>>Vietnam’s feudal laws and the protection of the women’s interests
>>Relationships between parents and children under Vietnam’s ancient laws
Tran Thi Tuyet
State and Law Research Institute
Under the Vietnamese ancient laws, the property inheritance relationships occupies an important position in the legislation on marriage and family. The inheritance institutions not only adhered to the fundamental principles of the Confucian family but also reflected the particular identity of the Vietnamese nation. Such relationships only arose in a number of cases and for certain types of property.
Usually, the inheritance institutions in Vietnam’s ancient laws regulated three basic family relationships: the inheritance between husband and wife; the inheritance between parents and children; the inheritance among children. They governed the immovable property (land and houses), the most valuable property and the criteria for being rich or poor… in such an agricultural society like Vietnam’s, not other types of property (movables) which were considered less valuable.
Vietnamese ancient laws acknowledged that the family property were created from three sources:
1. The husband’s personal property inherited from his own family.
2. The wife’s personal property inherited from her own family.
3. The common property created jointly by the husband and the wife during their married life.
a/ The inheritance relationships between the husband and the wife
In the Confucian family, the patriarch decided everything concerning the property while other members had to obey his decisions. Yet, under the ancient laws of Vietnam, the wife did not fully lose her rights to the family property. They stipulated that if the wife did not sign in a contract on the sale of family property (immovable), the contract would be considered invalid.
However, such laws affirmed that spouses were not allowed to inherit each other’s property. In cases where the wife (or the husband) died issueless, her (or his) personal property would be halved. One half was given to the husband’s family (or the wife’s family) for worshipping, which was managed by the parents or the heir. The other half was given to the living husband (or wife) as a means of support for the rest of his (or her) life, who, however, did not have the ownership right over such part of property. When such husband (or wife) died, such part of property would be returned to the wife’s family (or the husband’s family). If the husband died and the wife remarried, such part of property had to be returned to the husband’s family. But that was not the case for the husband who remarried after his wife’s death.
For the common property created jointly by the husband and the wife during their married life, it would also be divided into two equal parts. One part was given to the living spouse as his/her personal property (with the owner-ship right). The other part would be subdivided as follows: 1/3 was given to the dead spouse’s family for worshipping while 2/3 to the living spouse as a means of support for the rest of his (or her) life, but without the ownership right. When such spouse died, this 2/3 part of the property was returned to the family of the spouse who had died first. In cases where the husband died and the wife remarried, such 2/3 part of the property had to be returned to the husband’s family. This was, however, not the case for the husband who remarried after his wife’s death.
These contents were inscribed in Article 375 of the “Quoc Trieu Hinh Luat” (The Penal Code of the Royal Court) and paragraphs 258 and 259 of the “ Hong Duc Thien Chinh Thu”. This shows that the ancient laws fairly recognized the wife’s contributions to the common family property and protected her legitimate ownership over the common family property jointly created by the husband and the wife.
b/ The inheritance relationships between parents and children
Under the patriarchal regime, the children, when living together with their parents, had no rights over the family property, being totally dependent on their parents and submitting to the latter’s decisions. However, the ancient laws prescribed the eligible ages for children to separate the family property and set up their own families. For such cases, the parents fully respected their children’s personal property and rights to ownership thereover. Many provisions defined different remedies against the infringement upon the legitimate owner-ship rights of citizens and offspring, for instance, Articles 282, 283, 286,377, 379… of Quoc Trieu Hinh Luat, and Items 241, 242, 244, 245, 248, 249… of the “Hong Duc Thien Chinh Thu”.
Children in the family were entitled to inherit all property of their parents. Under the ancient laws, children were considered the first-rank heirs and their right to inherit their parents’ property was absolute and the State strictly prohibited and severely punished acts of infringing upon such inheritance right (Articles 377 and 378 of Quoc Trieu Hinh Luat. If a child was still young (under 15), the father, mother or a relative (if both the father and the mother died) had to manage such child’s property till he or she grew up.
In patriarchal families, besides their legitimate wives, the husbands might marry concubines and maids. Therefore, children of the legitimate wives, concubines or maids were all the legitimate children who were entitled to inherit their parents’ property. Articles 374 and 375 of Quoc Trieu Hinh Luat specified the rights to property inheritance between their parents and the children.
Where the father or mother died, his or her personal property was divided into two equal parts. One part was given to the living mother or father as a means of support, and when she or he died, such part of property was bequeathed to the children. The other part belonged to the dead person as bequest to the children.
The property jointly created by the parents during their married life was also halved. One half was bequeathed to the children while the other half was reserved for the living father (or mother) as a means of support, which would also bequeathed to the children when such father (or mother) died.
If the living father (or mother) remarried, then died without any child of the second marriage, the property would be bequeathed to children as follows: For the property acquired from the first marriage as prescribed by law, it would only be used as a means of support, and when he (or she) died, 2/3 of such property would be deducted for children of the first marriage while the remaining 1/3 was left to the wife (or husband) of the second marriage.
