Applying Customs Towards Building and Perfecting the Socialist Legal System in Vietnam

uniformity nationwide, respecting local characteristics, but localities are not allowed to carry out exceptional, unprincipled activities. For the People's Court, when applying customs in resolving civil cases, the principle of ensuring socialist legality sets out the following specific requirements:

- Must respect the supremacy of the Constitution and ensure the unity of the legal system: The process of applying customs must not be contrary to the basic principles stated in the Constitution. First of all, according to the provisions of Clause 3, Article 5 of the 2013 Constitution, "ethnic groups have the right to use their own language and writing, preserve their national identity, promote their fine customs, practices, traditions and culture". Thus, it is clear that the customs applied here must

It is imperative to ensure that the Constitutional principle is a good practice, not a

all kinds of customs. In addition, good customs to be applied to regulate specific social relations and to make those social relations become legal relations must be consistent with the principles stated in legal documents that act as the original law. Specifically, in the civil field, the principles stated in the Civil Code must be ensured; in the business and commercial field, they must be consistent with the Commercial Law; in the marriage and family field, they must be consistent with the Law on Religion and Family.

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- It is necessary to understand and apply the provisions of the law consistently when applying customs; to understand customs consistently. For example, when the law allows the application of customs, of course the competent authority will be able to exercise this right. But this also needs to be understood as the obligation of the competent authority. If there is no law but there are customs that do not contradict the basic principles of the law, in cases where customs are applied, it is impossible not to apply customs. The cited customs must be customs with consistent content. That is, the customs are not known to everyone in the community, but must be customs whose content is agreed upon by those who know about them. The competent authority when applying customs must apply the customs that have been identified as existing and must apply them according to the unified understanding of the community. Ensuring the consistency of the legal system is also reflected in the aspect that, in cases where precedents are considered the source of

According to law, Vietnamese law will have three types of sources: legal documents, customs and precedents. In that case, applying precedents or applying customs must not be contradictory or overlapping and must ensure priority on the basis of legal regulations.

- Only apply customs when permitted by law: Research on legal documents that are the basic sources of the main branches of law in the Vietnamese legal system shows that the principle of applying customs is almost only prescribed for regulating legal relations between individuals and organizations in society, in which there is no subject with public authority. Specifically, the branches of Criminal Law, Administrative Law, and Criminal Procedure Law do not have any documents allowing the application of customs. The principle of applying customs in the absence of law also only appears in a number of legal documents regulating civil relations in a broad sense, including civil relations, business - commercial relations, marriage and family relations. The Labor Code does not mention this principle.

Thus, it is necessary to thoroughly grasp the viewpoint that, although the legal system is not really perfect, the lack of norms regulating social relations exists in all branches of law, the principle of applying custom is only prescribed for some branches of law. Therefore, only some branches of law can apply custom, not all branches of law can use this type of supplementary source.

On the other hand, in each branch of law that allows the application of customs, not all social relations are subject to customs. The principle that needs to be ensured here is:

Firstly, regarding domestic customs: In marriage and family relations: Customs and practices that express the identity of each ethnic group and do not contravene the principles stipulated in the Law on Marriage and Family shall be respected and promoted. For example, the performance of weddings, the performance of pre- and post-wedding ceremonies (betrothal ceremony, engagement ceremony, dowry ceremony, re-appearance ceremony, etc.); In civil and business-commercial relations: in cases where the law does not stipulate and the parties do not have an agreement, customs may be applied; customs must not contravene the principles stipulated in the Civil Code.

Second, regarding international practices: In case an international treaty to which the Socialist Republic of Vietnam is a member stipulates the application of international commercial practices, international commercial practices shall be applied; in case the parties in a commercial transaction involving foreign elements agree to apply international commercial practices and such international commercial practices do not contravene the basic principles of Vietnamese law, international commercial practices shall be applied.

The proactiveness and positivity of the Supreme People's Court will ensure that many solutions to promote the application of customs are feasible. For example, proactively and actively training judges on customs; proactively and actively researching customs, disseminating and popularizing customs; proactively and actively making recommendations and participating in the development and improvement of laws on the application of customs, etc.

The proactive and active role of the Court is also reflected in the proactive and active role of the People's Courts at the provincial and district levels and the judges. According to current regulations, custom is a source of support for written law. If there is no written law, custom can be applied. However, the application of custom is not currently mandatory in all cases. Therefore, if the competent authority does not apply it, there is no specific sanction to handle it. That is also the reason why the viewpoint of applying custom is to promote the proactive and active role of the People's Courts at all levels. Currently, one of the reasons why the application of custom is not really feasible is due to the reluctance of judges to apply it.

