The court: " If officials and tribal chiefs in border areas become in-laws, they will be punished by exile and must divorce; if they have already married, the judgment will be different" (Article 51, Chapter on Marriage).
Under the Nguyen Dynasty, the BLGL was issued "first as a tool of governance of the early Nguyen Dynasty at the time when Vietnam had just reunited; especially after the long civil war (1771-1802) that had destroyed discipline and due to "degenerate customs" that had undermined the law" [62, p. 148].
The Law on Marriage and Family does not have specific regulations on the application of customs and practices for ethnic minorities in the field of marriage and family, but unlike the Law on Marriage and Family, the Law on Marriage and Family has recognized the custom of living with the son-in-law - a relatively common custom in ethnic minority areas. According to the provisions of the Law on Marriage and Family, there are three cases where living with the son-in-law is mandatory, which are: chieu te duong gia (when the wife's parents do not have a son, they invite the son-in-law to live with them to take care of them in their old age), nghia te (a poor son-in-law is adopted by his parents as an adopted son), and living with the son-in-law to work at the wife's parents' house to deduct expenses for the wedding. This living with the son-in-law must have a contract " the person who is married off must rely on the matchmaker to establish a marriage certificate, declare the care for the elderly parents, or the time limit for leaving the house" (Article 97). Living with the son-in-law will not be implemented if the son's family has only him as the only son in the family. It can be said that the case of sending the son-in-law to live with the wife also occurs in the married life of Vietnamese people but usually in ethnic minority areas and currently some places still maintain this custom but in these places each place implements it differently without following the provisions of the Law on Marriage and Family "The provisions in the Gia Long law on the contract of sending the son-in-law to live with the wife are all borrowed verbatim from the Qing Dynasty law. In fact, in our country, in the past, there was also the custom of sending the son-in-law to live with the wife, but according to custom, it was only a contract between the two families, there was no need to make a contract. Moreover, cases of being a son-in-law at the wife's house are also rare, because the son usually does not want to be known as having to depend on the wife's family" [53, p. 216].
Besides, there are provisions in the BLGL that are not suitable for the social situation in Vietnam at that time, so those provisions are not effective.
feasible in life, specifically the provisions on marriage certificates and private agreements which are not recognized by custom. Therefore, in the book "Ancient Vietnamese Law Summary", author Vu Van Mau gave his comments on BLGL as follows:
Maybe you are interested!
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Applying customs and practices on marriage and family to ethnic minorities according to the provisions of Vietnamese law - 15 -
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Quality of Law Application in Resolving Land Use Disputes at People's Courts
While there is no law regulating these issues, our people still live according to the old customary framework, that is, living outside the law. In other words, the Gia Long Code does not reflect Vietnamese society, or perhaps the Vietnamese regimes are not regulated by the legislator, or perhaps many provisions in the law are purely theoretical provisions that rarely have the opportunity to be applied to the Vietnamese people in reality. We can consider that code as a Chinese suit, tailored for a Vietnamese person, to wear in Vietnamese society [53, p. 155].
In short, feudal law, typically the Civil Code and the Civil Code, had "soft" regulations for ethnic minorities (soft on people from far away) because for Vietnamese villages and communes in general and ethnic minorities in particular, the legal influence of the State on these areas was very limited and almost impossible to integrate into the life of villages, communes, hamlets, and villages, where people still maintained long-standing customs and practices. Therefore:
Most villagers do not have direct access to legal documents for research and understanding. They only know the law or understand the law to some extent through the explanations of village chiefs, supervisors, and students during village festivals; or through the explanations of legal officials whenever there is a complaint. It can be said that the state of people lacking knowledge of the law, or more accurately, the state of "illiteracy in the law", is relatively common in Vietnamese feudal society [37, p. 100].
Especially for mountainous areas:
The power of the central court did not penetrate into those regions, and they were allowed to exist as an administrative state.
Autonomous governments have been practiced throughout most of Vietnam's history, and Vietnamese laws and customs have not forced them to follow them. Furthermore, many Vietnamese people did not want to migrate to those regions because the differences in Vietnamese culture to ethnic minority regions were very small, and on the other hand, they were also less Vietnamized [82, p. 17].
1.3.2. Laws during the French colonial period on the application of customs and practices on marriage and family for ethnic minorities
Since the 19th century, the feudal regime declined and ended with the "civilization" of the invading French colonialists. They carried out " the plot to divide the people of different ethnic groups, establishing all kinds of "autonomous regions": "autonomous Nam Ky", "autonomous Thai region", "autonomous Nung region", "autonomous Tay Nguyen"... causing discrimination and hatred among ethnic groups, between "good" and "religious", using Vietnamese people to fight Vietnamese people " [74, p. 64].
The French colonial policy of divide and rule was demonstrated by the promulgation of three sets of laws in the three regions of Bac Ky, Trung Ky and Nam Ky. In the North, there was the BDLBK in 1931; in the Central, there was the BDLTK in 1936, and in the South, there was the BDLGY in 1883.
