Pham Diem
State and Law Institute
At present, the perception of civil law in Vietnam is different from those in many other countries.
In Vietnam’s legal system, the marriage and family law is not included in the civil legislation but constitutes an independent branch of law as the Orient’s traditional perception has highly treasured marriage and the family, considering the marriage-family relationship the special affection relationship, not merely the civil relationship. Vietnam’s Marriage and Family Law governs the marital relationship, the personal relationship among family members with the husband-wife relationship and the parent-child relationship being the core. The property relations governed by the Marriage and Family Law are the property relations among subjects not independent in property and to which the principle of equivalent compensation cannot be applied as the properties of husbands and wives during their marriage are the common properties under the consolidated ownership. Meanwhile, civil legislation regulates separate property relations of husbands, wives and other family members.
There also exists in Vietnam’s legal system the distinction between civil law and economic law. These are two very close law branches going in company with each other. As far as the regulation subjects and regulation methods are concerned, both civil law and economic law regulate property relations of monetary and commodity nature, but the civil law inclines to regulate property relations in the field of daily-life consumption while the economic law governs the property relations in the production and business fields. The subjects of economic relations are also subjects of civil relations but the scope of subjects in the economic law is more restricted than that in the civil law. The subjects involved in economic relations are merely legal persons and individuals having business registration, at least one of them must be the legal person. Because of such distinction between the civil law and the economic law in Vietnam, besides the civil-law documents there also exist economic-law documents (such as the Ordinance on Economic Contracts, the Commercial Law,...). So far, there have been almost no clear theoretical and practical definitions between civil law and economic law.
So, to understand the history of Vietnamese civil law, one must, first of all, understand the perception of civil law in Vietnam.
With the victory of the August 1945 Revolution, Vietnam shook itself off the French colonial regime and the Democratic Republic of Vietnam State (now the Socialist Republic of Vietnam State) was established. Since then, the civil law of the new Vietnam has been step by step formulated and developed. The modern history of Vietnam’s civil law has gone through two stages:
- The civil law in the period prior to the promulgation of the Civil Code (1945- 1995).
- The civil law in the period after the promulgation of the Civil Code (1995 till now).
Following the August 1945 Revolution, the young state of the Democratic Republic of Vietnam was unable to immediately build up a new legal system while it could not let a day pass by without law in the country. For that reason, on October 10, 1945, the provisional government of the Democratic Republic of Vietnam issued an order on temporary use of some of laws and rules of the old regime, including economic, social, civil, marriage and family, criminal law provisions and rules, which were considered and selectively applied so that they did not run counter to the principle of Vietnam’s independence and the political regime of democratic republic. In that spirit, in the civil domain, such civil laws of the French-rule period as the “Bo Dan Luat Bac Ky 1931” (The Northern Region Civil Code of 1931), the “Bo Dan Luat Trung Ky 1936” (The Central Region Civil Code of 1936), the “Bo Dan Luat Gian Yeu Nam Ky 1883” (The Southern Region Concise Civil Code of 1883) continued to be enforced (until 1959 when they were totally abrogated).
Immediately after the August Revolution, the Vietnamese people had to wage the anti-French colonialist war of resistance (1946-1954) to defend the national independence. In such circumstance of fierce and prolonged war, the Democratic Republic of Vietnam State had no conditions to elaborate civil-law documents. The only one important document then was the May 22, 1950 Decree “amending a number of provisions and institutions in civil law,” which was of special significance in the history of Vietnam’s civil law because for the first time it spelt out a number of basic principles of new civil law. Though it did not abrogate the old civil laws, it substantively changed the old regime’s civil law with supplements thereto, which set forth basic principles of the new civil law of the independent and sovereign Democratic Republic of Vietnam. After half a century, those principles, which were of democratic, progressive and profoundly popular nature, are still valid till today for the building of civil law in Vietnam. They include:
- “The civil rights are protected by law when they are used in conformity with the people’s interests” (Article 1 of the Decree).
- “One may only enjoy and use things under his/her lawful ownership without harming the people’s interests” (Article 12).
- “The contracts which cause harms to one party due to the exploitation by the other party as the result of economic gap between the two parties can be invalidated” (Article 13).
- “The married women have full civil capacity. The parents have no right to detain their children and must recognize their children’s right to self-reliance when they are at mature ages, such as the right to inheritance, the right to free marriage,...” (Article 6).
After the victorious resistance war against the French colonialists, North Vietnam was liberated. But the Vietnamese people had to wage the anti-US war of resistance for national salvation (1954-1975).
