>>The dinstinctiveness of Vietnamese ancient laws
Tran Thi Tuyet
The State and Law Research Institute
In the ancient laws of Vietnam, the civil liability was considered a basic principle in civil transactions. However, it was thought of by the ancient law-makers in a more criminal sense without any clear-cut concept of pure civil liability like in Western ancient laws and without a clear-cut distinction between liabilities for the violations of civil laws’ provisions and the liabilities for the fulfillment of commitments in civil contracts. Moreover, criminal remedies were usually applied as penalties against acts of causing physical or material harms to other persons.
It is rarely found in big codes of Vietnamese feudal states special cases where pure civil liability was prescribed. Article 581 of Quoc Trieu Hinh Luat (The Royal Court’s Penal Code) stated: “Those who let their buffaloes and/or horses tread on or eat rice plants and/or mulberry of other persons shall be penalized with 80 canings and compensate for damage. If they cannot harness their buffaloes and/or horses that go wild, they shall be exempt from canings.”
Article 585 of Quoc Trieu Hinh Luat stressed: “If buffaloes of two families fight each other, the one that gets dead shall be used for food by the two families and the surviving one shall be used as draught animal by both families. Those who act against this law provisions shall be penalized with 80 canings.” So, it is clearly seen that penalties shall apply only when the involved parties refuse to abide by the prescribed civil solutions. This is close to the modern civil law’s provisions on accepting risks and reflects the close unity within traditional villages of Vietnam.
According to Article 91 of Hoang Viet Luat Le, those who intentionally destroy things, crops, plants of other persons shall, apart from being penalized like thieves, have to compensate for the damage incurred by the latter. If they unintentionally cause the damage, they shall be exempt from penalties but have to make the compensation therefor.
Though having failed to clearly distinguish between the civil liability and the criminal liability, the ancient laws of Vietnam more or less defined some basic contents of the civil liability. In this writing we would like to deal with only two of such basic contents prescribed by many articles of Vietnam’s two big ancient codes.
1. Conditions for civil liabilities to arise
According to Vietnamese ancient law-makers, civil liabilities would arise only when damage was caused to the properties, honor or dignity of other persons either by violations of civil laws or the non-performance of civil contracts. Most of provisions of the Vietnamese ancient laws touched on the question of compensation for the victims though the feudal laws could not help protecting the interests of the upper class.
Articles 472, 473 and 474 of Quoc Trieu Hinh Luat also defined specific cases of discrimination according to social status of the involved parties in performing the civil liabilities. Those who assaulted and/or insulted royal family members or mandarins would be subject to penalties, compensation to material damage and honor of their victims. If people of lower social status assaulted and/or insulted people of higher social positions, they would be subject to penalties, compensation for the injuries inflicted upon the victims and a fine as compensation for their damaged honor as prescribed by law.
The ancient laws also prescribed a number of special cases such as the forcible compensation for dignity and reputation upon divorce. Article 315 of Quoc Trieu Hinh Luat stipulated: “Those who, after receiving the wedding presents, change their idea and marry their daughters to other men shall be penalized with 80 canings while their daughters must marry the men they were first engaged to. If the first marriage proposers refuse to marry such girls, they shall have to make compensation therefor doubling the wedding presents and the girls may marry the subsequent proposers. If the to-be groom’s family that has delivered the wedding presents then changed the idea to the contrary, the penalty of 80 canings shall be imposed and the wedding presents can not be got back”.
Compensation to the damage caused to the properties, interests or physical bodies of other persons was given particular treatment by the ancient laws. On principle, the criteria for compensation shall be the extent of damage. Yet, unlike the modern civil law, the ancient laws of Vietnam attached importance to the distinction between damage caused intentionally and damage cause unintentionally. The act of deliberately causing damage was often considered an aggravating circumstance; hence, the compensation often doubled. Article 579 of Quoc Trieu Hinh Luat stipulated: “Those who are entrusted with cattle and/or properties to take care of for other persons but use them up shall be subject to 80 canings and the compensation for the loss amount they have caused; if they lie that the cattle have died or the properties have lost, they shall be subject to virtue degrading and the compensation doubling the loss amount.”
Article 581 of Quoc Trieu Hinh Luat stressed: “Those who let their buffaloes and/or horses tread on or eat rice plants and/or mulberry of other persons shall be subject to 80 canings and compensation to the damage. If they deliberately let their buffaloes and/or horses to tread on or destroy paddy and/or mulberry of other persons, they shall be subject to virtue degrading and compensation doubling the loss amount. If they cannot harness their buffaloes and/or horses that rear themselves up, they shall be exempt from the caning penalty.”
In a number of other civil relations, the ancient laws compelled the compensation doubling the loss amount if it was caused due to deliberate acts. Article 601 of Quoc Trieu Hinh Luat compelled the double compensation to owners of crops destroyed by others while Article 448 of Quoc Trieu Hinh Luat stated those who pledge an already pledged person to other people shall have to double their compensation.
On the contrary, where the damage was caused unintentionally or due to carelessness, the penalties and compensation therefor would be reduced. Article 473 of Quoc Trieu Hinh Luat stipulated: Those who, when intoxicated with alcohol, insult people with titles, shall pay a fine half the prescribed level. Perhaps, the increase or reduction of pecuniary compensation to damage caused by intentional or unintentional or careless acts were used by ancient law-makers as a penalty and a measure to prevent and deter acts of law offense.
