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Official Gazette

Saturday, January 23, 2021

Legal system developments in 2004-09

Updated: 10:37’ - 25/03/2010

Associate Prof. Dr. Ha Thi Mai Hien
State and Law Institute

The past six years saw Vietnam’s admission to the World Trade Organization as its 150th member, 10 years of ASEAN membership, and nearly 25 years of national renewal. This period has marked an important turning point in the process of building and improving market institutions for international integration and cooperation.

In this time, the country’s legal system has developed in various respects. Developments can be seen in theoretical perceptions of the state and law and the legal system.

The viewpoints and orientations for building a socialist state governed by law, of the people, by the people and for the people, as recognized in the Constitution, demonstrate the process of renovation of our thinking, closely linked with the process of comprehensive national renewal and stemming from political, economic and social premises and the trend of international economic integration. These viewpoints have served as the basis for a strategy for perfecting the legal system with specific and clear objectives: To build a complete, consistent, feasible, public and transparent legal system, with a focus on institutions of a socialist-oriented market economy; to fundamentally renew the lawmaking system; to bring into play the role and effect of law in managing society, firmly maintaining political stability, promoting economic development and international integration, building a clean and strong state, and guaranteeing human rights and citizens’ freedom and democratic rights.

The legal system has become more and more complete and practical, effective and feasible. In over 20 years of renewal, the State has created and incrementally improved a legal system that ensures national development within the framework of socialist legality, ensures the proper development of social relations and formation of a stable legal order, contributing to creating a state governed by law as it looks like today.

The legislative process has been sped up with increasing quality. Not only have laws on organization and operation of the state apparatus been improved, but those on business, trade, finance, credit, land, intellectual property, education, health and other social fields, as well as codes on administrative and judicial procedures, have also been passed to meet the requirements of diversified relations in a market economy which has become more deeply and comprehensively integrated in the global and regional economies.

The legal system has also become more democratic, humane, public and transparent. Laws have been passed with the primary and direct role of regulating social relations. The law on the process of formulating, promulgating and publicizing regulations has been increasingly improved to ensure democracy in proposing legislative initiatives and public participation in the lawmaking process, including experts in the drafting and review stages. Publicity and transparency of the legal system have enabled people to access the law and legal services in a faster, simpler and cheaper manner. The State has widely distributed Cong Bao (the official publication of legal documents) and posted laws and regulations (including drafts) in the mass media. The Supreme People’s Court has made available to the public cassation rulings of its Judges Council. The State has simplified administrative procedures, enacted more laws on judicial proceedings and assurance of social security, introduced better law enforcement mechanisms and reformed criminal policies towards reducing penalties.

The legal system has also been made more consistent with international and regional legal values. All new laws reflect the principle of respect for international commitments and agreements. On the other hand, international cooperation in the legislative process and absorption of human values in the lawmaking process on the basis of harmony between traditional and modern cultures have been constantly applied to the process of drafting and applying laws. This is expressed in the compatibility between the objectives and principles of Vietnam’s legal system and those of the ASEAN charter and other international documents. Vietnam has been perfecting its legal system in conformity with WTO commitments on intellectual property, taxes and investment and reformed the systems of administrative and judicial procedures and arbitration.

During 2004-09, the National Assembly passed 103 laws and codes, in addition to great numbers of regulatory documents issued by its Standing Committee, the Government and other state agencies. The National Assembly passed merely 32, 32 and 41 documents (constitutions, codes and laws) in the periods of 1946-1986, 1987-1992 and 1992-1997, respectively.

Laws passed during 2004-09 reflect Vietnam’s strategic orientations for building and perfecting its legal system.

At the same time as renewing and constantly improving the methods of Party leadership and ensuring Party operations to comply with the Constitution and laws, as well as the process of making and perfecting laws on the organization and operation of the state apparatus, the Fatherland Front, mass organizations, and social institutions and organizations, the laws on organization of the National Assembly, the Government, People’s Courts, People’s Procuracies, People’s Councils and People’s Committees have been continuously improved. Many laws concerning operations of state agencies have also been passed, such as the 2008 Law on Promulgation of Legal Normative  Documents, the 2004 Law on Promulgation of Legal Normative Documents of People’s Councils and People’s Committees; the 2007 Anti-Corruption Law and the 2008 Law on Cadres and Civil Servants.

Under its law-making strategy, the Vietnamese State has built and perfected the legal system on organization, personnel and operations of state administrative agencies in line with the objectives and requirements of administrative reforms. The Government has focused on the function of macro-management and direction in order to properly perform its role as the highest state administrative body. In 2010, administrative agencies will no longer directly manage businesses and will concentrate on their administrative functions as provided by law. A number of public services will be socialized (for example, the bailiff service currently provided in Ho Chi Minh City). Reform of administrative procedures is an important component of the master plan on public administrative reform. Project 30 on simplification of administrative procedures in all fields of state management during 2007-10, issued together with Prime Minister Decision No. 30/QD-TTg of January 10, 2007, has been carried out. In the end of the first phase of implementation, lists of administrative procedures applied by ministries and provincial-level administrations have been made available to the public.

