>>Criminal regulations in "Quoc Trieu Hinh Luat " of the Le dynasty
>>The state and law in the early period of the posterior Le dynasty (1428-1527)
Lawyer TRAN THI TUYET
State and Law Research Institute
Most important among the civil law in “Quoc Trieu Hinh Luat” (The Penal Code of Royal Court of the Le dynasty) was the law on the land ownership regime.
The land ownership regime during this period existed in two forms: the State ownership (including the public ownership by the communes) and the private ownership. However, the State ownership always prevailed, restricting the public ownership by communes and the private ownership through different modes and legal provisions.
Following the establishment of the Le kingdom, the regime of State ownership of land was built into legal regulations of the State with new contents.
Like any feudal regime in Vietnam, the Le dynasty, also required by historical situation, had to build and strengthen the centralized feudal State with the regime of State ownership of land as its extremely important economic foundation that had to be always consolidated. Moreover, a powerful centralized State constituted a requisite for it to control and manage the land under the State ownership, to deeply intervene in the distribution of public land in villages and communes, than manipulate the development of the private ownership of land.
The regime of State ownership of land during the Le So reign existed in two main forms: “loc dien” (reward land) regime and “quan dien” (distributed land) regime.
After the fight against the Ming invaders (of feudal China) and their lackeys was crowned with victory, the Le So administration confiscated all the land formerly seized by foreign invaders and their henchmen, all plantations and feoffs of the Tran aristocrats who had died, waste land and land distributed through various reforms undertaken by previous regime of Ho Quy Ly. This helped increase the State-owned land fund, a larger part of which was distributed as rewards to mandarins with meritous services to the regime while the rest was for the establishment of plantations or added to the public land fund in villages and communes.
So, the “loc dien” regime was in its essence the rewarding of land to high-ranking mandarins and members of the royal clan by the king who, in his capacity as head of the feudal State, exercised the State’s supreme rights of ownership over the land. This regime was formulated during king Le Thai To’s tenure (1428-1433), long before the Le So time, but only until 1477 when Le Thanh Tong came to the throne could it be promulgated into complete regulations(1).
Under these regulations, the people given reward land were those among the top of the ruling class, and the amount and type of land given to them depended on their titles, positions, social status and closeness to the royal family (2).
The land under the “loc dien” regime was classified into two types: permanently allotted land and temporarily allotted land. The land of permanent allotment could be passed over to children and grandchildren. However, this type of land made up a very small proportion. Meanwhile, the land of temporary allotment accounted for most of the “loc dien” land, and the people who were granted this type of land were given the use rights only, not the ownership rights. After three years from the demise of the allottee, his/her children had to return all the allotted land to the king. If failing to do so, they would be dealt with according to law (Articles 343 and 345 of “Quoc Trieu Hinh Luat”).
In all circumstances, the Le So regime, represented by the king, always reserved its supreme rights of ownership over the land. The State could revoke already allotted land if the allottee was disloyal to the royal court or broke the law. Articles 342 and 372 of “Quoc Trieu Hinh Luat” clearly defined the penalties for people who had pledged or sold their allotted land and even for people who had helped in writing the sale contracts or acted as witnesses to those undertakings. The money gained from such sale as well as the land sold were confiscated and remitted to the public funds. The land allottees had to fulfill their annual tax obligations towards the State. Anyone who evaded tax or committed tax fraud, or delayed in paying taxes would be punished (Articles 351 and 373). All encroachments upon the public land and the products therefrom would be dealt with according to law (Articles 353, 358 and 372).
With the “loc dien” policy, the Le So regime could on the one hand protect the State’s supreme rights of ownership over the land so as to strengthen the centralized feudal administration and on the other hand develop the landlord class, having tightened the aristocrats’ and mandarins’ dependence on the king.
The public land in villages and communes was nothing but the derivative of the State ownership over such land. In principle, the king in the monarchical feudal regime of the Orient was the supreme owner of the whole land in the country. He assigned the communes to manage and use the land in the localities, which, in turn, had to fulfill their obligations to the State. Then, the communes were the actual holders of the ownership rights over the large area of land in the country. The State’s control of the villages and communes with respect to the land depended on the strength of the central feudal administration.
In order to tightly control the distribution and use of land in the communes, the Le So administration promulgated the “quan dien” (distributed land) regime in 1429, which was fully enforced during king Le Thanh Tong’s tenure.
In principle, every member of the commune was distributed land, but with different amount, depending on his/her title, position and social status (3). Such a distribution was done in every six years.
Through the “quan dien” policy, the then feudal State in fact confirmed its ownership rights over the communal land, moving one step toward depriving the communes of their actual ownership rights over the land. So, the communes were further turned into places where the feudal State performed their exploitation and the commune members became slaves, depending on the feudal State; the central feudal administration was further strengthened.
To protect the interests of the owner, namely the State, the laws of the Le So dynasty provided that the people given land under the “quan dien” regime hand to pay tax to the State. Paying not enough tax or delaying in tax payment was considered commission of crimes and duly punished (Article 346). The pledge or sale of land distributed under the “quan dien” regime was forbidden by the State. All violators would be punished (Article 342). All acts of encroaching upon public land or seizing land beyond the permitted quotas would be dealt with by law (Articles 343, 345 and 353).
