Applying the law in resolving marriage and family cases in Hanoi

Law for the people, from understanding the law, people will participate in implementing the law, protecting the law, denouncing violations of the law in marital relationships, and at the same time, through the practice of ADPL in resolving marriage and family cases, will discover shortcomings in the law to have proposals to amend the provisions of the law to suit the requirements of practice in each specific stage.

In addition to the achievements, through the process of examining the case supervision and appeal trial of the Hanoi People's Court, shortcomings in the ADPL during the settlement process were discovered, leading to a number of cases being revised or annulled; a few cases were dragged on for a long time, affecting the rights of the litigants. In the trial activities, the Hanoi People's Court also revealed some shortcomings, such as many pending cases, violating the time limit for litigation. In particular, some cases due to inaccurate ADPL were revised or annulled many times, lasting for many years, affecting the lives, rights and legitimate interests of citizens. This is one of the reasons leading to people filing complaints at higher levels to central agencies. The above shortcomings are obstacles in the process of building a rule of law state in Vietnam.

Based on the above reasons, I chose the topic "Applying the law in resolving cases of Marriage and Family in Hanoi" as my master's thesis in the field of Historical Theory of State and Law.

2. Research situation

In resolving cases in general and ADPL in resolving Marriage and Family cases in particular, it has been of interest to legal scientists and especially those who directly work in the adjudication of the Court sector. There have been many research works and articles mentioning some aspects of issues related to the topic such as:

Maybe you are interested!

- Truong Kim Oanh (1996), Mediation in civil proceedings, Master's thesis in Law;

- Dang Quang Phuong (1999), Current status of judgments and some recommendations to improve judgments , People's Court Magazine No. 7, 8;

- Nguyen Van Cu, (2000), Property rights of spouses under the 2000 Law on Marriage and Family, Journal of Legislative Studies No. 11;

- Nguyen Van Cu - Ngo Thi Huong, (2002), Some theoretical and practical issues on the Law on Marriage and Family 2000, National Political Publishing House, Hanoi;

- Bui Van Thuan (2002), Women and the law, rights and obligations of spouses regarding private and common property, Women's Publishing House , Hanoi;

- Nguyen Hong Hai (2003), Discussion on division of common property of spouses during marriage according to current Vietnamese law, Journal of Law No. 2;

- Tran Thi Quoc Khanh (2004), From reconciliation in national tradition to grassroots reconciliation today, Journal of Legislative Studies No. 11;

Through the study of the above works, it can be seen that the authors only mention one aspect or another of ADPL in the process of resolving Marriage and Family cases, but there has not been any work that systematically and fully studies ADPL in resolving Marriage and Family cases in general, as well as in Hanoi city in particular.

3. Purpose and tasks of the thesis

* Purpose of the thesis

+ Research theoretical issues on ADPL in resolving Marriage and Family cases;

+ Practical assessment of ADPL in resolving Marriage and Family cases in Hanoi city;

+ Propose solutions to ensure ADPL in resolving Marriage and Family cases of the People's Court in Hanoi city at present.

* Thesis tasks

+ Building the concept of ADPL in resolving marriage and family cases

and analyze the characteristics, content, as well as state the stages of ADPL in the settlement of marriage and family cases;

+ Evaluate the results achieved, advantages and limitations of ADPL activities in resolving Marriage and Family cases of the People's Court in Hanoi city and draw out the objective and subjective causes of the limitations;

+ Raise viewpoints, requirements and propose specific solutions such as: Strengthening the Party's leadership over the activities of the Court; perfecting legal regulations to ensure legal compliance in resolving marriage and family cases; Perfecting the organization, improving the capacity of the team of Judges, Court officials and People's Assessors... to ensure legal compliance in resolving marriage and family cases of the People's Court in Hanoi city.

4. Research object and scope

* Research object : ADPL in the settlement of Marriage and Family cases of Hanoi People's Court.

* Scope of research : The thesis examines and studies the situation of ADPL to resolve Marriage and Family cases of People's Courts in Hanoi city during the period from 2009 to 2012.

5. Methodological basis and research methods

* Theoretical basis: The thesis is researched on the theoretical basis of Marxism-Leninism, Ho Chi Minh thought and the viewpoint of the Communist Party of Vietnam on the State and law, including the issue of ADPL resolving marriage and family cases.

* Research method: The thesis uses the research method of Marxist-Leninist philosophy on dialectical materialism, historical materialism, historical and logical method, method of combining theory and practice; method of statistical analysis and synthesis, comparison.

6. Theoretical and practical significance of the thesis

The thesis clarifies the theoretical and practical basis of ADPL activities in resolving Marriage and Family cases, and clarifies the characteristics of this type of case in Hanoi city.

Based on the assessment of the current situation, it points out the shortcomings in the ADPL activities in resolving marriage and family cases in Hanoi city and proposes feasible solutions to ensure the effectiveness of ADPL in resolving marriage and family cases, meeting the requirements of judicial reform.

The research results of the Thesis contribute to providing theoretical and practical basis for those who directly work in ADPL in resolving Marriage and Family cases, in order to implement and strictly comply with the Law on Marriage and Family. The Thesis can be used as a reference for research, teaching and learning in law universities, the system of political schools of the Party, for those who are directly working in adjudication at the People's Court in general and the People's Court in Hanoi in particular.

7. Structure of the thesis

In addition to the introduction, conclusion and list of references, the thesis consists of 3 chapters and 6 sections.

Chapter 1 : Theoretical basis for resolving marriage and family cases of the People's Court.

Chapter 2 : Current situation in resolving marriage and family cases of the People's Court in Hanoi city.

