>>Civil law in "Quoc Trieu Hinh Luat"
>>Criminal regulations in "Quoc Trieu Hinh Luat " of the Le dynasty
Master of Law NGUYEN VIET HUONG
State and Law Research Institute
Until the 15th century, Confucianism became theorthodox ideological system in Vietnam. The Vietnamese feudal class wanted to institutionalize through the work of legislation the Confucian ideology and concepts, making the Confucian tenet a common code of conducts binding to the whole society. The Confucian ethics highly praised the moral philosophy of “tam cuong” (three feudal relationship: the king and subject, father and son, husband and wife) as the three dominating bonds that constituted the foundation of the social ethics and the norms to determine other social relations; hence they had to be well protected. That two of those three relationships covered matters relating to the marriage and family testified to marked development of the legislation on the marriage and the family during that period.
In “Quoc Trieu Hinh Luat” - a general code promulgated during king Le Thanh Tong’s tenure - the legislation on marriage and the family occupied an important position with 70 of the total 722 Articles, which were presented largely in Chapter “Ho Hon - Dien San” (The Family and Marriage - Land Property) as well as a number of other chapters such as “Danh Le” (Appellation); “Huong Hoa” (Cult-portion of heritage entail); “Dao Tac” (Robber and Thieves); “Tap Luat” (Miscellaneous legislation). The provisions on marriage and the family in Quoc Trieu Hinh Luat were presented in the form of penal law accompanied by penal measures. The code touched on many issues relating to marriage and the family such as the question of marriage, marital formalities and ceremonies; cases where marriage was forbidden; the personal and property relationships between husband and wife during and after the marriage; forms of marital termination; the personal and property relationships between parents and children; child adoption; the legal relationships between other members of the family, etc.
So, the scope governed by the legislation on marriage and the family in Quoc Trieu Hinh Luat was fairly large due the then feudal large concept on the family as a collective in which members of several consecutive generations (the ideal family was “Ngu dai dong duong”, meaning people of five generations live under the same roof) live together.
However, the area covered by the marriage-family legislation in Quoc Trieu Hinh Luat was restricted. With the patriarchy prevailing in the then marriage-family regime, all the relationships in the family were settled by the family members themselves on the basis of absolute obedience to the opinion of the head of the family without any intervention by the law which only handled acts in the marriage-family relationship that directly affected the social order, the social ethics and the power of the patriarch.
Here, in this writing we would like to present some basic contents of the marriage-family legislation in Quoc Trieu Hinh Luat.
1. General principles
Though Quoc Trieu Hinh Luat contained no Articles prescribing in details the general principles of the marriage-family legislation, all of its provisions thereon testified to the fact that the marriage and family relationships were regulated by law according to the three following principles:
- The principle of non-free marriage;
- The principle of inequality between husband and wife;
- The principle of promoting the authorities of the parents, the husband, the first wife.
In fact, all these three principles reflected the idea of respecting the absolute power of the patriarch in the feudal family.
Marriage, according to the feudal concept, was a kind of relationship built on the basis of the interests of the family and the ancestrial line. The main objective of the marriage was to maintain the bonds between two ancestrial lines, to worship the ancestors and carry on the lineage. Therefore, the entire question of marriage had to be considered by the patriarch, excluding the personal freedom in marriage. The law makers of the Le dynasty considered the free marriage and divorce illegal acts that contravened the moral principle that “children must sit where their parents put them” (Articles 310, 314 of Quoc Trieu Hinh Luat). The marriage had to be decided by the parents of both sides or the patriarch (head of the family line or chief of the hamlet). The feeling and choice of the couple were never taken into account as the main factor in the marriage. Divorce was a must once the interests of the family and the ancestrial line were threatened. The law prescribed 7 cases where a husband had to divorce his wife: if she was barren, wicked, jealous, lustful, garrulous, committed thievery or robbery, showed no respect for the parents. On the other hand, the husband was not allowed to divorce his wife in the three following cases even when she had committed one of the seven above-mentioned “sins”: The wife was in mourning for the husband’s next of skin for three years; when married the couple were poor but later became rich; if divorced, the wife was going to have no relative. Though voluntary divorce permitted by law in some exceptional cases (as prescribed in Articles 308 and 333 of Quoc Trieu Hinh Luat), it was still decided by the parents.
The legislators of the Le dynasty also considered the inequality a basis to make legal regulation of the husband-wife relationship in the marriage. A series of provisions in Quoc Trieu Hinh Luat (Articles 221, 333, 401, 477, 481, 482...) showed that in the relationship between husband and wife, the wife, while enjoying few rights, had to perform more obligations, including some for the wife only (the obligation to be faithful; the obligation to mourn for the husband...). The wife had no rights to act as the husband; therefore, in cases where the same fault was committed by both, she would receive more severe blame or punishment than her husband. One could also find in Quoc Trieu Hinh Luat some provisions praising to a certain extent the women’s role in the family life (the provision on the division of property in Article 375 of Quoc Trieu Hinh Luat; the provisions on the wife’s right to request a divorce in Articles 333 and 308, etc.) However, this was reflected only in some provisions, and utterly not in the husband-wife relationship. It also in no way reflected the then legislators’ desire for the equality between husband and wife.
