, the rules on ownership provided in Chapter XIII of the Civil Code of 2015 shall be applied to settle marital property disputes if the relevant rules in the Marriage and Family Act of 2014 are not sufficient. Besides, if there is any conflict in the rules provided by the Code and the specific laws on the same matters, then regulations in the Civil Law shall prevail, except for otherwise provided for by international agree-
- 132/133 -
ments to which the Socialist Republic of Vietnam is a contracting party.
The 2015 Civil Code has made some significant changes to the basic principles in comparison to the 2005 Civil Code, including several specific provisions concerning cases where civil rights are limited, or mutual civil consent is impeded. Unlike the Civil Code of 2005, the 2015 Civil Code does not recognize regulations that respect for ethics, good traditions, and reconciliation as fundamental principles. Instead of that, it presents these contents in chapter XI regarding the relevant principles on establishment and performance of ownership rights and other rights over the property (Article 160 of the 2015 Civil Code). The abrogation of previous cumbersome principles in the Civil Code of 2005 encourages the free movement of civil transactions, but still ensure compliance with Vietnam's legal policies. Such new approach to the basic principles has a significant impact on the legal practice, creating common legal standards and rules, conducting of individuals and legal entities in civil exchanges, and ensuring the transparency of law. Thereby, they minimize the legal abuse and evasion in law, especially in contracts involving foreign elements or recognition and enforcement of arbitral awards. For example, many decisions of domestic and international arbitrators have not been recognized and enforced in Vietnam by the Vietnamese Court due to violating prolix basic principles prescribed in the 2005 Civil Code (as defined in Clause 3, Article 759 of the 2005 Civil Code). As a result, foreign parties tend to choose their national laws as the applied law in contractual relation with Vietnamese parties to prevent the court decisions or arbitral awards from being invalidated by the previous cumbersome principles of the Civil Code. This may result in the loss of the Vietnamese partners when they were not in favour of applying Vietnamese law.
Article 3 (3) of the 2015 Civil Code addresses that each person must establish, exercise/fulfil, or terminate his/ her civil rights or obligations in the principle of goodwill and honesty.
The first principle of goodwill and sincerity is applied when the contracting parties conclude or perform the contract. Besides, if there are effects on the interest of an impartial third party, he/she will be protected in principle. The parties in civil relations must be honest and in good faith to ensure the legitimate rights of the involved parties and the third party (Article 133 of the 2015 Civil Code). The protection of sincere third parties is necessary to promote civil exchanges and promote the integrity of the parties in civil relations. If any party is dishonest, he/she is responsible for compensating for his/her act.
In some cases, the Marriage and Family Act will not protect a third party's deceptive behaviour on the establishing and conducting transactions with a spouse related to bank accounts, securities accounts, and other movable assets. In case of ownership registra-
- 133/134 -
tion, the relevant transaction will be declared as invalid if it falls in the circumstances prescribed by Article 8 of Decree 126/2014/ ND-CP[10]. For example, a third party shall be regarded as not acting in good faith in the following cases:
"1. He/she/it has been provided with information by a spouse under Article 16 of Decree 126/2014/ND-CP but still establishes and makes transactions against such information.
2. The husband and wife have made their agreement on possession, use, and disposition of property available to the public, and a third party has known or must know this agreement but still establishes and makes transactions against such agreement." Besides, Article 16 of Decree 126/2014/ND-CP on information on the agreed matrimonial property regime in transactions with third parties also provides that "In case of applying the agreed matrimonial property regime, when establishing and making a transaction, the spouse(s) shall provide a third party with relevant information. If the spouse(s) fail(s) to perform this obligation, the third party shall be regarded as acting in good faith and have his/her/its interests protected in accordance with the Civil Code." In other words, the law will not protect a dishonest third party in a transaction with spouses having a marital agreement if he/she knowns or must know this agreement but still establishes and makes transactions against such agreement.
The establishment, exercise, and termination of civil rights and obligations must not infringe the national interests, public interests, lawful rights, and interests of other persons (Article 3(4) of the 2015 Civil Code). Lawmakers expect individuals and legal entities to participate in civil law relations to behave appropriately. Ethical conduct guarantees the public order and protects the interests of other entities. For example, Articles 207 to 220 of the 2015 Civil Code introduce several rules concerning the conducts of the co-owners of the property. In marital property, if the couple has common property, the management, use, and disposition of common property must comply with the principles of such general rules on co-ownership.
