Current Status of Legal Regulations on Prevention and Combat of Trafficking in Women and Children

Abolish backward customs and practices...; voluntary, progressive, monogamous marriage, equality between husband and wife...; The State and society do not recognize discrimination...; The State, society and family have the responsibility to protect women and children... [36].

Along with the Civil Code, the Law on Marriage and Family, especially the promulgation of Decree No. 68/2002/ND-CP detailing the implementation of a number of articles of the Law on Marriage and Family on marriage and family relations involving foreign elements, has specifically and strictly regulated the regime of giving and receiving adoptions. Through the implementation of Decree No. 68/2002/ND-CP, the adoption of children involving foreign elements has resolved many difficulties and avoided negative phenomena. In addition to the above advantages, in practice, the implementation of the above decree has also revealed shortcomings and inadequacies, that is, there is no regulation allowing domestic organizations to operate in the field of adoption, which means legal inequality between domestic organizations and foreign organizations. On the other hand, allowing domestic organizations to operate in the field of adoption will support better adoption activities, creating a bridge between foreign adoption organizations and domestic foster care facilities and agencies. Moving forward, it is possible to socialize some stages in the adoption settlement process, aiming to attract the participation of social organizations in child protection work. Another problem is that when implementing the principles of adoption settlement as prescribed in Clause 2, Article 35 of Decree No. 68/2002/ND-CP, it will be disadvantageous for children with physical disabilities in the centers as well as in the family. For countries that have not signed or joined the international convention on adoption cooperation with Vietnam, the conditions for adopting Vietnamese children are limited. In fact, in the centers and families, there are many children in special circumstances who are in great need of charity. It must be said that giving and adopting children is a humane act, in accordance with the traditional morality of the Vietnamese people. The State needs to create favorable conditions but also has to strictly regulate, ensuring that giving and adopting children are for the right purpose and in accordance with the law.

The Labor Code promulgated in 1994, supplemented and amended in 2002, devoted two chapters to regulating female labor and the labor of minors. The right to work and to have a job is a fundamental right of citizens as stipulated in the Constitution.

Women and minors are subjects that need special attention. Therefore, in addition to the provisions of general application, the Labor Code has specific provisions on the special status of women and minors to better protect their legitimate rights and interests, and at the same time prevent acts of abuse, exploitation of labor or "transformation" forcing them to do things contrary to the provisions of the law. However, some provisions of the Labor Code still have general provisions that are difficult to apply... For example, Clause 2, Article 118 of the 2002 Labor Code stipulates: "Among labor inspectors, there must be an appropriate proportion of female inspectors". The implementing decrees do not explain what proportion is considered an appropriate proportion (there is no quantitative factor), so the application of the above provisions can easily lead to arbitrariness.

- Clause 3, Article 115 of the 2002 Labor Code stipulates: "Female workers during menstruation are entitled to 30 minutes off each day; while raising children under 12 months old, they are entitled to 60 minutes off each day during working hours while still receiving full pay" [37]. In many production facilities, workers have to work on assembly lines or in shifts, so applying the provisions of Clause 3, Article 115 of the 2002 Labor Code is very difficult, and a mechanism is needed to ensure implementation.

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- Clause 1, Article 119 of the 2002 Labor Code stipulates: "A minor worker is a worker under 18 years of age. The place of employment of minor workers must keep a separate logbook, recording full name, date of birth, current job, results of periodic health check-ups and present it when requested by the Labor Inspector" [37]. Article 120 of the 2002 Labor Code stipulates:

It is forbidden to employ children under 15 years of age, except for certain occupations and jobs regulated by the Ministry of Labor, War Invalids and Social Affairs. For occupations and jobs that allow children under 15 years of age to work, learn a trade, or practice a trade, the employment and use of these children must have the consent and supervision of their parents or guardians [37].

Thus, according to the 2002 Labor Code, minors are people aged from 15 to under 18 years old and children are people under 15 years old. These regulations will create inconsistency in the same legal system (between the Labor Code and the Law on Child Protection, Care and Education).

Education is a right and at the same time a basic obligation of citizens as stipulated in the Constitution. These basic rights and obligations have been specified in specialized legal documents, and were codified for the first time in the 1998 Education Law and amended in 2005. According to this law, for the first time, the national education system from preschool education to university and postgraduate education is clearly and consistently defined in one law, which defines:

Education is the right and obligation of citizens. All citizens, regardless of ethnicity, religion, belief, gender, family background, social status or economic circumstances, have equal opportunities to study. The State implements social justice in education, creating conditions for everyone to study. The State and the community help the poor to study... The State gives priority and creates conditions for children of ethnic minorities, children of families in areas with particularly difficult socio-economic conditions... and other beneficiaries of social policies to exercise their rights and obligations to study [41].