Civil and criminal procedure codes have laid down fundamental principles on organization and operation of judicial bodies, with courts as the center, ensuring independent, lawful, timely and strict trials; defining jurisdictions between courts of first-instance and appeals in line with the two-tier trial principle, upholding the principle of self-determination by involved parties in civil procedures and the principle of argument and counter-argument in judicial procedures in general. The 2004 Civil Procedure Code not only recognizes and upholds the principle of self-determination of involved parties but also re-defines the roles and positions of courts, people’s procuracies and other participants, such as defense counsels, public notaries and judicial surveyors, in civil proceedings. The 2008 Law on Enforcement of Civil Judgments has strengthened legal grounds for assuring enforcement of people’s and businesses’ rights of ownership and freedom to do business.

Human rights and democracy

Integration of gender issues and assurance of gender equality has been an important requirement in the law-making process. The Law on Gender Equality and the Law on Prevention and Combat of Domestic Violence have been enacted.

The Law on Intellectual Property (revised in 2009), the Law on Real Estate Business and the Law on Housing have been promulgated to perfect the system of state protection of legitimate rights and interests of citizens and the regime on responsibilities of state agencies, particularly courts, in protecting freedom and democratic rights.

The 2007 Law on Legal Assistance, the 2009 Law on State Compensation Liability, the 2009 Law Amending a Number of Articles of the Penal Code and the 1998 Law on Complaints and Denunciations and its 2005 amendments have consolidated the legal foundations for assuring human rights and citizens’ freedom and democratic rights.

Importance has been attached to perfecting the institutions of a socialist-oriented market economy, particularly laws and regulations on ownership and business freedom on the principle that citizens may do anything that is not banned by law.

The Laws on Enterprises, Investment, Housing and E-Transactions, all passed in 2005, have provided foundations for forming various markets. Other laws on natural resources and environmental protection have been enacted on the principles of strict management, sustainable development and harmony between use and protection of natural resources.

Laws concerning education and training, science and technology, health, culture and information, sports, ethnicities, religions, population, families, children and social policies have included the 2004 Law on Child Protection, Care and Education, the 2005 Law on Education, the 2008 Law on Biodiversity, the 2008  Hi-Tech Law, the 2007 Law on Prevention and Combat of Contagious Diseases, the 2006 Law on Social Insurance and the 2009 Law on Medical Examination and Treatment. 

A Law on Child Adoption is being drafted and is expected to be presented to the National Assembly for passage in 2010.

The legal system on national defense and security has been constantly built and perfected. The Law on National Security was promulgated in 2004, the Law on National Defense in 2005, the Law Amending a Number of Articles of the Law on Military Service in 2005, the Law on People’s Public Security Forces in 2005 and the Law on Amendments to the Law on Officers of Vietnam’s People’s Army in 2008.

The Law on Amendments to the 1999 Penal Code has reflected Vietnam’s criminal policy on the basis of bringing into full play the strength of the entire society in crime detection and prevention, restricting the death penalty, reducing prison sentences and expanding application of fines and non-custodial reform.

Recent legislative work has reflected priorities in the formulation of legal documents and institutions to protect an independent and self-reliant economy in the process of international integration. Vietnam has expeditiously completed its legal system in response to WTO accession requirements, realization of commitments to ASEAN, full participation in AFTA in 2006 and ratification of the ASEAN Charter toward an Asian economic community by 2020.

Concerning the settlement of economic disputes in accordance with international commercial practices (mainly through arbitration and reconciliation), Vietnam passed the Law on Mutual Legal Assistance in 2007 and is elaborating a Law on Commercial Arbitration.

But Vietnam’s legal system still reveals a number of weaknesses.

The enforceability and effectiveness of laws remain very low. While more and more laws have been promulgated, many of them have been revised too often, wasting time, money and social resources. This can be attributed to the fact that Vietnam’s economy is in transition with unstable economic and social relations. However, too many changes have made the legal order unstable and laws difficult to enter into life. Among various causes of the ineffectiveness of the legal system, the primary one is that the legal system is not coordinated, complete or systematic. The deep root of this problem is that perceptions of law and the legal system are unscientific. While much attention has been paid to legislative work, fundamental changes in thinking and theory, which have just been demonstrated at the macro level, in policy and law, are difficult and slow to enter into life.

A socialist state governed by law, of the people, by the people and for the people, requires laws to reflect the will and aspirations and serve the interests of an overwhelming majority of the working people. On the other hand, in the formulation and application of laws, it is important to be aware of the role of law and dialectical relations between law and social life and other parts of the superstructure political and legal ideas. Most legal documents have been drafted through a democratic process, taking into account public opinion. Yet, reality shows that many agencies’ involvement has made final drafts fail to reflect the actual requirements of life. Therefore, it is necessary to add regulations on verification of draft laws, e.g., on forming verification committees and councils consisting of experts in related fields.

In addition, the rich diversity of life should be taken into account to ensure the flexibility of law in addition to its enforceability and strictness. Since law is for universal application, it is impossible to require it to be too specific. Legal norms, no matter how detailed and specific, must be of a general nature. For example, too specific provisions in the Civil Code on bank interest rates or in the Penal Code on the value subject to prosecution (VND 500,000 previously and VND two million now) is too rigid, arbitrary and impractical. A thief of a flock of 100 ducks valued at under VND two million cannot be prosecuted. But for farmers in many localities, a flock of 100 ducks is a valuable asset for their lives. In many rural and mountainous areas, petty thefts have tended to increase.

The strictness and deterrence of law must be associated with education about the sense of respect for and observance of law and increase of law-enforcing measures. Close combination of educational measures and penalties is a requirement of regulation by law. Therefore, the effect of law does not lie in laws and codes themselves but in enforcement institutions and organizations.-

VNL_KH1 

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