Besides, Article 3 (1) of the 2015 Civil Code states that "Every person shall be equal in civil relations, may not use any reason for unequal treatment to others, and enjoy the same protection policies of law regarding moral rights and economic rights." In civil relations, all parties are equal, and reasons of differences in ethnicity, gender, social composition, economic circumstances, beliefs, religion, educational level, occupation cannot be used as a defence for any unequal behaviour. Nowadays, equity and equality are also mattering of human rights. In theory, equity is not the same as equality, and at the same time, inequality is not necessarily referred to as inequity. The concept of inequity adopted by the World Health Organization is that of
- 134/135 -
unnecessary, avoidable, and unjust inequalities. The principle of equality is directly associated with human rights, as is the right to equality. While the term of equality is an empirical concept, equity represents an ethical imperative related to the principles of social justice and human rights. All human rights treaties likely enshrine the principle of equality as an obligation for their member countries, while equity is an essential tool giving each person according to their needs.[11]
Each person has right to establish, exercise/fulfill, and terminate his/her civil rights and obligations basing on the freedom and voluntariness to enter into commitments and agreements (Article 3 (2) of the Civil Code 2015). Also, civil law requires a legal agreement to be respected by individuals, legal entities, or other subjects (Article 3 (4) of the Civil Code 2015). Article 3 (5) of the Civil Code 2015 stipulated each person shall be liable for his/her failure to fulfill or the incorrect fulfillment of civil obligations. In civil relations, the parties shall be entirely voluntary so that a party is not entitled to impose, ban, coerce, threaten, or obstruct another party. If one party acts to set, prohibit, force, or prevent another party from the contract, the agreement may be declared invalid, or the aggrieved party may request to terminate the relevant contract. Promoting freedom of agreement, once a transaction is established without mutual consent, it might lead to invalid. If a person violates the voluntary principle, he/she may also bear the criminal or administrative liability.
Regarding this matter, there are significant similarities between the laws of Vietnam and Hungary - an EU member state. For example, the first introductory provisions in Act V of the 2013 Hungarian Civil Code[12] states that "the Civil Code governs the property and personal relations of persons under the principle of interdependence and the principle of equality" (Section 1:1). Also, Sections 1:2 to 1:6, in turn, recognize that all parties involved in civil law relations should abide by the Fundamental Law and the Civil Code based on mutual respect, goodwill, and honesty. If either party violates the Civil Code or infringes the public interests and personal interests participating in civilization, it will be liable before Hungarian Laws. It also addresses the judicial process shall be applied if a person infringes the public attention and personal interests (Section 1:6). In general, the basic principles of Vietnamese and Hungarian Civil Codes are very similar in respect of public and private interest, highly value equality, and complying with the Constitution, the Civil Code, and Statues.
The principles of Vietnamese Acts on marriage and family are different through different historical periods, including the principles under civil laws in the French colonial time, under the laws of North Vietnam's from 1945 to
- 135/136 -
1975, and the principles under the laws after 1975.
In a feudal society that happened before French colonial time, the law seems like a tool to protects or practices full patriarchal right. In the marital sphere, the wife depends on the husband in all aspects, both personal and property relations. The matrimonial property law between husband and wife under the feudal age lasted for thousands of years. This law was influenced by many philosophical, Confucian, and Buddhist ideologies with the concept of prejudice against women.[13] Besides, the laws on marriage and family were of connection with customs, practices, and morals. Many written rules are derived from Vietnamese customs and practices. The most advanced law is the Quoc Trieu Law (known as Hong Duc Code) of the Le Dynasty[14] that uphold the role of the wife in the family. According to this law, the wife has the right to manage part of the family's property. This code stipulated that the composition of the family property includes three types of property as follow: i) The husband's estate which was inherited from the husband's family; ii) the wife's property which was inherited from the wife's family, and iii) their common property during the marriage period. All these assets were put under the management of a husband - the head of the family.
Family law under the feudal period adequately protected the interests of the husband and did not provide full equality between husband and wife in their relationships and property. The 1883 Southern Civil Code recognized polygamy just for the husband and considered adultery only as a reason for divorce if the adulterer was the wife. The husband was the legal representative of the whole family, while the main wife and the concubine wife must get permission from the husband to file a lawsuit via a covenant. Husband had the right to sign any contract relating to the spouses' property, and the wife could only sign an agreement regarding the essential family needs with the husband's consent. (Article 96 of the Northern Civil Code of 1931).