Creating conditions for all citizens, including women and children, to have equal opportunities for education is very important for the development of each individual and thereby, they have the conditions of knowledge and capacity to rise up and assert themselves and overcome the difficulties of life. However, some provisions in the 2005 Education Law are still general and difficult to apply in practice.

- Point c, Clause 1, Article 84 of the 2005 Law on Education stipulates: "Children at preschools are entitled to a reduction in fees for public entertainment services" [41]. In reality, many public entertainment services have been organized and operated in a manner that does not meet public interest criteria. Most of these services have been privately bid for high profits and children have not been entitled to a reduction in fees for the above entertainment services. Therefore, children's right to play has not been guaranteed and thus, the provisions of Point c, Clause 1, Article 84 of this Law need to have a mechanism to ensure implementation.

The Law on Child Protection, Care and Education 2004 has determined:

Children, regardless of gender, legitimate children, illegitimate children, biological children, adopted children, stepchildren, common children; regardless of ethnicity, religion,

regardless of their background, social status, or political views of their parents or guardians, they are protected, cared for, and educated, and enjoy the rights prescribed by law [39].

The law also provides:

Those who violate children's rights, abuse, humiliate, torture, or abandon children; incite, entice, or force children to commit illegal acts,... that harm the normal development of children... will, depending on the severity, be subject to disciplinary action, administrative sanctions, or criminal prosecution [39].

Vietnam is the first country in Asia and the second country in the world to ratify the 1990 International Convention on the Rights of the Child. Article 1 of the International Convention on the Rights of the Child stipulates: For the purposes of this Convention, a child means every human being under the age of 18, unless the law applicable to that child stipulates an earlier age of majority. Article 1 of the 2004 Law on Child Protection, Care and Education stipulates: "Children defined in this Law are Vietnamese citizens under the age of sixteen" [39]. Thus, there are still inconsistencies between Vietnamese law and international law regarding the determination of the age of a person considered a child. If the provision on the age of a child in the Law on Child Protection, Care and Education remains that of a person under the age of 16, it should be considered and added to the Penal Code the crime of "trafficking in minors" so as not to miss out on criminals.

Clause 1, Article 54 of the Law on Child Protection, Care and Education stipulates: "People's Committees at all levels are responsible for promptly detecting and resolving the situation of children having to do heavy, dangerous work, or being exposed to toxic substances; creating conditions for children to go to vocational training and do work suitable to their health and age within the locality" [39]. It is extremely necessary to define the responsibilities of the People's Committees at the provincial (city) level and the People's Committees at the district (county, town) level for children having to do heavy, dangerous work, being exposed to toxic substances, and children working in the family community, because the People's Committees at the provincial and district levels have the capacity and conditions to ensure the implementation of this regulation. However, applying this regulation to the People's Committees at the commune level is not really appropriate, especially

This is especially true for communes in remote areas, because at most commune levels, mobilizing "talents and resources" for the work of protecting, caring for and educating children is very difficult.

In short, in the face of the extremely complex, serious and increasing developments of the trafficking of women and children, the system of regulations on the protection of women and children's rights has revealed a number of shortcomings and inadequacies. This has led to a situation where the rights of women and children have been and are being violated and a number of women and children are at risk of becoming victims of human trafficking.

2.2.2. Current status of legal regulations on preventing and combating trafficking of women and children

The Vietnamese State considers human trafficking an illegal act, a violation of human rights and a trampling on human dignity, causing serious and long-term harm to the health, soul and body of the victim as well as seriously affecting social safety and security. This is a dangerous crime, so the fight against and prevention of this crime requires synchronous and comprehensive efforts and solutions both nationally and internationally. In addition to building a legal framework to protect human rights, including the rights of women and children, our State also promulgates legal documents to create a legal basis for handling all acts of violating the rights of women and children, criminalizing the acts of buying and selling women and children and illegal migration. Although Vietnam does not have a separate law on combating trafficking in women and children and smuggling of immigrants, many documents have provisions on this issue such as the Ordinance on Handling of Administrative Violations, the Ordinance on Prevention and Control of Prostitution, the Ordinance on Exit and Entry, the Criminal Procedure Code, the Penal Code and related documents in terms of preventing, stopping and punishing crimes of trafficking in women and children and protecting victims and helping victims reintegrate into the community.

2.2.2.1. Civil sanctions related to human trafficking and other related acts

Vietnamese law does not have specific provisions on liability for compensation for damages related to human trafficking and other related acts such as: prostitution, forced labor, illegal exit and entry, organizing and forcing others to flee.

foreign countries... the general principle of liability for compensation for damages is stipulated in Chapter XXI of the 2005 Civil Code - liability for compensation for damages outside of the contract. Accordingly, anyone who is at fault in infringing upon the life, health, honor, dignity, reputation, property, other legitimate rights and interests of another person, causing damage, must compensate (Article 604 of the 2005 Civil Code).