The ancient laws of Vietnam also attached importance to the responsibility to pay compensation for damage caused by other persons’ acts, that was the parents’ responsibility for acts committed by their children regardless of whether they were minors or adults; the house masters’ responsibility for acts committed by their servants (Articles 456, 457 and 458 of Quoc Trieu Hinh Luat); the responsibility of animal or object owners or users for damage caused by their animals or objects (Articles 582, 585 of Quoc Trieu Hinh Luat and Article 208 of Hoang Viet Luat Le); the responsibility for occupational errors in such occupations as veterinary medicine, medicinal practice, martial art competition… Panoramically, the civil liabilities prescribed by the ancient laws for the above-mentioned cases were often heavy for intentional errors and light for unintentional or careless faults or acts committed by completely inanimate objects. At the same time, to certain extent, the ancient law-makers’ ideas approached the theory of risk acceptance and responsibility sharing as manifest in some special cases (Article 585 of Quoc Trieu Hinh Luat).
A number of specific articles, though not many, of the ancient laws permitted the lessening of liabilities of the involved parties, particularly in cases where acts were committed under force majeure circumstances or when the victims were at fault. The notes on Article 499 of Quoc Trieu Hinh Luat clearly pointed out: Things happening beyond the human capability to bear, to see or to realize, which cause casualties, were but a mistake. Similar definition was also seen in Article 261 of Hoang Viet Luat Le.
For cases where damage were caused due to the victims’ faults, both Quoc Trieu Hinh Luat and Hoang Viet Luat Le found such as an excuse for full exemption of liability for the involved parties. For example: Article 582 of Quoc Trieu Hinh Luat and Article 208 of Hoang Viet Luat Le stipulated: If a laborer hired to medically treat an animal gets killed or injured by such animal, the animal owner shall be pleaded not guilty (being exempt from penal as well as civil liability in this special case).
2. Compensation to victims
The Vietnamese ancient laws prescribed two principal forms of compensation to victims: The compensation in kind and the compensation in equivalent value.
The compensation in kind means the restoration of the status quo in order to satisfy the desire of the victims. This form was often applied to the performance of contractual obligations when the debtors fail to perform their committed duties, thus causing damage to the creditors. And in such a society based on the agricultural economy like Vietnam’s, this form was applied mainly to the purchase and sale of land. For instance, Article 384 of Quoc Trieu Hinh Luat stipulated : For “dien mai” (temporarily sold) land, when the time for redemption of such land has come and the land buyer deliberately delays such redemption, he/she shall, beside the penalty, have to let the land owner redeem such land and refund him/her the interests on the number of days of delayed redemption. According to Article 382 of Quoc Trieu Hinh Luat, those who stealthily sell land shall, apart from penalty, have to return the money to the land purchaser, pay an equal amount as fine for distribution to the land owner and the purchaser and to return the land to its lawful owner.
For cases of illegal purchase and sale of land, besides the cancellation of the contracts and the return of the sold property to its lawful owners, the ancient laws also prescribed the payment for the cost of deed writing, being equal to 1/10 of the value of the returned property (Article 30 of Quoc Trieu Hinh Luat).
The form of compensation in equivalent value was applied to cases where the compensation in kind could not be made. It could be made in money, other property or in form of financial support for the victims. Yet, the compensation level might be equal to or many times the value of damaged object, depending on whether it was caused unintentionally or intentionally.
Article 28 of Quoc Trieu Hinh Luat prescribed two levels of compensation: double compensation, if the damaged objects were public property; and equivalent compensation, if the damaged objects were of small value. Yet, the compensation would be five or even nine times the value of the damaged object, if it was the case of recidivism.
The ancient laws also specified the amounts of money compensated for the loss of human lives, depending on the social status of the victims. According to Article 29 of Quoc Trieu Hinh Luat, the compensation levels were 15,000 quan (a feudal money unit, equal to a hundred coins) for the death of a first- grade mandarin, 300 quan for a nine-grade mandarin and 150 quan for a commoner.
However, the ancient laws contained not many provisions on compensation in other properties which could not be substituted by money. For example, under the Ly dynasty in 1142, a law provisions stipulated that if a dispute over land leads to a fight, resulting in death or injuries of people, the culprits would be subject to 80 canings and corvee labor; the disputed land would be used as compensation to the dead or injured victims.
Article 360 of Quoc Trieu Hinh Luat also stated: “Those involved in a land dispute and beat other persons to plunder their paddy crop shall be subject to 60 canings, virtue demotion and the double compensation for the plundered paddy crop.” Meanwhile, Article 271 of Hoang Viet Luat Le prescribed the combined compensation (the compensation in equivalent property and the compensation in form of financial support for the victims): in a number of specific cases where the victims had broken legs or arms, or harm to some organs on their bodies, the culprits would be subject to 100 canings, exile to far-flung areas and material compensation equal to half of their property as financial support for the victims.
Another special form of equivalent compensation was also prescribed by the ancient laws of Vietnam, that was to provide feeding and medical treatment for victims for between 10 and 80 days, depending on the seriousness of the injuries. If during such period, a victim died of the injury, the culprit would be heavily punished. If he/she died of other causes, the penalty would be equal to that imposed on the crime of beating other persons to injury. After such period, if the victim recovered, the culprit would be exempt from penal liability.
As mentioned above, due to the lack of clear-cut distinction between the civil liability and the penal liability, the ancient laws imposed penalties often heavier than the extent of damage. They were not inclined to abstract thinking, hence the lack of general conceptions as well as overall principles, but to realities and the settlement of specific cases in daily life.-