In 1858, French conquered Vietnam and Nguyen dynasty underwent through to concession and eventually surrendered unconditionally. French split Vietnam's territory into three regions which had different laws, including regulations on marriage and family matters. Subsequently, Vietnam had three civil codes in three different areas as follows: The Northern Civil Code of 1931, the Central Civil Code of 1936, the Southern Civil Code of 1883. It is undeniable that the French has copied plenty of provisions in the French Civil Code - the Napoleon Code of 1804[15] to establish these statutes.[16]
- 136/137 -
This principle represented an old traditional value that existed from the feudal regime. According to Confucian thought, children must obey and be respectful to the elders, such as their grandparents and parents. In term of parents' consent, the father's permission was an essential element when his son/daughter get married. Indeed, if the father and mother have different opinions over their son/daughter's marriage, the father's opinion shall prevail. (Article 77-88 The Northern Civil Code).
When getting married, the age of marriage mentioned in the three Civil Codes was quite different from the ancient marriage and family law. For example, both the Hong Duc Code[17] and Gia Long code[18] did not address the age of marriage. According to Article 73 of the Southern Civil Code of 1883, the minimum marriage age is 18 years old for men and 15 years old for women which is the same as in Article 73 the Northern Civil Code and Article 73 the Central Civil Code.
All three civil codes stipulated that the wife must be faithful to their husbands, but it did not require so for the husbands. If the wife violated this obligation, the husband might file for a divorce to his wife. Maintaining a polygamous marriage, Article 92 of the Northern and the Central Civil Code also stipulated that the concubine must respect the main wife.
In general, the Southern Civil Code at that time did not recognize the existence of the matrimonial property regime and the husband enjoyed the polygamous marriage regime who was the owner and manager of the family's property. Therefore, the wife had no right to possess any property and was not allowed to participate in the family's property management.[19] Because the husband was the legal representative of his wife, she can participate in legal proceedings by herself only if she has his consent or permission.
The principle of the patriarchal right was maintained but was less power than that in the past.[20] In this period, the marital property belongs to the husband, and his wife had separate property in limited cases. The marital property that prescribed in the Northern Civil Code of 1931 and the Central Civil Code of 1936 included the common property and marital agreement property. According to the Northern Civil Code, the marriage agreement property shall be applied if the couple had a covenant before marriage (Article 104 of the Northern Civil Code). This agreement, however, must be in writing and comply with fine customs without contrary to interests of husband. In this manner, the husband was still patriarchal and had the right to decide all matrimonial property even
- 137/138 -
though the marital agreement property existed.
Second, the Southern Civil Code of 1883 stated that the husband or the couple could file for divorce. The wife was able to get back some personal belongings and require maintenance from husband depending on his financial situation when they divorced.[21] However, according to Part VI of the Southern Civil Code, the wife could not receive any property and support, if she had a fault[22]. If the husband died, the widow had the right to use and manage the property left by the husband in case she was not entering a second marriage afterwards. However, if the digamy happens, her husband's assets would be handed over to his eldest son. In the case of a polygamous husband, the eldest son of the main wife is the heir.
Finally, the main principle in the marriage law in this period still mainly emphasized the patriarchal right for husband. The husband remained the decisive person and was respected by family members in all aspects of family life, such as property ownership and family representation rights. The polygamy principle also allowed the husband to have the main wife and the concubines. Wife had to be faithful to the husband, and there was a hierarchical order among female spouses in the family. Unlike to feudal time and the Southern Civil Code, a woman was able to claim a divorce and the right to own property according to the Northern Civil Code of 1931 and the Central Civil Code of 1936. This is evidence to prove that family and matrimonial property law seemed more favourable to women's rights in the French colonial time than in the feudal period.
After the success of the August Revolution in 1945, the Northern was liberated and declared independence. Under the leadership of Ho Chi Minh, the Democratic Republic of Vietnam was founded on September 2, 1945, led by the Communist Party, and developed towards a socialist orientation. After the conclusion of the Geneva Agreement in 1954 to terminate the French colony in Indochina, Vietnam was temporarily divided into two parts of the South and the North awaiting a general election for reunification in 1956. The United States, which was an ally of France, replaced French to rule the South under the monarchy of the presidential republic. In the meantime, North Vietnam was issued the first Constitution on November 9, 1945, and Article 1 of the 1946 Constitution affirmed: "All domestic rights belong to the entire Vietnamese people, regardless of race, girl, rich, poor, class and religion."
To realize the provisions of the Constitution and abolish the outdated regulations of the previous period, Ho Chi Minh issued Ordinance No. 97-SL on May 22, 1950, which contained 15 Articles on to marriage and family law matters. Article 2 of Ordinance 97-SL also acknowledged that men and women who had equal rights in all aspects were free to marry at will and did not require the consent of their parents.
- 138/139 -
Subsequently, Ordinance 159-SL was issued on November 17, 1950, to regulate divorce issue.
