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Identifying Inherited Values ​​from the Regulations on Protecting the Rights of Disadvantaged Social Groups of the Hong Duc Law

Chapter 3:

INHERITANCE VALUES FROM THE PROVISIONS ON PROTECTING THE RIGHTS OF DISADVANTAGED SOCIAL GROUPS OF THE HONG DUC LAW CODE

AND INHERIT THOSE VALUES IN THE PROCESS OF IMPROVING THE LAW ON PROTECTING THE RIGHTS OF DISADVANTAGED SOCIAL GROUPS IN VIETNAM TODAY


3.1. Identifying the inherited values ​​from the provisions on protecting the rights of disadvantaged social groups of the Hong Duc Law

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The Hong Duc Code is considered a unique legal cultural heritage of Vietnam, and no other legal work in the history of the Vietnamese state and law has been comparable[4, p.94]. This is a code that has a strong, comprehensive, and profound influence on all activities in all areas of contemporary political and social life. Not only that, it is also a code that has existed and been effective for a very long time with strong and lasting vitality in reality. The Hong Duc Code was applied throughout the 360 ​​years of the Le Dynasty. Even after the Gia Long Code (Hoang Viet Law) was born, many contents of the Hong Duc Code were still valid. Many contents of the Hong Duc Code were also assessed by researchers as being more progressive and modern than the Gia Long Code, which was born several hundred years later. In particular, the legislative technique of the Hong Duc Code has reached a high level that today its value is still studied and applied in the process of building and perfecting the legal system of Vietnam.

The Hong Duc Code was formed with the birth of the early Le feudal state. Its content and form were subject to the socio-economic conditions of feudal society. This was a period when most of the means of production were in the hands of the feudal landlord class, so the law was also the will of the feudal landlord class and a means to protect the interests of the feudal landlord class, not to express the will of the majority of people, especially the peasant class and disadvantaged social groups in society. Although appearing in such a context, this code itself contained many progressive elements. The awareness, viewpoints and legal policies of Vietnamese lawmakers in the feudal period

Identifying Inherited Values ​​from the Regulations on Protecting the Rights of Disadvantaged Social Groups of the Hong Duc Law

There are many points that are very consistent with the progressive thoughts, viewpoints, and legal policies on issues such as human rights, humanity, justice, and civil society that were formed in the Renaissance period, the 18th, 19th, and 20th centuries[38]. Although there are still many limitations, from the progressive values ​​of the Hong Duc Code, we can still see the contents that are ahead of their time, demonstrating humanity, profound progress, and great values ​​in terms of ideology and legislative techniques. Although the Code does not mention the issue of human rights in general, the Code itself stipulates many contents related to basic human rights such as the right to inheritance, the right to ownership, the right to be cared for by the state when sick, old and homeless, the right to access justice... these are some of the contents that modern legal science calls human rights. In particular, the law also has many provisions to protect the rights of subjects belonging to disadvantaged social groups. Moreover, not stopping at prescribing, the legislator has made those regulations implemented in practice. Therefore, it is evaluated as "a model for governing the country, a rule to force the people " [4, p.94]. Those values ​​​​still need to be learned and applied in the process of building a socialist rule of law state. Of course, the inheritance, reception and application of the values ​​of the law of the current feudal period must comply with certain principles. The reason is that the nature of our current regime is a socialist regime and under the leadership of the Party. The main means of production are owned by the entire people and managed by the unified state. State power belongs to the people. Law is the unified will of the entire people, the people are the masters of the state, the masters of the regime, are allowed to participate in the construction, organization and operation of the state apparatus, and are allowed to supervise the activities of the state. The nature of our current state is completely different from the feudal state of the early Le Dynasty. Therefore, the reception and inheritance of the values ​​of the laws of the early Le Dynasty must comply with the principles of the socialist regime such as the principle of people's sovereignty, the principle of socialist legality, the principle of respect for the supremacy of the Constitution and laws, the principle of Party leadership... and other basic principles of our regime. Inheritance does not mean copying the exact content, form and spirit of the feudal laws of the early Le Dynasty, but must eliminate negative imprints, select progressive values ​​that are still suitable for current reality.

today. At the same time, inheritance and reception must always be associated with promoting those values, bringing them to a new level, contributing to promoting the humane and fine traditions of our nation. However, it must be based on the viewpoint of respecting history and objectivity in research and inheritance. Many issues of the Hong Duc Code cannot be mechanically applied in today's society, but there are still many values ​​that we can apply to perfect the legal system in the process of building a socialist rule of law state in the current period.

3.2. Inherited values ​​from regulations on protecting the rights of disadvantaged social groups in the Hong Duc Law

3.2.1. Inherited values ​​from regulations protecting women's rights in the Hong Duc Code

In the early Le Dynasty, the legal status of women was very low. They had to live dependently and were not free to decide their own lives. This happened not only in Vietnam but also in many countries around the world, including Eastern and Western countries.