In the feudalists’ thinking and concept, the ideal model in the family relationship was the absolute obedience by the junior to the senior. That the prominence was given to the authority of the parents, the husband and the first wife became a legal principle governing all relationships in the family. Under the provisions on marriage and the family in Quoc Trieu Hinh Luat, the parents, the husband and the first wife were given special powers while the other female and the junior in the family had to shoulder all burdens and obligations.
2. The marital institution
As mentioned above, the marriage, in the feudalists’ thinking, was not the question of only the male and the female involved but an event of paramount importance epitomizing the ties between the two families and two ancestral lines. It was directly related to the basic concepts and moral philosophies that needed to be protected. Therefore, the legislators of the Le dynasty paid special attention to the marital institution, setting many detailed legal provisions on marital matters such as conditions for marriage, forms of marriage.
Under the provisions in Quoc Trieu Hinh Luat, a marriage was considered lawful if it met the following two conditions simultaneously:
a) It was baptized by the parents
The parents’ consent was a basic and absolute condition for a marriage to be lawful while the involved couple’s agreement and will were not considered the essential condition. Article 314 of Quoc Trieu Hinh Luat defined: “A couple who live together as husband and wife before marriage, which should be performed first with the wedding presents sent to the girl’s parents (or to the patriarch of the girl’s ancestral line or the village administration if the parents died), shall be subject to warning and the payment of a sum of money to the parents (or the head of the ancestrial line or the village administration if the parent died) for their forgiveness, and the girl is subject to 50 whippings.” So, marriage had to be necessarily consented by the parents or, if the parents died, by the most senior members of the family line or by the local authorities.
b) Cases where marriage is forbidden
Under Articles 316, 317, 318, 319, 323, 324, 338 of Quoc Trieu Hinh Luat, marriage shall be forbidden in the following cases:
- Where people are of the same blood line, including distant relatives out of their respective mourning obligation toward each other.
- When people are in mourning for the father, mother or husband.
- Where the grandparents or parents of either of the couple are being detained or imprisoned, if not permitted by the authority; and even when permitted, the wedding shall not be organized lavishly.
- Where the marriage may affect the king’s power, the social class order or contravene principal moral regulations and social order, such as mandarins were forbidden to marry girls in localities where they were posted (Article 316), mandarins and their children were forbidden to marry female singers (Article 323); students were forbidden to marry their deceased teachers’ wives (Article 324); mandarins working in mountain regions were forbidden to marry girls of the local chiefs (Article 334); it was forbidden to marry escaping female criminals (Article 388).
When the marital conditions were not met, the marriage was considered unlawful which shall be dealt with differently by the marriage-family legislation in Quoc Trieu Hinh Luat. If the condition prescribed in Point (a) was not met, the responsibility rested with the couple involved; hence they were subject to penal measures (warning and whipping) and payment to parents in asking for forgiveness; but their marriage would not be annulled. This was a flexible regulation.
If the stipulations prescribed in Point (b) were violated, the person who had permitted the marriage would be subject to penal liability and the marriage would be disregarded; but the couple involved would not be blamed for the mistake.
Besides, Quoc Trieu Hinh Luat also determined the lawful form of marriage. In the light and spirit of some Articles, the engagement was considered the only lawful form of marriage. But that was not an ordinary engagement through an oral or written promise between two persons who could decide the marriage as commonly seen. The engagement is legally valid and considered a marital form only when it is solemnly organized by the two families through a ceremony prescribed by law for offering and receiving wedding presents, which is witnessed by members of the two families and fully agreed by the persons who can decide the marriage.
So, following the engagement, the marriage is legally valid, and a break of pledge is considered an act of unilaterally terminating the marriage and the persons who permitted the marriage shall be dealt with by law.
However, it is also seen through the provisions of Quoc Trieu Hinh Luat a clear distinction between the lawful marriage and the practical marriage. Though legally valid after the engagement, the marriage shall be the practical one only when a wedding ceremony is held and the couple become husband and wife, and only by then the husband-wife obligations arise. This distinction has, to some extent, reflected a fairly high legislative skills of the law-makers during the Le dynasty.
3. The regulation on marital termination
Under the provisions of the marriage-family legislation in Quoc Trieu Hinh Luat, the marriage shall terminate in either of the two following cases:
- Where either spouse died;
- Where a divorce is granted.