Chapter 3 : Solutions and recommendations to improve the efficiency of resolving marriage and family cases of the People's Court in Hanoi.

Chapter 1

THEORETICAL BASIS FOR APPLYING LAW IN RESOLVING MARRIAGE AND FAMILY CASES BY PEOPLE'S COURT

1.1. Concept of characteristics of law application in resolving marriage and family cases

1.1.1. Concept of law application

Proper and strict implementation of the law is an objective requirement of the state management agency by law in our country today. Many laws are promulgated but rarely applied in life, which proves that state management is ineffective. Therefore, law making and law implementation have a close relationship with each other.

So what is law enforcement? Law enforcement is a process of activities with the purpose of making legal provisions come into life, creating a legal basis for the practical actions of legal entities. Legal norms (LQPPL) are very rich, so the forms of their implementation are also different. Based on the nature of activities, law enforcement, legal science has determined the following forms of law enforcement:

- Compliance with the law: Is a form of law enforcement, in which legal subjects restrain themselves and do not carry out activities or behaviors prohibited by law.

- Law enforcement: Is a form of law enforcement, in which subjects actively perform their obligations according to the law.

- Using the law: Is a form of law implementation, in which subjects actively and proactively exercise their subjective rights according to the provisions of the law.

- (ADPL) (in a general sense) is a form of law enforcement, in which the State relies on the law to empower State agencies, social organizations, and individuals to base on legal provisions to issue individual decisions that create, change, or terminate a specific legal relationship.

The concept of ADPL as mentioned above is clearly shown in social life. For example, in order for ADPL to criminally punish criminals, the State has given the Court the power and the Court, based on specific provisions of the criminal law, will try and issue a verdict (ADPL criminal document) forcing criminals to accept a certain punishment. Or to protect traffic safety, the State has stipulated by law that traffic police officers have the right to apply traffic law regulations to make decisions on administrative sanctions against subjects who violate traffic laws by running red lights, going in the wrong direction, etc. In addition, in some cases, the State also allows some social organizations to ADPL, such as the law on the establishment of Associations...

Among the forms of law enforcement, ADPL is a special form of law enforcement, because the law here is implemented by subjects holding state power. If law compliance, law enforcement and law use are forms that all legal subjects can implement themselves, then ADPL is a form that always has the participation of the State. ADPL is a very important form of law enforcement. In which the law affects life and social relations to achieve the highest efficiency, its provisions are thoroughly implemented, because ADPL always has the intervention of the State.

In reality, if only through the forms of law implementation such as: law compliance, law enforcement and law use, the law is sometimes not thoroughly implemented because the subjects do not voluntarily implement it, because

These forms are only voluntarily implemented by legal entities without the State's compulsion to implement them.

ADPL has the following characteristics:

Firstly , ADPL is only carried out by competent State agencies. The law stipulates that each type of State agency is entitled to apply certain types of legal documents in certain cases. For example, only the Court is authorized to ADPL civil procedure, Law on Marriage and Family to proceed with divorce settlement, or not to grant divorce. The Police and People's Committees at all levels are not authorized to issue divorce decisions. Or only the Police, Procuracy and Court are authorized to ADPL criminal to investigate, prosecute and try criminals. The People's Committees at all levels are not authorized to criminalize.

Second, ADPL is an activity of State power, showing that: ADPL agencies apply unilaterally without depending on the will of the party to whom it is applied. The implementation of the provisions in ADPL documents is guaranteed by State coercion. For example: In a Marriage and Family case with a dispute over the common property of the spouses, the Court applies the Law on Marriage and Family, the Land Law, and the Civil Law to issue a judgment and decide to divide the common property of the spouses without depending on the consent or disagreement of one party or parties involved.

Third , ADPL is an activity conducted according to a very strict procedural process. For example, to use ADPL to resolve a Marriage and Family case or a Civil, Administrative, or Commercial case, the Court must strictly follow the civil procedural steps prescribed in the Civil Procedure Law and the Administrative Procedure Law.

Fourth , ADPL is a creative activity. That is, within the framework of the law, ADPLers must apply their knowledge of legal science and social science to ADPL creatively without being stereotyped or mechanical.

ADPL is usually performed in the following cases:

Firstly , when it is necessary to apply coercive measures with appropriate sanctions against subjects who violate the law. For example, when it is necessary to enforce a prison sentence on a criminal, law enforcement agencies such as the Police, the Procuracy, and the Court rely on the criminal law to conduct investigations, prosecute, try, issue judgments, determine criminal responsibility for the offenders, and force them to serve the sentence announced in the judgment.

The second is when the legal rights and obligations of the subject do not automatically arise, change or terminate without the intervention of the State. For example, the 1992 Constitution stipulates: “Labor is the right and obligation of citizens ” [27, Article 55], but such rights and obligations only arise when there is a decision by a competent State agency or an organization or individual authorized by the State to recruit that citizen to work.

Third , when there is a dispute over the rights and obligations of the parties participating in a legal relationship (QHPL) that the parties cannot resolve themselves. For example, when a dispute arises over the rights and obligations of the parties in a civil contract that the two parties cannot discuss and resolve, they must seek help from the Court, and the Court, based on the provisions of the law, issues a judgment determining the rights and obligations of the parties.

Fourth , in some legal relationships, the State finds it necessary to participate in inspecting and supervising the activities of the parties involved in that relationship or the State confirms the existence or non-existence of some real events or matters. For example: confirming wills, notarizing mortgages, certifying marriage registrations, etc.

From the above analysis, a concept can be drawn: ADPL is an organizational activity, a state power activity, in which the State