In the criminal field, the Hong Duc Code has many provisions showing concern and protection of women's rights, clearly demonstrating humanity, leniency and education such as provisions on mitigating crimes, mitigating corporal punishments for women, postponing the execution of punishments for pregnant women and women who have given birth less than 100 days; severely punishing acts that violate the honor and dignity of women, especially girls... All of these have shown the recognition of the law for the role of women, a harmonious combination of the law with the traditions of the Vietnamese people. It shows the state's concern for protecting women's rights, and demonstrates the idea of ​​respecting women's rights.

In the civil field, the Hong Duc Code has many provisions of great, important and progressive value, first of all, considering women as independent subjects, not dependent on men, having independent rights and obligations, and having their legitimate rights protected. The law also recognizes women's ownership rights while the laws of China and Western Europe at the same time do not recognize them. Not only do women have the right to own private property, the right to own property in common with their husbands, but they also have the right to manage common property in the family. Women also

have the right to inherit, even inherit the incense, and take responsibility for ancestor worship in case the family has no son to continue the family line. The inheritance of daughters is encouraged to be equal to that of sons to avoid discord in the family. Another special point is that the Code has paid attention to protecting the rights of slaves, who have a low status, are dependent, and are sometimes considered a property of the owner...

In the field of marriage and family, the Hong Duc Code harmoniously combined Confucian moral values ​​with traditional Vietnamese customs to create a system of unique regulations on marriage and family. The outstanding progress of the Hong Duc Code compared to the codes in many other countries at the same time was that it gave women some basic rights, first of all, it recognized women's right to divorce. Regarding divorce, in addition to cases of forced divorce due to violations of marriage prohibition regulations (Articles 317, 318, 323, 324, 334), divorce can also be due to the fault of the wife or the fault of the husband. In the case of divorce due to the fault of the wife for violating the " absolute loyalty " provisions, the husband must abandon his wife, and if he does not, he will be punished with exile (Article 310). But contrary to Chinese law, the code unified the concept of “ seven-incompatibility ” and “ absolute right ” cases to limit the cases where men were forced to abandon their wives, while according to Tang law, the Marriage chapter stipulated five cases of “ absolute right ” and also stipulated “ hoa ly ” (voluntary divorce due to incompatibility) and “ reporting for divorce ” (reporting to local authorities for divorce). Thereby, the code indirectly regulated the husband’s responsibility in the family. The law also allowed daughters to break off their marriages, regulated the age of marriage, punished those who took advantage of their positions and power to force them into marriage, etc. Considering the historical and social context of that time and the legal systems of other countries of the same period, it is clear that the Hong Duc Code demonstrated respect and protection of women’s rights, containing progressive and noble humane values.

In the field of litigation, the law also has many lenient provisions for women such as: temporary suspension of sentence execution when pregnant or giving birth less than 100 days. During the process of detention, investigation, trial and sentence execution for women, there are also many provisions to limit the arbitrariness and abuse of power by those who

public servants to violate the body, dignity and chastity of women.

Thus , in all the basic areas regulated by the Hong Duc Code, women's rights are taken care of and protected. These contents clearly demonstrate the spirit of humanity, respect and protection of women's legitimate interests. Although the current legal system has more progressive and complete provisions, inheriting the progressive values ​​of the Hong Duc Code while adding new values ​​and new contents is still an important and meaningful task in perfecting the current legal system.

3.2.2. Inherited values ​​from the provisions protecting the rights of criminals in the Hong Duc Code

One of the characteristics of feudal law in Vietnam and China is that it is criminal. Most of the laws are built in the form of criminal law norms and all apply sanctions as penalties. Therefore, the concept of crime is understood very broadly, violations in fields such as civil, administrative, marriage and family... can also be considered crimes and subject to penalties. In the criminal field, the Hong Duc Code has built a fairly complete system of crimes and includes almost all crimes considered basic under modern criminal law. In addition to the provisions protecting the rights of criminals who are subjects belonging to vulnerable social groups such as women, the elderly, and children, which have been analyzed separately, the Hong Duc Code also has many contents protecting the rights of subjects who are ordinary criminals.

The special and progressive point in the Hong Duc Code is the strict but lenient criminal policy. There is a distinction between intentional and unintentional mistakes; a distinction between accomplices and masterminds; and also attention to the personal issues of criminals... To demonstrate leniency, the law has many provisions to reduce punishment and make concessions for criminals such as: reducing the sentence if they confess, if they commit a crime by mistake; allowing redemption in money for certain cases and crimes. For the same crime, if the perpetrator is a commoner, the punishment will be reduced more than if the perpetrator is an official. Compensation and redemption money are also lower than

with officials… Those regulations show severity but are still humane and lenient towards criminals.