The 1999 Penal Code (Article 42) also stipulates that the offender must compensate for material or mental damage determined to be caused by the crime. To ensure the implementation of this provision, the 2003 Criminal Procedure Code has provisions on property seizure (Article 146), according to which property seizure is applied in cases where the suspect or defendant must be responsible for compensation for damage.

In that spirit, anyone who commits human trafficking or other related violations such as prostitution, forced labor, illegal exit or entry, organizing or forcing others to flee abroad... and causing damage to the victim, in addition to being administratively sanctioned or prosecuted for criminal liability, must also be responsible for compensating the victim for material or mental damages.

2.2.2.2. Administrative sanctions related to human trafficking and other related violations

Administrative sanctions for human trafficking and other related violations are provided for in the provisions on specific violations and penalties.

According to Vietnamese law, human trafficking and other related violations such as prostitution, forced labor, illegal exit and entry, organizing and forcing others to flee abroad, etc., if not yet subject to criminal prosecution, will be subject to administrative penalties. The regulation of administrative violations and the form of penalty for each specific administrative violation is under the authority of the Government (Article 2 of the 2002 Ordinance on Handling of Administrative Violations). In recent years, the Vietnamese Government has issued many decrees regulating the handling of administrative violations in each of the following specific areas:

Decree No. 178/2004/ND-CP dated October 15, 2004 of the Government stipulates that fines are applied to those who commit acts of buying and selling sex, taking advantage of reputation, threatening to use force, using force, taking advantage of position and power to protect and maintain prostitution activities, and brokering prostitution but not regularly and not to the extent of criminal prosecution.

- Decree No. 150/2005/ND-CP dated December 12, 2005 of the Government on administrative sanctions in the field of security, order and social safety, stipulates in Article 22 on administrative sanctions (fines) for violations of regulations on exit, entry, transit, residence and travel that are not yet subject to criminal prosecution, such as: acts of assisting, harboring, concealing, creating conditions for others to flee abroad, stay abroad or cross the border illegally; falsifying records and papers to obtain passports or other types of documents with value in lieu of exit, entry, transit visas, temporary residence certificates, permanent residence certificates; forging passports, visas, temporary residence certificates, permanent residence certificates, verification stamps; Use passports, visas, temporary residence certificates, permanent residence certificates, verification stamps or other documents for exit, entry or transit.

Decree No. 113/2004/ND-CP dated April 16, 2004 stipulates administrative sanctions for violations of labor laws, including regulations on administrative sanctions (fines) for violations of regulations on the use of minors and female workers to do heavy, dangerous work or work that exposes them to toxic substances; acts of abuse and forced labor; discrimination against women, insulting the honor and dignity of female workers (Article 15); violations of legal regulations on sending Vietnamese workers to work abroad (Article 16), accepting foreigners to work in Vietnam (Article 17)...

Decree No. 87/2001/ND-CP dated November 21, 2001, stipulating administrative sanctions in the field of marriage and family, including regulations on administrative sanctions (fines) for acts of forced marriage, divorce or obstruction of voluntary marriage (Article 7); violations of regulations on marriage registration (Article 9); violations of regulations on adoption (Article 14).

Administrative sanctions for human trafficking and other related violations are also reflected in the policy of strict handling of violations in cases with aggravating circumstances. According to the provisions of Article 9 of the 2002 Ordinance on Handling of Administrative Violations on aggravating circumstances, the following administrative violations in general and violations related to human trafficking, forced labor, prostitution, exit and entry in particular are considered aggravating circumstances: inciting or enticing minors to commit violations, forcing people who are materially or mentally dependent on them to commit violations; organized violations; repeated violations in the same field or recidivism in the same field; taking advantage of positions and powers to commit violations; continuing to commit administrative violations even though competent persons have requested that such violations be stopped...

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2.2.2.3. Criminal sanctions for human trafficking and other related crimes

The 1999 Penal Code has two articles regulating two crimes directly related to:

relating to human trafficking, namely: crime of trafficking in women (Article 119) and crime of trafficking, exchanging or appropriating children (Article 120).

According to the provisions of the Vietnamese Penal Code, the trafficking of women and children is identified as a serious crime that violates the life, health, honor and dignity of people. Therefore, the penalties for these crimes are very strict (up to 7 years in prison for the crime of trafficking of women and up to 10 years in prison for the crime of trafficking of children); committing the crime in cases with aggravating circumstances such as: organized, professional, trafficking of women and children for the purpose of prostitution, to send them abroad or trafficking of children for inhumane purposes... the penalty can be up to 20 years in prison (for the crime of trafficking of women) and 20 years in prison or life imprisonment (for the crime of trafficking of children).

In addition to imprisonment, those who commit crimes of trafficking in women and children may also be subject to an additional fine of VND 5,000,000 to VND 50,000,000.

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