Having consolidated and protected the State ownership over the land, the Le So feudal State could not help expanding the regime of private ownership of land in the interests of the ruling class, an important social foundation of the feudal State, so as to create conditions for the feudal regime to thrive.
By the end of the Tran and Ho dynasties, the landlord class was small but with a fairly developed regime of private ownership of land. And during the Le feudal time, the landlord class grew stronger, giving strong boost to the regime of private ownership of land. The “loc dien” regime, together with other policies on tax reduction for privately owned land, tax exemption for newly reclaimed land, or on the recognition of all reclaimed land to be the privately owned land, etc., helped increase the amount of land under the private ownership in the country.
The laws of the Le So administration widely recognized the sale and purchase of land, but on the principle of guaranteeing the rights of private owners.
Land under private ownership could be traded in or put to pledge. The definitely sold land could not be redeemed. The pledged land could be redeemed provided that the pledge term prescribed by law and the contract has not expired yet. The pledged land which is not yet redeemed should not be sold definitely to other persons (Articles 383 and 384). Anyone who sold land not under his/her ownership would be duly punished by law (Articles 382, 377, 378 and 379)... The law recognized the ownership rights of long-time possessors (Article 387).
The widespread sale and purchase of land, permitted by the State, led to the appropriation and encroachment of the private ownership rights and the public land, as well as the infringement upon the interests of the feudal State. Articles 345, 355, 356, 359, 360, 361, 362, 370... of “Quoc Trieu Hinh Luat” strictly forbade all acts of infringing upon the private ownership of land, acts of robbing people of their land or coercing people into selling their land, and other disputes over the land ownership.
To protect the private ownership of land and recognize the widespread land sale and purchase, “Quoc Trieu Hinh Luat” prescribed forms and conditions for selling, purchasing, pledging and borrowing land and assets. Under Articles 342, 366, 377, 378,..., such undertakings had to be done in contractual forms and with witnesses. The sale and purchase of land could be considered lawful only when they were conducted on the basis of voluntariness, equality and without coercion (Article 355).
Article 384 prescribed that the maximum term for a pledge of land was 30 years, during which the pledgors was entitled to redeem his/her land. If the pledgee refused, he/she would be fined. If it was beyond the prescribed duration and the pledgor still insisted on redeeming his/her land, he/she would be subject to sanction and not allowed to redeem the land.
To protect the interest of the creditors, the law stipulated the prescribed form for borrowings, namely the contracts, the maximum interest rate, the timelimit for debt payment, the amount of fines to be imposed on the debtors who failed to pay debts (Articles 587 and 588). In addition, the law also prescribed the amount of fines and the civil liability for compensation to damage caused by breaches of sale, purchase, lease or borrowing contracts (Articles 589, 590, 591, 592, 603...).
“Quoc Trieu Hinh Luat” recognized two forms of inheritance: inheritance under testament and inheritance at law (Article 388). Parents, spouses, children and heirs/heiresses (including adopted children of the same ancestrial line) were entitled to inheritance. Articles 374, 375, 376, 380, 381... prescribed in details cases of inheritance and the level of inheritance at law.
The part of land set aside for ancestrial worship always belonged to the paternal side. Under the law, the land for ancestrial worship made up 1/20 of the total area of land left by the deceased (Articles 390-391) and the sale and pledge of such land were strictly forbidden (Article 400). According to Confucian concepts, the powers of the male - the father, the husband, the eldest son - in a feudal family were absolute, and the interests of the ancestrial line was of utmost importance and eternal. The protection of the interests of the ancestral line and the big patriarchal family were considered matters closely relating to the public order and the social foundation. So, as prescribed by law, the eldest son (or his eldest son) in the family line were entitled to inheritance of the worship land (Articles 388-389). If the eldest son was a disabled or spoiled person or an idiot, being incapable of handling the worship, an elder son or the eldest grandson of the eldest son, or the eldest grandson of the elder son could be a substitute, as prescribed by law (Articles 389, 392, 393, 398...). Also under this law, the worship land could be entrusted to the eldest daughter if there was no eldest son (Article 391). Together with some other provisions on the property relations between the husband and wife (*), the provisions on the daughters’ rights to inherit land and other property of the parents as the sons (Article 391) reflected the progressiveness and positiveness of “Quoc Trieu Hinh Luat” in improving the social status of the female in the feudal society.
Besides, “Quoc Trieu Hinh Luat” also contained other civil provisions relating to the liability to compensate for damage caused (Chapter V on the other minor offenses).
The civil law in “Quoc Trieu Hinh Luat” has reflected the reality of the then Vietnamese society, a prosperous feudal society. At the same time, they contributed to creating legal basis for the feudal State to skillfully and properly handle the relationship between ensuring necessary and sufficient conditions for the consoli-dation of the centralized feudal government and protecting the prero-gatives of the ruling class, thus creating conditions for the regime of private ownership of land to develop.-
Footnotes:
(1) According to - “Lich Trieu Hien Chuong loai tri” (Bioliology of Monarchical Publications) by Phan Huy Chu.
- “Kieu Van Tieu Luc” by Le Quy Don.
(2) The maximum amount of land granted was 2,090 “mau” (each “mau” is equivalent to 3,600 m2) for relatives and closest associates of the king). The minimum amount was 80 “mau”.
(3) Maximum: 11 rations
Minimum: 3 rations
(*) This issue will be presented in details in a writing on the legal provisions on marriage and the family.-