The death of either spouse is an objective and unexpected cause of the marital termination, which gives rise to special legal consequences such as: the personal relations between the husband and the wife also terminates (but for the wife, it shall terminate only when she fulfilled her mourning obligations toward her husband); the property relationship between the husband and the wife shall be settled in the spirit of humanity, and the division of property shall be done with the personal interests of the properpty owner being taken into account and special attention given to the interests of the widow.
Divorce is a special legal incident leading to the termination of a marriage. The legislators of the Le dynasty held that all relationship between husband and wife that exist before their marriage terminates are legally valid whether it is a lawful or unlawful marriage.
According to the provisions on marriage and the family in Quoc Trieu Hinh Luat, a divorce shall be granted in the following cases:
- Where it is required by law (in fact they are the cases where the law requires the husband to abandon the wife; hence these can be considered divorces due to the unattainment of the marital objectives).
- Where the wife requests a divorce in accordance with the provisions of law (though this is limited only to two cases prescribed in Articles 308 and 333 of Quoc Trieu Hinh Luat).
Where the marriage is unlawful, namely the conditions of marriage were not met. (However, before their divorce is permitted, the husband-wife relationships are considered still legally valid, thus giving rise to legal consequences after the divorce).
So, after the divorce, all personal relationships between husband and wife shall be completely terminated. Both divorcees shall be entitled to remarry. But Quoc Trieu Hinh Luat contained no specific provisions on how to settle the questions of children and property, which shall be, however, dealt with satisfactorily according to customary practices. Usually, if the wife is not at fault in the divorce, she shall be entitled to repossess her own property (including land property as well as jewels and ornaments). In cases where the wife is at fault she shall voluntarily leave all these things to the husband or shall be compelled to do so as provided for by law (Article 401). Moreover, the division of property also depends greatly on whether the couple has children or not and also on the support relationship between wife and husband as well as between the parents and children.
4. Child adoption
Child adoption has occupied an important position in the marriage-family legislation in Quoc Trieu Hinh Luat as it is an incident that will give rise to the multi-sided relationships between the adoptor and the adoptee concerning the social order and Confucian ethics.
In the traditional society of Vietnam, the child adoption was made for various purposes. But, basically, there were two types of child adoption:
- Child adoption to carry on the lineage.
- Child adoption for common purpose.
There contained in Quoc Trieu Hinh Luat similar and different provisions on these two types of adopted child, depending on the child’s position in the family of his/her biological parents and in his adoptive parents’.
With regard to formality, the child adoption must necessarily be made in writing between the adoptive parents and the biological parents (such document was called “van khe” (contract) or “duong van tu” (adoption contract deed) for common adoption, and “lap tu” (heir appointment paper) for child adoption to carry on the lineage. Depending on the will of the adoptive parents, the distribution of property to the adopted child can be clearly stated or not in such paper. The adopted child’s name must be recorded in the adoptive father’s book of residence.
For the common case, the adoption can be made when the child is still very young or already attains adulthood and the adoptee can be a relative or not, and the adoptive parents have had children or not. But for the adoption to carry on the lineage, the law stipulated that the child must be at the age of from 3 to 7, and must be a relative, and the adoptive parents must not have any child. For both cases, the adopted child must not be the eldest son of his biological parents.
The child adoption shall give rise to certain legal consequences. If adopted while still very young, the child shall be considered an offspring and consequently have his obligations towards his adoptive parents as his biological parents. The adoptee shall also be entitled to inherit the property left by the adoptive parents. If it was written in the adoption papers that the adoptee shall be distributed land property, he shall be entitled to enjoy part of the land property if the adoptive parents had children. In cases where the adoptive parents have no offspring, the adopted son shall inherit the entire property if he lived with the adoptive parents since he was very young, or two-thirds of the property if he did not live with them from the time he was still young.
Besides, the adoption shall not terminate all the relationships between the adoptee and his biological parents. In cases where his biological parents die without any other offspring, the son who had been adopted shall be entitled to inherit a certain portion of the property (about half of the portion given to a heir). If the adoptee was not given the land property by his adoptive parents, the portion of property he inherited from his biological parents shall increase.
The adoption can terminate when there is no other son in the family of the adoptee’s biological parents to carry on the lineage. The termination must be proposed by the apdoptee and permitted by the adoptive parents.
In short, the legislation on marriage and family is an important part of Quoc Trieu Hinh Luat, which has epitomized the feudal legislation in general and the Le dynasty’s legislation in particular. It was deeply influenced by the Confucian concepts on marriage and the family. The feudal regime of marriage and family was in essence the patriarchy which governed all relations in the family where the patriarch was considered a little king while the junior and the female had to bear all the burdens. Yet, the marriage-family legislation in Quoc Trieu Hinh Luat contains many progressive provisions, demonstrating the popularity and national tradition and reflecting the role played by the legal system in institutionalizing things that existed in Vietnamese society, that is the progressiveness of the feudal class under the Le dynasty, the national tradition to respect the women, the women’s important role in the socio-economic life of the late Le period, the humane tradition of the nation.-