Civil law-making situation in Vietnam in the period from 1995 till now
The passage of the first ever Civil Code of the Socialist Republic of Vietnam in 1995 marked an important event in the legal life of the country, having ushered in a new period in the history of Vietnam’s modern civil legislation.

>>Civil law making in Vietnam during the 1945-1995 period

Pham Diem

State and Law Institute of Vietnam

The passage of the first ever Civil Code of the Socialist Republic of Vietnam in 1995 marked an important event in the legal life of the country, having ushered in a new period in the history of Vietnam’s modern civil legislation.

Right in 1986, Vietnam started the process of “doi moi”, the national comprehensive renewal, with economic renewal as the core, which required a new appropriate legal system, particularly and urgently a civil code. Yet, the promulgation of such civil code was unable then as it was truly a big and complicated task especially at a time when the country just embarked on the cause of national renewal, with many new social relations, particularly civil relations, having arisen while Vietnamese lawmakers had little experiences in this domain.

After nearly ten years with many drafts commented time and again by State officials and employees as well the general public, the Civil Code was passed on October 28, 1995 by the IXth National Assembly at its eighth session and promulgated on November 9, 1995 by the State President’s order.

The Civil Code, which has come into force as from July 1, 1996, composes the Preamble and seven parts.

Its Preamble has set forth basic viewpoints, ideologies and orientations for prescription of civil relations in the Code.

Part One- General Provisions- consists of 8 chapters with 171 articles covering the following major contents:

- The determination of legal status of individuals, legal persons, households, cooperative teams in their capacity as subjects participating in civil relations.

- The prescription of basic principles in the establishment and exercise of civil rights and obligations, the settlement of civil disputes and the application of civil law.

- The prescription of individuals’ personal rights.

- The prescription of civil transactions, representation, time limits, statute of limitations.

The provisions in Part One are of general character, prevailing the entire content of the Civil Code, which are concretized in all subsequent parts of the Code.

Part Two- Property and Ownership Rights- comprises seven chapters with 113 articles.

In all regimes, the modes of possessing material wealth and ownership are of decisive significance in the social life. For this reason, the Civil Code has put the question of property and ownership rights immediately after Part One in Part Two which touches upon the following matters:

- The basic principles of ownership rights.

- Types of property, forms of ownership.

- Contents of ownership rights.

- Bases for establishment, termination and protection of ownership rights.

- The limit of ownership rights, owners’ obligations when exercising ownership rights.

Regarding the ownership right institution, the striking spirit and objective of the Civil Code are to concretize the ownership regime prescribed in the 1992 Constitution, that is the ownership regime in a socialist-oriented multi-sector market economy with multi-forms of ownership, with a view to encouraging the development of property, production, business and attracting economic investment. Moreover, this Part’s provisions on property and ownership rights have created a legal foundation for specific regulations in subsequent parts of the Code as well as other legal documents on property relations.

Part Three- Civil Obligations and Civil Contracts.

With 349 articles arranged in five chapters, this Part has the largest number of articles in the Civil Code.

On civil contracts (the principal, common and lawful grounds for giving rise to civil obligations), the Code contains general provisions on civil contracts, types of common civil contracts in the daily civil life.

On civil obligations, it has provisions on:

- Grounds that give rise to civil obligations.

- Bases for establishment, performance, change or termination of civil obligations.

- Measures to ensure the performance of civil obligations as well as civil liabilities in general and civil liabilities for every separate type of civil obligation.

Civil obligations constitute a type of “boisterous” civil relations concerning the transfer of property and services from one subject to another, with diversified and complicated objects of civil obligations, which are hardly prescribed specifically and adequately. Therefore, the provisions in this Part are mainly framework provisions of qualitative character. They have constituted the basic principles guiding the establishment, performance and termination of civil obligations:

- Individuals, legal persons and other subjects are free to enter into civil contracts provided that such contracts are not contrary to law and social ethics and must be based on mutual equality and equality before law.

- The obligors must perform their obligations honestly in the spirit of cooperation, compliance with commitment, non-contravention of law and social ethics.

- Those who enjoy benefits without grounds must return them.

- Those who infringe upon civil rights of others must bear civil liability and if causing damage, they must pay compensation therefor.

The basic principles and provisions in Part Three of the Civil Code aim to ensure the legitimate rights and interests of subjects participating in the civil relations, to protect the interests of the nation and citizens, to boost civil exchanges at home and abroad, contribute to liberating all productive forces with a view to promoting socio-economic development in Vietnam.