The 11th session of the first National Assembly passed the 1959 Act on Marriage and Family on December 29, 1995,[23] which consisted of 6 Chapters and 35 Articles. Initially, the Marriage and Family Act of 1959 was just applied in the North. Then it used to the whole territorial Vietnam after the Unification Day on April 30, 1975.
Article 1 of the Law on Marriage and Family in 1959 stipulated that "The State guarantees the full implementation of a free and progressive marriage regime, for monogamy and equality between men and women, to protect the rights of women and children. Thereby, the State desires to build a happy, democratic, and harmonious family, united family institution, to love and help each other to progress." The age of marriage was 18 years old for women and 20 years old for men. Besides, to be eligible to get married, both men and women must not belong to the cases in which marriage was prohibited, such as concerning cousinhood (Article 9) and disease (Article 10). For example, Article 10 of the 1959 Act stipulated that "the one who had impotence, leprosy, venereal diseases, cerebral palsy would be prohibited from marriage."
To eliminate the feudal regime of inequality and discrimination, the 1959 Act noted that "In the family, the couple is equal in all aspects" (Article 12). Regarding the marital property, it stipulated that the spouses had only common property and did not recognise separate property. Article 15 of the 1959 Act stated that "Both husband and wife have equal rights to own, enjoy and use the common property before and after the marriage." This provision, however, did not guarantee the legitimate property rights for the spouse over the prenuptial property or other individual property during the marriage period, for example, private gift or inheritance property because they would be treated as common property. When divorce, both parties had the right to request a divorce in case of irreversible separation of marriage life (Article 26). However, the husband was unable to request a divorce if his wife was pregnant now (Article 27).
On December 29, 1986, the Marriage and Family Act of 1986, which had ten chapters and 57 articles were passed by the 7th National Assembly and took effect from January 3, 1987. The 1986 Act on Marriage and Family recognized that the couple has their common property and their separate property. The common property included "property created by husband and wife, occupational income and other lawful incomes of the couple during the marriage period; property inherited by the couple or jointly" (Article 15). The separate property was the ones acquired before marriage, inherited separately or given separately during the marriage period" (Article 16). At this time, the separate property could be merged into a common property according to the will of the spouse. Although the marital agreement regime was not explicitly prescribed in this law, there was a foundation of agreement between husband and wife on their properties. When divorce, they might compromise over the
- 139/140 -
marital estate. If the two parties had disputes concerning the marital estate, the Court would decide on the couple's marital property. The division of ownership of the divorcees shall follow the following rules: i) each party shall keep his/her personal property; ii) Common property of the couple shall be divided into two parts, taking into consideration of the specific situation of the family and contributions by each party; iii) The rights of the wife and under-age children, and production and professional interests shall be protected in the division of property (Article 42). This provision emphasized the principle to protect women and children in a divorce.
The Marriage and Family Act of 2000, which was enacted on June 9, 2000, and took effect on January 1, 2001, had 13 chapters and 110 articles. This law eliminated the limitation to the right to marry a person who suffered the venereal diseases. However, it prohibited marriages between same-sex couples, the foster parent the adopted child, father-in-law and daughter-in-law, mother-in-law and son-in-law, stepfather and stepchild, and stepmother and stepchild. It continued to recognize the common property and the separate property of the spouses. The 2000 Act noted that "where the common property was required by law to be registered for ownership, the names of both husband and wife must be inscribed in the ownership certificate thereof" (Article 27 (2)). The couple had equal obligations and rights in possession, use, and disposition of their common property. The common property was used only to ensure the family's needs and their regular obligations. The establishment, performance or termination of civil transactions related to common property which is of great value or the family's sole means of livelihood and the use of the common property for business investment must be discussed and agreed upon by husband and wife, except where such common property has been divided for his/her business investment (Article 29 (1)). The 2000 Act contributed to the goal of building, perfecting, and protecting the progressive, prosperous, and happy marriage and the family regime in Vietnam. It recognized a higher level of human rights, civil rights, especially the rights of women and children in the field of marriage and family. It created a legal framework for establishing and ensuring the safety of property relations arising within family members as well as transactions between family members. This law also recognized the legitimate rights and interests of the parties in the marriage and family relations involving foreign elements. The Marriage and Family Act of 2000 was, on the one hand, satisfied the needs of reality, and the couples in the new stage of development, on the other hand, it contributed to the removal of backward customs and practices from the feudal regime, as well as the parental rights. It recognized the equality of husband and wife in the division of assets in the current economic integration period.