- Do not create exceptions or lack of principles when applying customs to resolve civil cases. Exceptions and lack of principles here may mean applying customs in cases where they are not applicable or applying customs with unclear or inappropriate content, or even citing ways of handling that do not actually exist. To ensure socialist legality, these trends must be avoided.

4.1.2. Applying customs towards building and perfecting the socialist legal system in Vietnam

According to the Party's viewpoint and on the basis of the provisions of the Constitution, the State

The Socialist Republic of Vietnam is a socialist rule of law state of the people, by the people.

people, for the people. In a state of law, the legal system must be truly perfect. Therefore, the application of customs, in addition to the purpose of supplementing the law, also means that from practical application, the state will choose which customs are suitable for the goal of regulating the state's social relations to elevate them to law, making the legal system more perfect. This is inherently a traditional way of doing things. Right from the time the state was first established, the ruling class used this method to form laws in addition to issuing new regulations. In Vietnam, there have been cases where the state recognized customs, and after a period of application, elevated them to law. This has not only happened in previous types of states but also in the new type of state - the Socialist Republic of Vietnam, for example, customs on hui, ho, bieu, phuong, etc.

The application of customs aims to perfect the legal system. This viewpoint needs to be thoroughly understood because from here it will perfect the legal system in the following directions:

Firstly, it will improve the system of legal sources, making the legal system have "open" sources, rich and diverse sources. Reality has proven that the richer and more diverse the sources of law, the more comprehensive the legal system becomes. A legal system with a "closed" source, that is, relying only on a single source of legal documents, will cause many difficulties in applying the law due to the lack of comprehensiveness of this type of source of documents. For example, in criminal trials, due to the "closed" source, only recognizing the Penal Code as the sole source, many cases arise in practice where the prosecuting agencies cannot enforce the law [105]. Recognizing the type of customary source and applying customary practices is one of the important solutions to improve the legal system in the direction of ensuring the comprehensiveness of the legal system.

Second, the application of customs will elevate appropriate and popular customs to legal documents, supplementing the missing regulations in the system of legal documents.

With such important meaning, the application of customs needs to be seriously implemented, summarized, experiences drawn and reported to competent authorities to have a basis for proposing to perfect the legal system, contributing to the success of the cause of building a rule of law state in Vietnam.

4.1.3. Apply domestic customs on the basis of ensuring equality among ethnic groups, regions, areas, and communities.

As we know, domestic customs are always associated with ethnic groups, regions, clans, areas, etc. Therefore, when applying customs, it is necessary to ensure the principle of equality between ethnic groups. There are many cases where the law allows the application of customs that can cite the community customs of many subjects, each subject has different customs. In that case, which customs take priority? For example, the Civil Code stipulates that children born when the father and mother are of different ethnicities, the child's ethnicity can be chosen according to customs. Suppose the customs of the father's ethnicity instruct the child to have the father's ethnicity, the customs of the mother's ethnicity instruct the child to have the mother's ethnicity, then which ethnic customs will the competent authority apply? Another example is that in a civil transaction, the parties agree on a unit of measurement of a dozen, but people in one region think that a dozen is 10 units, while people in another region think that a dozen is 16 units. In that case, which region's custom should be applied? We believe that when choosing and applying custom, discrimination must be avoided, but the principle of ensuring fairness must be established. Otherwise, it will infringe upon the rights and interests of the parties in the legal relationship, and may cause divisions in the community.

4.1.4. Applying customs to ensure the legitimate rights and interests of the parties in civil relations

Normally, in legal relations, the parties are always protected in their legitimate rights and interests. However, for social relations in civil exchanges that are not regulated by law or are not fully regulated, and whose legitimate rights and interests may not be determined, the parties themselves always have rights, obligations, and legitimate interests. When applying customs to resolve civil disputes, the competent authority must pay attention to ensuring this principle. Civil disputes are

Ultimately, it is a dispute about interests, usually material interests, but there may also be spiritual interests related to personal values. Even if there is no law to regulate or the law is not yet complete, principles such as protecting moral values, public order, fairness, etc. must always be taken into account. Therefore, in applying customs to resolve civil disputes, the People's Court must thoroughly understand the principle of ensuring the rights and legitimate interests of the parties, because that is also protecting moral values, protecting public order, and respecting fairness in social relations.