For the first time, many civil rights were stated in the 1959 Constitution of the Democratic Republic of Vietnam, which prescribed: “The State protects citizens’ ownership over their lawfully-earned wealth, reserved wealth, dwelling houses and other specific things.” (Article 18); “The State protects by laws the citizens’ right to inherit privately-owned properties” (Article 19); “Women in the Democratic Republic of Vietnam are equal to men in all aspects, political, economic, cultural, social and family” (Article 24); “The citizens of the Democratic Republic of Vietnam have the right to free residence and movement” (Article 28).
In 1960, Vietnam’s first ever Law on Marriage and Family was enacted, which separated a part of social relations from the civil law. By early the 1980s, the Vietnamese State promulgated a number of legal documents for regulation of civil relations. These were, however, merely normative documents issued by executive bodies (including decrees of the Government, decisions of the Prime Minister) and none of them was promulgated by the legislative body. The contents of these documents failed to cover many important domains such as inheritance, intellectual property right,.... Even the civil obligations prescribed in such documents mainly touched upon the question of dwelling houses, gold, silver, gemstones. Particularly, in those documents, the administrative orders were commonly used, thus distorting the civil relations and equality, the self-determination among subjects of the civil law; or in other words, the regulation method of the administrative law was universal in the civil relations.
In order to redress loopholes in the social life, which were not governed by legal documents even in form of the Government’s decree or the Prime Minister’s decision, then, the Supreme People’s Court issued circulars, directives as well as annual reports for use as basis for settlement of civil disputes, which were of legal value like law for the subordinate courts to adjudicate civil disputes.
Generally, for a long period from the time the Democratic Republic of Vietnam was established in 1945 to the time Vietnam embarked on the cause of “doi moi dat nuoc” (national renewal) in the mid 1980s, the civil law branch in Vietnam remained in the process of formation and was considered the most underdeveloped law branch in the country. The Vietnamese civil legislation in this period was characterized by the following:
First, the civil-law documents, formulated and promulgated in a small number, were all normative documents issued by executive bodies, and none was promulgated by the legislative body.
Second, in the civil-law documents, the regulation method of the administrative law was widely applied, thus having more or less distorted the civil relations.
Third, the regulation contents of the civil law remained limited and one-sided. The civil law mainly regulated the civil relations in the marriage and family domain, the property relations in the daily-life consumption domain while ignoring many other important civil relations such as inheritance, contracts, intellectual property, property relations in the production and business domain,...
Such a situation was attributed to many objective and subjective causes. First, Vietnam had to go through 30 years of fierce and prolonged wars (1945-1975). The State apparatus operated under a highly centralized mechanism with State subsidies and the economy was nothing but a self-sufficing economy. In such a circumstance, the civil law had no conditions to thrive. Second, in this period, Vietnam was not fully aware of the importance and role of the civil law in regulating civil relations.
Since 1986, Vietnam has embarked on the cause of comprehensive national renewal with many contents directly related to the civil law.
First, as the economy has shifted from the centralized mechanism with State subsidies to the market mechanism, law, particularly civil law, is required to develop and conform to commodity-money relations.
Second, the step-by-step building of a law-governed State, a civic society and the civil society also requires the development of law in general and civil law in particular.
Third, the perception of the role and importance of law in general and civil law in particular has been constantly heightened.
Until the promulgation of the first Civil Code in 1995, Vietnam had gone through 10 years of renewal. In this period, the civil law in Vietnam saw big steps of development with numerous substantive changes. Many civil-law documents, including laws and ordinances, were promulgated. Prominent among them were:
- The Marriage and Family Law promulgated in 1986;
- The Nationality Law, in 1998;
- The Ordinance on Transfer of Foreign Technologies into Vietnam, in 1998;
- The Ordinance on Industrial Property, in 1989;
- The Ordinance on Economic Contracts, in 1989;
- The Ordinance on Inheritance, in 1990;
- The Ordinance on Civil Contracts, in 1991;
- The Ordinance on Dwelling Houses, in 1991;
- The Ordinance on Exit, Entry, Residence, Travel of Foreigners in Vietnam, in 1992;
- The Land Law, in 1993;
- The Ordinance on the Rights and Obligations of Domestic Organizations, which are assigned or leased land, in 1994;
- The Ordinance on the Rights and Obligations of Foreign Organizations and Individuals leasing land in Vietnam, in 1994;
- The Ordinance on Copyright Protection, in 1994.
However, in this period, many civil relations were not fully governed by law, such as the property ownership, civil obligations, common civil contracts, damage compensation, civil relations involving foreign elements. Meanwhile, not a few provisions of civil law have failed to keep pace with the development of the social life.
Panoramically, the 1986-1995 period constituted the initial stage of “doi moi” (renewal) in Vietnam and the transitional period in the history of development of Vietnam’s civil law. In can be said that in spite of shortcomings and mistakes, which were hardly avoided then, Vietnam’s civil law in this period created an important premise for a breakthrough in Vietnam’s modern civil law, namely the promulgation of the country’s first Civil Code in 1995.-