In general, from 1945 to 1975, the approach of laws on marriage and family of Vietnam have the following characteristics:
- 140/141 -
Firstly, it admitted the principle of monogamy. This principle is consistent with the general trend of the world; the pursuit of this principle is entirely appropriate in Vietnam. Even when Vietnamese territory was divided, Vietnam had approached this progressive ideology. This was shown in the Marriage and Family Acts of 1959, 1986, and 2000.
Second, the principle of equality and non-discrimination plays an essential role. This is clearly shown by gradually recognizing the ownership of the wife and the women in the family. It is also the recognition of the equality between the opposite sexes in the family.
Thirdly, the principle of priority to protect weak parties such as women and children is upheld. The attitude is clearly expressed via regulations to protect the wife and children when the spouse divorces. For example, the Marriage and Family Law does not allow the husband to request a divorce when his wife is pregnant or raising children under 12 months (Article 27 of the Marriage and Family Act of 1959).
Fourth, it is the principle of respect the free will when the parties get married and divorce. Men and women are free to decide on marriage without interfering. However, while the Law on Marriage and Family in 1986 had a restriction on people with venereal disease from getting married (Article 7 of the Marriage and Family Law 1986), the Marriage and Family Law in 2000 abolished this provision and let people with sexually transmitted diseases marry voluntarily freely.
The principles have also been developed in a progressive way go along with the mobilization of society and the transformation of family models. The above principles increasingly enhance the equality between men and women in society.
The 2014 Act on Marriage and Family has nine chapters and 133 articles. This law introduces the fundamental principle of "voluntary, progressive marriage, monogamy and equality of husband and wife." This principle interprets a provision in the Constitution, which stipulates that men and women have the right to marry and divorce, equality, and respect each other (Article 36 (1)).
It is the most essential and fundamental principle of the State's marriage and family protection regime. Voluntari-ness encourages the spouse to express in the free will manner concerning personal relationships and property in marriage and family life. This is the progressive principle of modern marriage relations that different from the concept of the patriarchal society in feudal time.
The progressive principle consolidates the central ideology of "abolishing backward customs and practices on marriage and family" of Vietnam. In
- 141/142 -
family life, backward and patriarchal traditions should also be removed to ensure progress and democracy.
The principle of monogamy is the primary and prerequisite principle to build, perfect and protect the progressive marriage and family regime with the view of the essential nature of love. This principle has eliminated the polygamy system that has been recognized for a long time in Vietnamese social history.
The principle of equality of husband and wife continues to affirm the progressive thought of Vietnamese legislators in the determination to build families - the cells of society based on solidity, freedom, and progress. Aspects of gender equality are the issue of the concerns of the whole world. Today, the role of women continues to be equally recognized in society and careers. The family is a legitimate aspiration that needs to be cared for, respected, recognized, and protected by the State. Through time, Vietnam has achieved success in promoting gender equality and empowering women. Most achievements are the removal of disparities in educational access between boys and girls. However, equality did not achieve ultimately in practice. For example, women usually acquire lower payments, and this situation was not resolved during the period 2004-2008. Currently, women seem to do more housework than men even after working hours. It means that women have more workload than men. The problem even worse in urban areas where the difference in daily housework hours between men and women is higher than that in rural areas. Similarly, the gap between times spent on household chores between the two genders is higher for Kinh/Hoa than for ethnic minorities.
According to the World Parliament Union's report in 2011, the percentage of women political participation in Vietnam ranked 43rd in the world, to express a downward trend since 2005. Vietnam is one of 21 countries to have a sharp decline in the proportion of women in politics in 2011, while China has an extremely high percentage of women in politics at the local level at 43%.[24]
Although the law stipulates that women and men have the rights and ability to implement and manage sustainable resources, they are aware of the use of rights differently depending on access to land. Vietnam's Action Aid Research and Development Organisation released the survey results "Women's access to land from the status of issuing common land use right certificates". The results showed that only about 3-5% of wife having their name on common Certificates of Land Use Rights. This means that the husbands are usually the one represents for the common property ownership. The 2014 Act encourages the couple to have their titles on certificates of common land use right through re-issuing the certificates if the wife wants to have her name on these certificates as the co-owner. Raising such awareness for women, the government was suggested to offer more propagating policies and laws to facilitate the conversion of such certificates to recognize names
- 142/143 -
of husband and wife in common land use right is introduced to the public as an extremely significant social activity. Moreover, some mass organizations such as the Farmer's Union, Women's Union, and other member organizations of the Vietnam Fatherland Front may participate this activity to raise the awareness of their members on the matter of equality. [25]
This principle is prescribed in Article 2 (2) of the 2014 Act on Marriage and Family as follows: "Marriage between Vietnamese citizens of different nationalities or religions, between religious and non-religious people, between people with beliefs and people without beliefs, and between Vietnamese citizens and foreigners shall be respected and protected by law." Vietnamese Law always respects and protects the marriage relationship established between Vietnamese citizens of different ethnic groups, religions, and beliefs, or between Vietnamese with foreigners. Individuals who are eligible for marriage have the freedom to marry in Vietnam. Acts of deception, coercion or affection in marriage are strictly prohibited and subject to legal sanctions (e.g. civil, administrative, criminal measures) according to the acts and seriousness of the violations. In addition, the law does not discriminate between the parties in the marriage. Individuals who meet the conditions for marriage are entitled to get married regardless of their status, social background, gender, ethnicity, religion, and nationality. Vietnamese law, however, does not recognize same-sex marriage because of the cultural and natural factors in the marriage relationship.