Part Four - Inheritance - comprises four chapters with 56 articles dwelling on the following matters:

- The transfer of inheritances from the decedents to the alive persons, the persons bequeathing inheritances and the persons enjoying the inheritances.

- The principles and procedures for transfer of inheritances.

- The basic principles of inheritance being the equality and the disposal rights of the bequeathers and the heirs.

- Inheritance under testament and forms of testament.

- Cases of inheritance at law, heirs and heirs’ ranks, inheritance by substitution and inheritance by relevant persons.

Part Five - Provisions on the Transfer of Land Use Rights - comprises six chapters with 55 articles. Under Vietnam’s Constitution, land is classified as a special type of property owned by the entire population and managed by the State. Individuals and households, as provided for by the Land Law, may use land in a stable manner and for a long term, being given the five following rights: to transfer, exchange, lease, sublease and inherit the land use rights. When they are established under the provisions of the Land Law, the land use rights shall be particular civil rights and governed by civil laws. Due to such peculiar feature of the land regime in Vietnam, the Civil Code has not included this issue in Part Two- Property and Ownership Rights, but arranged it in a separate part- Part Five: Provisions on Transfer of Land Use Rights, which prescribes the principles and contracts for land use right transfer as well as the inheritance of land use rights. The provisions on land use right transfer constitute a new and particular institution in Vietnam’s civil law, which aim to protect the rights of land users as well as the interests of the entire population and ensure the State’s control over this particular type of property.

Part Six - Intellectual Property Rights and Technology Transfer - consists of three chapters with 81 articles. It spells out the basic rights of creators of “intellectual products”, a type of intangible property, as well as the personal rights and property rights of authors. It stipulates the order and procedures for transfer of “intellectual products” from one subject to another through contracts on the use of works and contracts on technology transfer. Meanwhile, other matters such as procedures for registration of copyrights and industrial property, handling of violations, have been left out by the Civil Code but governed by administrative legal documents.

Part Seven - Civil Relations Involving Foreign Elements - is structured to include only one chapter with 23 articles prescribing the competence for, and laws applicable to, settlement of civil disputes involving foreign elements. According to the Civil Code, civil relations, which contain one of the following three factors, shall be considered civil relations involving foreign elements:

- Involving foreigner(s) or foreign legal person(s);

- Civil relations arise, change or terminate overseas.

- The property related to such civil relations exists overseas.

The provisions in Part Seven aim to contribute to materializing the open-door policy, intensifying international integration and cooperation of Vietnam.

In a nutshell, the Civil Code is the biggest code (in terms of the number of articles and governing scope,...) and the central law in the legal system of Vietnam. All civil relations, which were previously regulated by separated sub-law documents, have been gathered and codified in a comprehensive manner in the Civil Code. It can be said that the emergence of the Civil Code has constituted a leap forwards in the process of making civil laws in particular and renewing the legal system in general in Vietnam.

Apart from the Civil Code, the Vietnamese State has promulgated a number of other legal documents to supplement and concretize a number of provisions of the Civil Code, including:

- The National Assembly’s October 28, 1995 Resolution on enforcement of the Civil Code, which listed the legal documents to have been invalid once the Civil Code came into force and provided the scope of application of the Civil Code to the settlement of civil disputes having arisen before the Civil Code took effect.

- The National Assembly’s August 20, 1998 Resolution on civil transactions regarding dwelling houses, which had been established before July 1, 1991, which was of important significance for the settlement of disputes related to civil transactions regarding dwelling houses before July 1, 1991 (the time when Vietnam’s first Land Law was promulgated).

- The Law amending and supplementing a number of articles of the Law on Land Use Right Transfer Tax of 1999.

- The 1998 Law on Vietnamese Nationality.

- The 2000 Ordinance on Entry, Exit and Residence of Foreigners in Vietnam.

After nearly ten years’ enforcement, the Civil Code now needs to be revamped to suit the constantly changing socio-economic situation, the increasingly stable market economy and the unceasing development of diversified and complicated civil relations in Vietnam as well as the country’s expanding international relations and cooperation. The amendment and supplementation of the Civil Code have been conducted along the following main directions:

- It should be added with many provisions on civil relations in the production and business domains.

- The State’s intervention in civil relations should be minimized.

- Experiences of other countries and international practices should be referred to.

In short, the basic orientation is to broaden its regulation scope, making it really the central law in Vietnam’s modern legal system and contributing to the process of building a civil society, a civic society and a law-governed state in Vietnam as well as to international integration and cooperation.-

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