The three codes mentioned above only apply to each region of Bac Ky, Trung Ky and Cochinchina. There are no specific regulations on the application of customs and practices to ethnic minorities, but only general regulations on the recognition of customs and practices in cases where the law does not stipulate: "When there is no enforceable law, the judge will decide according to customs and practices, and if there is no custom, then decide according to reason and fairness, also taking into account the customs, habits and feelings of the parties involved" (Article 4, BDLBK). Similarly, Article 4 of the Civil Code also stipulates: "When there is no applicable law, the judge will decide according to custom. If there is no custom, the judge will decide according to reason and fairness, and decide according to custom, as well as the habits and intentions of the parties involved." Or Article 10 of the Civil Code also stipulates : "Any agreement between our people that is contrary to the law, order or custom is considered invalid."
Thus, the French tacitly recognized the customs and practices of our people. This also aimed to create "reasonableness" in the way of resolving the parties involved, limit resistance from the people, and create easier and more convenient governance for the French colonialists. The recognition of customs and practices is clearly shown through the regulations on supplementing and correcting household registration: "When a birth, death, or marriage is not declared within the time limit prescribed by law, the Household shall not arbitrarily accept the late declaration, but the Household must report the failure to declare to the local Administrative Officer; the Administrative Officer shall immediately investigate to check whether the birth, death, or marriage is genuine or not, or whether the marriage is performed in accordance with custom..." (Article 42, BDLBK). When referring to the necessary qualifications for marriage, both the BDLBK and the BDLTK strictly prohibit marriage according to the "string connection" custom, which is to prohibit marriage between a sister-in-law and a brother-in-law, or between a sister-in-law and a brother-in-law (Article 74). In the regulations on the property of husband and wife, there is recognition of customary property agreements that the law does not interfere with: "Regarding the property of husband and wife, only when the husband and wife do not arbitrarily make a separate agreement with each other, the law will not interfere; such a separate agreement must not be contrary to customs and must not be contrary to the interests of the husband, who is the head of the family " (Article 102, BDLTK).
It can be said that the provisions in the civil codes aimed at the appropriate governance of each region of the French Colonialists, applicable to both the Vietnamese and the Montagnards (generally referring to the ethnic minorities in the mountainous regions). In fact, in the mountainous regions, where ethnic minorities lived, the French Colonialists still had their own governance policies. In these regions, the French Colonialists soon saw the advantages in using customs and practices to serve their governance policies. Therefore, the colonial government tacitly recognized the customs and practices of ethnic minorities, especially backward customs. That recognition mainly served the policy of "keeping people ignorant" to make it easier to govern while at the same time preventing the activities of Vietnamese national salvation organizations that still established bases to resist the French in the mountainous regions. To serve their governance policies, the French Colonialists also established "customary courts" in these areas. "
In the Ede villages as well as the villages of other ethnic groups: M'nong, Giarai, Bana, Xo Dang, Coho, Ma, etc. in Truong Son - Tay Nguyen and Southeast, there exists a form of "Customary Court " [64, p. 141].
The purpose of establishing the Customary Courts by the French colonialists was to bring in prestigious people in the villages who were familiar with local customs and practices to resolve disputes and conflicts in the villages. The French left it to the discretion of customs and practices to take effect, especially backward customs and practices.
In short, to serve the policy of "divide and rule", the French colonialists tacitly acknowledged the existence of customs and practices (mainly backward customs and practices tinged with superstition) in ethnic minority areas. Therefore, during this period, customs and practices seemed not to be "civilized", backward customs and practices had the opportunity to rise and dominate the lives of ethnic minorities. Progressive customs and practices were limited and gradually disappeared along with the implementation of the "ignorant" policy of the French colonialists.
1.3.3. Vietnamese law from the August Revolution in 1945 to present with the application of customs and practices on marriage and family for ethnic minorities
1.3.3.1. From 1945 to 1959
After the success of the August Revolution in 1945, the Democratic Republic of Vietnam was established on September 2, 1945. Right from its inception, the people's government paid great attention to the establishment of legal regulations to govern the country. However, in the context of fighting against "internal and external enemies", the provisional government could not immediately establish a new legal system. Therefore, on October 10, 1945, President Ho Chi Minh signed Decree No. 90/SL allowing the temporary use of the current laws of the old regime on the condition that " such laws do not contravene the principles of independence of Vietnam and
"Democratic republic". According to this Decree, in the three regions of North - Central - South, three civil codes are still maintained: BDLBK; BDLTK and BDLGY.
On November 9, 1946, the 1946 Constitution was promulgated, recognizing equality among all ethnic groups, regardless of race, gender, rich or poor, class, or religion. "All Vietnamese citizens are equal before the law and are entitled to participate in the government and national construction according to their talents and virtues" (Article 7). As for ethnic minorities, "in addition to equality in rights, ethnic minorities are assisted in all aspects to quickly catch up with the general level " (Article 8).