The principle of protecting the rights of family members specified in Article 2 (3) of the 2014 Act on Marriage and Family that family members must be obliged to respect, care for and help each other. Parents and grandparents must not discriminate between children. It can be said that this is one of the provisions of full of humanity and represents the remarkable progress of Vietnamese lawmakers. This attitude was introduced in the 1959 Act on Marriage and Family - the first Marriage and Family Act after the country reunion. Explicitly, Article 2 of the Marriage and Family Law 1959 stipulated that the law's purpose was "Eliminating the remnants of the forced feudal regime, respecting men and women, interesting the rights of children." According to Article 1 of the Marriage and Family Law 1959, "the State guarantees the full implementation of a free and progressive marriage regime to build happy, democratic and harmonious families, in which everyone united love each other, help each other to progress together." Thus, the newly issued 1959 Act on Marriage and Family had regulations to eliminate outdated Confucian thoughts existed for thousands of years. It enhanced the equality and happiness of individuals in society. It emphasized the determination of Viet-
- 143/144 -
namese lawmakers to realize the goal of building a happy and prosperous family. These rules have been upheld entirely to later marriage and family acts.
In addition, the 2014 Act on Marriage and Family safeguard the rights of children, the elderly, people with disabilities, and the interests of women and children. This is one of the fundamental principles of marriage and family law because these subjects are enormously popular in the social relations arising in the field of marriage and family.
Article 2 (4) of the Marriage and Family Act of 2000 provided that "Parents are obliged to bring up their children into citizens useful for the society; children are obliged to respect, care for and support their parents; grand-children are obliged to respect, care for and support their grandparents; family members are obliged to look after, care for and help one another." Since then, there are direct regulations to the protection of the rights of the elderly, people with disabilities, women, and children. For instance, the Elderly Act of 2009[26] set out rules that create conditions for participation in cultural activities, education, sports, entertainment, tourism, and leisure. Some regulations concern the working conditions in conformity with their health and occupation recognized by the elderly. In terms of vulnerable persons, the 2010 Act on People with Disabilities[27] stipulates that people with disabilities are entitled to equal participation in social activities, health care, rehabilitation, education, and vocational training.
Moreover, women and children are the two subjects to be protected when the spouses' divorce. The State also has many documents to protect children's rights such as the Ordinance on the protection, care and education of children of 1979, the 1991 Act on the protection, care and education of children, the 2004 Act on Protection, child care and education and the current effective document - Child Act of 2016[28].
To ensure the preservation of the beauty in the family tradition of Asian culture in general and Vietnamese in particular, Article 2 (5) of the 2014 Act stipulates that promote the cultural traditions and fine ethics of the country in marriage and family. This principle serves as a guideline for the specific provisions of marriage and family law, and the resolution of disputes.
According to Article 29 of the Marriage and Family Act of 2014, the spouse must comply with the below principles, whether they have the statutory property regime, or the nuptial agreement regime as follows:
First, husband and wife have equal rights and obligations in the creation, possession, use, and disposition of their common property without discrimination between housework labour and income-generating labour.
Second, the husband and wife must ensure conditions to support the family's essential needs.
- 144/145 -
Third, when the performance of property rights and obligations of husband and wife infringes upon lawful rights and interests of the other spouse, the other spouse's family, or other persons, compensation shall be paid.
Thus, the basic principles in the Marriage and Family Laws are the reaffirm of the basic principles in civil law. Also, these laws are a true reflection on the development of Vietnamese society throughout historical periods. In the feudal period, the patriarchal principle was promoted, and the inequality between men and women was obvious. During the French colonial time, the patriarchal law was maintained, but there was some minor evidence for the more equality between men and women. From 1975 up to the present period, Vietnam has increasingly asserted equality and autonomy in society as well as among family members.