For the property created during the second marriage, it would also be divided into two equal parts. One part was bequeathed to children of the first marriage and the other part was left to the living wife (or husband) of the second marriage as her (his) personal property (with the full ownership right). This once again shows that the ancient laws acknowledged the equal contributions to the common family property by the husband and the wife, and protected the interests of the women (the wives) as well as children in the patriarchal families.
c/ The inheritance relationships among children
As analyzed above, children were the only heirs of their parents’ property. Only when a couple had no children of their own would such property belong to the parents or relatives of either spouse. So, the question was that on what principles the parents’ property would be divided among children? The answer can be found in many articles of Vietnam’s ancient laws, particularly those promulgated under the Le dynasty.
Articles from 388 to 400 of Quoc Trieu Hinh Luat and a number of paragraphs of Hong Duc Thien Chinh Thu clearly prescribed the principles for division of parents’ property bequeathed to their children.
First of all, with regard to the cult-portion heritage: The cult-portion land was the land used exclusively for the worshipping of ancestors, grandparents, parents. This is a particular feature of Vietnamese customs and practices. Hence, not any country in the Orient had law provisions on bequeathal of cult-portion land to children and grandchildren. For the first time, Quoc Trieu Hinh Luat of Vietnam clearly defined the inheritance, use and protection of cult-portion land and property with strict remedies therefor.
Under such law, before the division of the property for inheritance, 1/20 of the total property (first and mainly land) would be deducted and used as the cult-portion heritage which, in principle, would be kept by the eldest son of the family. In order to ensure the eternal existence of the most valuable property of the family and lineage within the paternal side, only the eldest son of the first wife, regardless of his age and social rank, or his eldest son if he died, was entitled to inherit the cult-portion land.
Article 389 of Quoc Trieu Hinh Luat clearly stated: “If the eldest son of the first wife dies sonless, the second eldest son would be allowed to inherit the cult-portion land. If the first wife has no sons, a kind and virtuous son among the sons of concubines and maids will be selected for the inheritance. If the eldest son of the first wife gets spoiled or disabled, being unable to worship the ancestors, such must be reported to the local mandarin for the replacement of the heir. In case of having no sons, the eldest daughter in the family would be entitled to inherit such land, but only for use in one generation. When she died, the cult-portion land would be returned to the paternal side for management. This regulation aimed to ensure that the cult-portion heritage would be constantly passed down from generation to generation on the paternal side and that the ancestors would be continuously worshipped.
Excluding the cult-portion land and property, the remainder of the family property would be bequeathed to all children, regardless of whether they were sons or daughters, children of the first wife or concubines and maids (provided that they were recognized as legitimate children by their father), and adopted children. However, the property was divided unequally among children. Children of the first wife got the largest and equal shares and children of concubines and maids were equally given smaller shares, regardless of their sex, though the law failed to specify how much larger and how much smaller the shares were. An adopted child was given a share equal to 1/3 of the share enjoyed by an offspring. In cases where there were no offspring, the adopted children would be entitled to inherit the entire property of the parents.
To be recognized as an adopted child and entitled to inherit the property, such person had to live with the adoptive parents since his early childhood (aged over 3 and under 7), to have papers certifying this, to have his name recorded in the household registration book of the adoptive parents and had well discharged his duty to take care of the adoptive parents like his natural parents (Article 380 of Quoc Trieu Hinh Luat and paragraphs 270 and 271 of Hong Duc Thien Chinh Thu).
If an offspring or a legitimate child committed the crime of being undutiful to his/her parents, he/she would be stripped off the right to inherit the property (Article 2 of Quoc Trieu Hinh Luat and paragraph 295 of Hong Duc Thien Chinh Thu).
Another principle for property inheritance institutions in the ancient laws of Vietnam was that the property division had to ensure the unity and mutual love among brothers and sisters in the family. The legislation during King Le Thanh Tong’s time clearly stipulated: The parents, when getting old, must write the testament and the clan head shall have the responsibility to divide the property equally according to the testament and to law.
The legislation of the Le dynasty even permitted children to re-divide the property which has been already decided in the testament “till the agreement is reached in the family” (paragraph 102 of Hong Duc Thien Chinh Thu). On the other hand, the laws of the Le dynasty severely punished any person who sued his/her brothers and/or sister about the division of inheritance property. Such person would be penalized with 80 canings and corvee labor, and have his/her divided land share recovered (Paragraph 78 of Hong Duc Thien Chinh Thu).
The property inheritance was effected mainly according to testaments and laws and to some extent, particularly before the 15th century, to the long-standing traditions and practices of the Viet community. With the above-mentioned principles and contents, the ancient laws of Vietnam proved to be flexible and at the same time strict and severe in this respect with a view to ensuring the State disciplines and laws as well as the family unity, a precious tradition of the Vietnamese nation.-