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>>Relationships between parents and children under Vietnam’s ancient laws

>>Conjugal institutions under ancient laws of Vietnam

Pham Diem

The State and Law Research Institute

In ancient Vietnam, the child adoption became a universal phenomenon. People adopted children for various reasons. For compassion and kind heart, some adopted orphans or children of needy families. For own profits, some adopted children in order to have more unpaid work hands in their families; creditors also adopted their debtors’ children who had to work for the repayment of their parents’ debts, both principals and interests. For the spiritual life, some people who were rich in their material life but poor in their spiritual life due to evil things they had often met with or to their being issueless for a long time also adopted children to seek and pray for happiness.

Therefore, the child adoption attracted attention of ancient law-makers in Vietnam as clearly seen in many articles of the ancient laws prescribing this matter.

I. The Classification of Children

Carrying on the lineage and worshiping ancestors have become an important thing in the families as well as the spiritual life and feelings of the Vietnamese people. Therefore, every family wished to have children soon. To people, the more children and grandchildren they got, the more blessings and happiness they obtained. This, together with the promotion of the women’s chastity, gave rise to the classification of children in ancient customs, practices and laws as follows:

Legitimate children:

In the patriarchal families of the Vietnamese people, husbands, besides their legitimate wives, might get concubines and maids. All children either given birth to by the legitimate wives, concubines or maids were considered by the husbands the legitimate children. However, they were different in terms of their positions in the family. Children of the legitimate wives, however small they were, were always considered elder brothers and sisters. Such distinction was of great significance as it concerned the ancestral worshiping. Only the eldest son of the legitimate wife was appointed to take care of the ancestral worshiping. Where the eldest son died, the second eldest son would be chosen for the task. Sons of the concubines could be selected to perform such task only if the legitimate wives had no children. Ancestral worshiping has become one of the most important thing in the Vietnamese families. Therefore, if any people were struck with unfortunateness by having no children, they would adopt children.

Bastards (out-of-wedlock children)

According to old perception, practices and ancient laws, a child was considered a bastard when:

- His/her mother had no husband and no man to take care of; or

- The child was the offspring of the married woman and her adulterer.

A legal document published in the 15th century under the title “Hong Duc Thien Chinh Thu” recorded a judgement on a girl who got pregnant without a husband. According to such judgement, if the adultery was not caught in the scene, only the girl got punished and the child was considered bastard being unable to inherit, like other children in the family, the property when the parents died as under the Confucian viewpoints in the Orient, the only purpose of marriage was to give birth to children who would carry on the lineage; hence, adultery was a very serious crime against the morality and law.

Article 332 of the Gia Long Code (the 19th century) also prescribed severe punishment against adulteresses whose children were considered bastards.

In Vietnamese families, the adopted children’s position was usually inferior to that of the legitimate children.

II. Child Adoption in Ancient Laws of the Le Dynasty

In Hong Duc Code (the 15th century), the child adoption was defined in Articles 380 and 381. According to Article 380: “If children are adopted with written documents stating that they are entitled to land distribution, they, like the legitimate children, shall be distributed land when the parents die without testament. If the couple have no children of their own and the adopted children live with them since their childhood, the latter shall inherit all the land. Where the written documents do not state the distribution of land to the adopted children, this law shall not apply. If the heads of the lineages distribute land in contravention of the above-mentioned regulations, they shall be penalized with 50 whippings.”

Meanwhile, Article 381 stipulated: “If adopted children have already been given land by their adoptive parents, when the parents die, they shall also be entitled to inherit land with a portion equal to half of the share of a legitimate child in the family.”

Regarding the adoption procedures, the laws of the Le dynasty stipulated that the adoption had to be made in contracts between the adoptive parents and the natural parents.

Regarding the conditions for adoption, if children were adopted in order to carry on the family lineage and worship the ancestors, the two following conditions had to be met:

- The to be-adopted children had the same family names with the adoptive fathers. In other words, people had to adopt children of the same family line in order to preserve the interests and the long existence of their lineage.

- Children had to be adopted while they were still very young, more specifically at the age of from 3 to 7. The then law-makers reasoned that if children were under 3, it would be inhuman to separate them from their parents. If they were over 7 years old, they were able to perceive matters, thus affecting the sentiments between them and their adoptive parents.

Yet, under the ancient laws, if the adoption was made for other purposes (humanitarian purposes, increasing work hand in the family, etc.), the to be- adopted children could be at any age.

Besides, the laws also prescribed another condition that people were not allowed to adopt the eldest sons of others. This is quite understandable because according to the Oriental traditions, the eldest sons in the families had to take care of their parents when they got old and weak and to worship their ancestors.

Hong Duc Code and the legal document titled “Hong Duc Thien Chinh Thu” prescribed not only the procedures and conditions for adoption but also the rights and obligations of the adopted children.

If children were adopted right from the early days of their childhood, they were considered the legitimate children and had to take care of their adoptive parents when they were ill and old.

Article 110 of the “Hong Duc Thien Chinh Thu” stipulated “Adopted children shall have to consider themselves legitimate sons of the families. They must not leave the families without permission and must show their filial piety to their adoptive parents.”

According to Article 257 of the same legal document, when their adoptive parents died, the adopted children had to wear crepe for them for three years like the latter’s legitimate children. If not, they would be charged with undutifulness, one of the ten grave offenses under the feudal laws.

Regarding the adopted children’s rights to inheritance, the ancient laws provided that if the adoptive parents had their own legitimate children, the adopted children would be entitled to inherit a portion equal to half of the share of a legitimate child when their adoptive parents died. If the adoptive parents had no children of their own and the adopted children lived with them right when they were still very young, the latter would be entitled to inherit all the property of their deceased adoptive parents. If the adopted children did not stay with their adoptive parents from their childhood, they would be entitled to inherit two-thirds of the assets left behind by their deceased adoptive parents while the rest would belong to the latter’s relatives.

However, the relationships between the adopted children and their natural parents were not totally cut off. Under the provisions of “ Hong Duc Thien Chinh Thu”, if their natural parents had no one else to take care of them and to worship their ancestors, such adopted children had to return to live with their natural parents. While they were adopted, they still had to show their filial piety to their natural parents, taking care of them when they got weak and old. When their natural parents died, the children being adopted by others had to return and mourn for them and they would be entitled to a portion of the property left behind by their deceased parents.

Article 110 of the “Hong Duc Thien Chinh Thu” stipulated: If all their brothers, the eldest as well as the elder, had passed away, when their natural parents died, the children being adopted by others, had to report such to their adoptive parents before being permitted to return in mourning for the deceased parents.

The Gia Long Code of the Nguyen dynasty (in the 19th century) also prescribed the child adoption but only sparsely and not much differently from the legislation of the Le dynasty. Perhaps, the law-makers during the Nguyen dynasty thought that the question of child adoption had been fully prescribed in the legislation of the Le dynasty and become legal practices among the population; therefore it needed not to be re-defined.

In a nutshell, the question of child adoption prescribed in the ancient laws of Vietnam has demonstrated the spirit of mutual affection and mutual help, a fine tradition of the Vietnamese people in the past as well as at present.-