This principle of equality appears in national laws throughout the world, including laws of member states of the European Union. For example, The European Convention on Human Rights (ECHR)[29] sets out regulations that protect equality in family law and non-discrimination. The similar rule can be found in laws of EU's members, for example, under the Hungarian Civil Code, there are several concerning the protection of marriage and family, protection of the child's interest, equality of spouses, and lastly fairness and the protection of the weaker party. All principles affect the child's position and his or her best Interest.[30] Sections 4:1 to 4:4 stipulate that Hungarian family law respects and protects items in marriage and family relations based on respect for individual freedoms and cohesion between members in the family. The child's legal rights and interests are the priority in the family, especially children who are not yet members. The husband and wife must behave equally in the exercise of their rights and obligations to each other. Equality is not only practised between husband and wife but also among family members. Also, it must protect the disadvantaged and the elderly, the needy, or the disabled citizens. Thus, although the Family Law of Hungary and Vietnam may be different in the wordings, the legal principles of marriage in these legislations are similar. These are progressive principles recognized and pursued by the legislative community in the world regardless of different levels of development or other social and traditional backgrounds.
By comparing and analysing basic principles in civil and family laws, it showed different legal aspects throughout Vietnam's legal history. In general, new fundamental principles have much more professional and progressive ideas than that in the past in term of protecting the interest of the couple's marital property. Indeed, they concern more about equality, progressive marriage, monogamy, the interest of women, children, the elderly and disabled people that were not mentioned by the laws in feudal time. Although
- 145/146 -
Vietnam has achieved significant progress in promoting gender equality and women's empowerment, it is still a gap between the goals and expectations mentioned in government documents with actual numbers of facts women's participation. Regarding women's participation in the National Assembly, the proportion of women in the parliament drop to the lowest rate since 1997. Within the Communist Party of Vietnam, the percentage of female members increased slowly and reached 33% in 2010.[31] Thus, practical implementation of equality in the marital property face challenges in some points regardless of women awareness that maybe solve by propagandising activities on policies and laws to raise awareness.
Moreover, the basic principles of civil and family laws in Hungary are taken into consideration in term of comparative aspects that seem like Vietnam counterpart in general. In general, principles on Hungarian family law also protect marriage and family the child's interest, equality of spouses, fairness, and the protection of the weaker party. These principles are seemingly evitable regulations under the modern States' family laws in Vietnam and Hungary. ■
JEGYZETEK
[1] See K.W Taylor: A history of the Vietnamese, Cambridge University Press. U.K. 2013. pp.400-446.
[2] Klaus-Heiner Lehne: Perspectives of European Private Law ERA-Forum 2-2002
https://link.springer.com/content/pdf/10.1007/BF02817590.pdf, last visited on April 24th, 2020.
[3] Civil Code No. 44/1995/QH09 was issued by the 09th Vietnamese National Assembly on October 28, 1995.
[4] Civil Code No. 33/2005/QH11 was issued by the 11th Vietnamese National Assembly on June 14, 2005.
[5] Civil Code No. 91/2015/QH13 was issued by the 13th Vietnamese National Assembly on November 24, 2019. https://thuvienphapluat.vn/van-ban/quyen-dan-su/Bo-luat-dan-su-2015-296215.aspx
[6] Act on Marriage and Family No. 54/2014/QH13 issued by the 13th Vietnamese National Assembly in January June 6, 2014. This law takes effect from January 1, 2015.
[7] Commercial Act No. 36/2005/QH11 issued by the 11th Vietnamese National Assembly on June 14, 2005. This law takes effect from January 1, 2006.
[8] Labour Code No. 45/2019/QH14 issued by the 14th Vietnamese National Assembly on November 20, 2019. This law takes effect from January 1 year 2021.
[9] Civil Code No. 91/2015/QH13 issued by the 13th Vietnamese National Assembly on November 24, 2019. This law takes effect from January 1 year 2017.
[10] Decree No. 126/2014/ND-CP dated December 31, 2014 by The Vietnam's Government. This Decree is detailing several Articles and Measures for implementation of the law on Marriage and Family 2014.
[11] Facio & Morgan: Equity or equality for women understanding cedaw's equality principles. Alabama Law Review, 60(5) 2009. pp.1133-1170.
[12] Act V of 2013 of The Civil Code was promulgated on 26 February 2013.
[13] Dung Q. Tran: Tim hiêu Luât Hôn nhân và gia dinh (Learn about the Law on Marriage and Family). Publishing Dongnai - Vietnam 2000. p.6.
[14] The Hong Duc Code (also known as the Penal Code of the Le Dynasty) was compiled several times in the years 1470-1497 under King Le Thanh Tong of the Le dynasty.