In the field of marriage and family, our State has issued many Decrees demonstrating democracy and equality: on May 22, 1950, President Ho Chi Minh signed Decree No. 97/SL on amending a number of rules and regulations in civil law, declaring a number of new principles in marriage and family such as the right to equality between husband and wife (Article 3); the right to civil autonomy of the wife (Article 5)... On November 17, 1950, Decree No. 159/SL was issued regulating the issue of divorce... However, the above Decrees only provide general provisions to build a progressive and democratic marriage and family regime, abolishing the regulations of the previous feudal colonial regime without specific regulations for ethnic minorities - where customs and practices have had and are having certain influences. Therefore, compliance with the provisions of the above Decrees is mainly implemented in the lowland regions. In mountainous areas, those regulations are not known to the people and they still live and follow long-standing customs and practices.
With the victory of Dien Bien Phu in 1954, the Geneva Agreement on restoring peace in Vietnam was signed, marking the victory of the resistance war against France. The North was completely liberated and moved forward to build socialism. In the North, the construction of a new marriage and family regime followed the principles of voluntary and progressive marriage; monogamy; equality between men and women and protection of women's rights in the family; protection of rights
Children, acknowledge and encourage, record in the law on marriage and family the good customs and practices that have been established.
1.3.3.2. From 1959 to 1986
To build a new marriage and family regime, eliminating the remnants of the feudal marriage and family regime, on July 10, 1959, the Supreme Court issued Directive 772/TATC "on the issue of suspending the application of old feudal and imperial laws".
On December 31, 1959, the 1959 Constitution was promulgated. Article 3 of the 1959 Constitution stipulates:
The Democratic Republic of Vietnam is a unified country consisting of many ethnic groups. All ethnic groups living in Vietnam are equal in rights and obligations. The State has the obligation to preserve and develop solidarity among ethnic groups. All acts of contempt, oppression, and division of ethnic groups are strictly prohibited. Ethnic groups have the right to maintain or change their customs and practices, use their own languages and writings, and develop their own ethnic cultures. Localities where ethnic minorities live in concentrated areas can establish autonomous regions. Autonomous regions are an inseparable part of the Democratic Republic of Vietnam. The State strives to help ethnic minorities quickly catch up with the general economic and cultural level.
The State allows ethnic minorities to establish autonomous regions and to set up autonomous regulations after being approved by the Standing Committee of the National Assembly. " Within the scope of autonomous powers, the People's Councils of autonomous regions may, in accordance with the political, economic and cultural characteristics of the local ethnic groups, set up autonomous regulations and regulations on specific issues for implementation in the localities after being approved by the Standing Committee of the National Assembly " (Article 95, 1959 Constitution).
Along with the promulgation of the 1959 Constitution, the 1959 Law on Marriage and Family was also promulgated (Decree No. 2-SL dated January 13, 1960 of the President).
The 1959 Law on Marriage and Family officially affirmed the nature of progressive and democratic marriage and recognized the application of customs and practices on marriage and family: " Marriage between people of the same bloodline, between adoptive parents and adopted children is prohibited. Marriage between siblings, half-siblings or half-siblings is prohibited. For other people who are related within five generations or have a direct relationship, marriage will be resolved according to customs and practices" (Article 9).
In addition to recognizing customs and practices in general, ethnic minorities can apply the provisions of the Law on Marriage and Family to set out their own provisions to suit their lives. Article 35 of the 1959 Law on Marriage and Family stipulates: "In ethnic minority areas, based on specific situations, separate provisions can be set out for this law. These separate provisions must be approved by the National Assembly Standing Committee."
Pursuant to Article 95 of the Constitution of the Democratic Republic of Vietnam and Article 35 of the 1959 Law on Marriage and Family. On April 18, 1968, the Standing Committee of the National Assembly approved Resolution No. 542-NQ-TVQH, including the "Regulations regulating the implementation of the Law on Marriage and Family in the Viet Bac Autonomous Region". Next, the Standing Committee of the National Assembly approved the " Regulations regulating the implementation of the Law on Marriage and Family in the Northwest Autonomous Region " in Resolution No. 873-NQ-TVQH dated December 18, 1970.
The two above-mentioned regulations both want to introduce into the lives of ethnic minorities new, progressive views on marriage and family such as free, progressive marriage; monogamous marriage; equality between husband and wife... The two regulations strictly prohibit the kidnapping of women to force them to become wives; strictly prohibit the practice of selling wives, children, and widowed daughters-in-law; strictly prohibit the practice of dowry, strictly prohibit the practice of forcing others to live with the wife's family... Anyone who violates will be handled according to the provisions of the law.
Next, the Government Council issued regulations on March 18, 1975 on organizing weddings, funerals, death anniversaries, and festivals (Issued with Decision No. 56-CP dated March 18, 1973 of the Government Council). According to the provisions of this regulation, for residential areas