4.1.5. The application of customs must ensure respect and protection of the rights and legitimate interests of individuals, organizations and nations.

Not only does it ensure the legitimate and legal rights and interests of the parties in legal relationships that apply customs, but the application of customs must also respect and protect the interests of the community, the nation, and other individuals and organizations in society. A customary norm existing in society may be beneficial to this individual, community, or social group but not beneficial to another individual, community, or social group. Even an international custom may not be beneficial to a country in a specific legal relationship. In the above cases, the application of customs must be considered.

Thoroughly implementing this principle also contributes to building and perfecting the socialist rule of law state. The socialist rule of law state in Vietnam has made constitutional commitments in the 2013 Constitution such as: for individuals, the State ensures and promotes the right to mastery; in relations with countries

other, workers state

, respect, cover

protect and guarantee human rights, human rights

citizens; consistently implement an independent, self-reliant, peaceful and friendly foreign policy

cooperation and development; multilateralization, diversification of relations, proactiveness and positiveness

actively integrate and cooperate internationally on the basis of respect for independence, sovereignty and territorial integrity, non-interference in each other's internal affairs, equality and mutual benefit.

4.2. SOLUTIONS TO ENSURE THE APPLICATION OF CUSTOMS IN RESOLVING CIVIL CASES BY PEOPLE'S COURTS IN VIETNAM TODAY

From the analysis of theoretical basis and assessment of the current situation, in accordance with the above viewpoints, we believe that promoting the construction of a rule of law state in Vietnam does not exclude the possibility of applying customs in regulating civil legal relations.

To ensure the application of customs in resolving civil cases of the People's Court, there needs to be a system of synchronous and feasible solutions. These solutions must address the causes of inadequacies in the application of customs to resolve civil cases in Vietnam, ensure the rights and legitimate interests of the parties in civil relations as well as of the whole society, ensure the rationality, fairness, efficiency, flexibility and constitutionality in the activities of the People's Court.

This work proposes the following groups:

- Theoretical solution group;

- Group of solutions on legal improvement;

- Group of solutions on reporting, statistics, and collection of customs serving the activities of resolving civil cases;

- Group of solutions to improve the capacity and awareness of competent persons and people in applying customs to resolve civil cases;

- Group of solutions on legal processes and procedures in litigation activities.

4.2.1. Theoretical solution group

Research on the theoretical basis of the People's Court's application of customs in resolving cases

In resolving civil cases, it can be affirmed that the limitations from the theory of customs are one of the reasons leading to the difficulty in perfecting legal regulations on customs and many problems when applying customs in the practice of resolving civil cases.

To overcome this limitation, from a theoretical perspective, it is necessary to continue researching customs from many levels and aspects as follows:

Firstly, legal science research and teaching institutions, the Supreme People's Court, and scientists dedicated to this issue need to promote research to clarify three concepts: customs, domestic customs, and international customs.

- For domestic customs:

It is necessary to develop this concept into a legal concept, presented in a law. Currently, there are many concepts of custom and concepts that are similar or have similar meanings and roles to custom, such as customary law, village conventions, customs, practices... The important thing is that if the law of a country allows custom to be applied as law in some cases, it is necessary to make this concept simple, clear, easy to understand and consistent in the legal system.

To carry out this work, it is necessary to have in-depth research from the cultural and linguistic perspectives. Because although Vietnamese dictionaries provide definitions of customs, these definitions are not consistent with each other. Moreover, from the scientific perspective of culture, each research work on customs has different views on this issue. It is necessary to make the concept of customs from the linguistic perspective and the cultural perspective closer to each other. On the basis of the concept of customs from the linguistic perspective (stated in the Vietnamese Dictionary), it is necessary to study to distinguish it from related issues such as customs, customary laws, village conventions, village rules, customs, etc. Based on studies on language and culture, the research unit of the Ministry of Justice or the Supreme People's Court will carry out specialized scientific research works on the theory of customs as a scientific basis for building the concepts of customs, customs, habits, practices, etc. in the Civil Code, Law on Marriage and Family and Commercial Law.

- For international practices:

Similar to domestic customs, it is necessary to legalize the term international customs. On the basis of clarifying the concept of international customs, it is necessary to study to distinguish international customs from national customs (domestic customs). First of all, it is necessary to unify the language of how to use these terms, for example, if using the language of customs, it means only domestic customs, but if it is not domestic customs, it is necessary to use the language of international customs to avoid confusion. In fact, currently in the Civil Code, Commercial Law,

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