[15] The Napoleonic Code was issued on February 10th, 1804 and promulgated the 20th of the same month in France. This law has been affected greatly to the legislative experience of several countries on over the world. See Luce Marie, Dobozy Paris: Still Alive-Some Observations about the Two-Hundred Years of Existence of the French Code Civil 1804. Irish Journal and European Law, volume 12/2005. p. 91 (See also Jean-Louis Halpérin). See the other - Summer Lobinger, Charles: Napoleon and his code. Harvard Law Review, Volume 32, 1918. p.117.
[16] Linh T. M. Nguyen: The impact of the French colonial law on the development of matrimonial property law in Vietnam. Dike Journal Pécs, No. 1, Hungary 2019. pp.65-82.
[17] See Mâu V. Vu: Cô luât Viêt Nam và Tu pháp sü (Vietnamese Law and Judicial History). Book One, Saigon, Vietnam 1973. p.195.
- 146/147 -
[18] Gia Long Code was newly issued in the Decree on July 3, 1933 by the King Nguyen (Vietnam) and the Governor- General (France) and applied in the Central Region. Gia Long Code's new version had all 429 articles. In the introductory clause, the Code was modified only a few things to meet the demand of Vietnamese society and traditional customs. See Mâu V. Vu: Dân luât luoc khâo (Civil Law Review). Volume 1 - Family, Publishing Education Ministry, Saigon - Vietnam 1962. pp.550-560.
[19] Vinh N. Hà, Chê do hôn sân pháp dinh trong luât Viêt Nam (The legal marriage regime in Vietnamese law), Saigon- Vietnam, 1967, p.42.
[20] Thanh D. Phan, Hôa T. Trirang: Các chê do hôn nhân và gia dinh Viêt Nam xira và nay (The old and new matrimonial property regimes in Vietnam). Ho Chi Minh - Vietnam 2012. p.49.
[21] Thiêt V. Phan: Phu nu Viêt Nam triróc pháp luât (Vietnamese women in accordance with the law). Universal Bookcase Publishing House - Saigon, Vietnam 1955. p.51.
[22] Vu: Dân luât liioc khâo (Civil Law Review). p.560.
[23] On 13 January 1960, the Law on Marriage and Family in 1959 took effect only in the Northern Vietnam. In 1954, signing the Geneva Agreement, Vietnam was divided into two South and North. In the South of Vietnam, under the Republic of Vietnam regime, there is also a law on marriage and family called the Family Law issued on January 2, 1959. After the reunification of the country, the Marriage and Family Law 1959 was applied nationwide officially from March 25, 1977 in which the Government Council promulgated of Resolution No. 76-CP announcing the list of documents. Legislative documents were uniformly applied throughout the country.
[24] United Nations Viet Nam: Women participate in politics in Vietnam, https://www.undp.org/content/dam/vietnam/docs/Publications/30282_Factsheet_Women_Politi-cal_Representation_in_Vietnam_VN.pdf, last visited on July 8th, 2020.
[25] Nguyen Cuong: Gender Equality in Education, Health Care, and Employment: Evidence from Vietnam, https://mpra.ub.uni-muenchen.de/54222/1/MPRA_paper_54222.pdf, last visited on May 8th, 2020.
[26] The Elderly Act No. 39/2009/QH12 issued by the 12th Vietnamese National Assembly on November 23, 2009.
[27] The People with Disabilities Act No. 51/2010/QH12 issued by the 12th Vietnamese National Assembly on June 17, 2010.
[28] Child Act 102/2016/QH14 issued by the 14th Vietnamese National Assembly on April 05, 2016. This law takes effect from June 1, 2017.
[29] It was Formally called the Convention for the Protection of Human Rights and Fundamental Freedoms in Europe and entered into force on 3 September 1953. It has been undergoing several amendments and supplements following years. The current state of signatures and ratifications of the Convention and its Protocols as well as the complete list of declarations and reservations are available at www.conventions.coe.int.
[30] Szeibert: Parental Responsibilities and the Child's Best Interest in the New Hungarian Civil Code. International Survey of Family Law, 2013. pp.143-150.
[31] United Nations Viet Nam: Participation of women in leadership and management roles in Vietnam
https://www.undp.org/content/dam/vietnam/docs/Publications/30952_27_11_Bao_cao_cua_Jean_da_sua_so_trang.pdf, last visited on July 8th, 2020.
Lábjegyzetek:
[1] The Author is PhD student, University of Pécs, Faculty of Law, Hungary Lecturer, Cantho University, Vietnam.
Visszaugrás