The law of the early Le Dynasty clearly defined the responsibilities of those performing public duties in the process of investigation, arrest, detention, and trial in order to limit arbitrariness, irresponsibility, and abuse of power in order to better ensure the rights of criminals. The activities of those performing public duties must comply with the law, and the law must not be applied arbitrarily, baselessly, and unnecessarily. At the same time, the law also clearly stipulates sanctions for those who apply the law if they do not comply with the law. That contributes to making the law strictly implemented, avoiding all acts of abuse of power and violations of the law by those performing public duties. Thereby, contributing to ensuring that regulations protecting the rights of disadvantaged social groups are implemented in practice.

The Hong Duc Code sets out many principles that law enforcement agencies must follow, such as the principles of public and collective trials, compliance with the law only, majority decision, understanding and reason, and mitigating crimes when there is still doubt... Many of these principles are still inherited by modern law today. During the investigation and trial process, torture, physical abuse, and beating of criminals must not be used arbitrarily, and the person must not be allowed to die or be treated for illness... All of these provisions aim to limit wrongful trials, violations of the life, health, and dignity of criminals, and to ensure that the trial process is conducted fairly, accurately, objectively, and in accordance with the law, thereby protecting the rights of the people, especially criminals.

3.2.3. Inherited values ​​from regulations protecting the rights of the elderly and children in the Hong Duc Law

The regulations for the elderly and children clearly demonstrate the humanity, leniency, and education of the law, and are also consistent with the traditional morality of the Vietnamese people, close to modern legal thinking, although there are still limitations. To protect vulnerable groups such as the elderly, children, and those with poor health, who do not have the ability and conditions to protect their property such as children, insane people, drunk people, etc. against acts of property infringement by these groups of subjects.

In this case, the law has prescribed increased penalties, with penalties twice as severe as in normal cases. In this way, lawmakers have limited the abuse and protected the rights of these subjects. The prohibition of law enforcement officers from torturing the elderly over 70 years old, children under 15 years old, and the disabled has shown concern and humanity for groups of subjects with poor health or physical disabilities, and at the same time clearly demonstrated the strictness and humanity of the law.

In the civil field, the rights of children, orphans, adopted children, and concubines are also protected. The law stipulates the age at which children can participate in civil transactions to avoid taking advantage of children's immaturity and limited awareness for personal gain. The mechanism for managing the assets of children and orphans is also implemented very strictly, and the law also stipulates severe punishment for acts that violate the rights of orphans. That mechanism partly protects the assets and rights of children, which is a very progressive value of the Hong Duc Code. For lost children, the elderly, the lonely, and the homeless, the law also links their rights to the responsibilities of local authorities, creating an effective protection mechanism for these subjects, demonstrating the humanity in the law.

3.2.4. Inherited values ​​from regulations protecting the rights of other vulnerable groups in the Hong Duc Code

In addition to the target groups of women, the elderly, children, and criminals, the lawmakers of the early Le Dynasty also paid attention to other groups such as ethnic minorities, slaves, widows, the disabled, and the mentally ill. For ethnic minorities, lawmakers prohibited illegal acts against them and respected their customary laws. Severely punished cases that violated their rights or discriminated against them, preventing them from exercising their rights like other ordinary people. That demonstrated a skillful way of handling the balance between the law and local customary law. Thereby, strengthening the relationship between the state and ethnic minorities, contributing to strengthening the strength of internal harmony, strengthening the spirit of solidarity among ethnic groups in the country, thereby contributing to building the tradition of national solidarity of the Vietnamese people.

The law also has provisions to care for and protect the rights of slaves, hired workers, servants... they are people who inherently have a low and dependent status.

In society, slaves are sometimes considered as the property of their owners. In addition to regulating the responsibilities and obligations of slaves to their owners, lawmakers also pay attention to protecting their rights, avoiding the owners from arbitrarily harming them, such as tattooing words on their faces, beating or killing them... That is a special progressive point of the Hong Duc Code that the laws of many other countries at the same time did not have.

For widows and widowers who are disadvantaged and emotionally damaged; lonely, poor people with no place to rely on, unable to earn a living, sick people with no one to take care of them and have to live in poverty, the law also links their rights to the specific responsibilities of local officials to raise, care for, treat and bury these people properly. These are unique laws originating from the reality of Vietnamese society, progressive content and special values ​​of the law, and the application of Confucianism in the spirit of nationalism and creativity[19].

Thus , the Hong Duc Code contains many humane, progressive, unique and new values. It is not a simple copy, applying the legal provisions of the Chinese feudal Codes. In particular, the provisions on disadvantaged social groups are very unique provisions, containing many research values, applying to modern law. Those progressive and humane provisions have valuable reference meaning for the construction and completion of the current legal system and are also what makes each of us feel proud of the cultural and legal traditions of the nation.

3.3. Current practice of building, implementing and applying laws on protecting the rights of disadvantaged social groups in Vietnam.

3.3.1. Current practice of law making on protecting the rights of disadvantaged social groups in Vietnam

In the field of building the legal system in general and the law on protecting the rights of disadvantaged social groups in particular, our country has achieved many remarkable achievements. The number of documents issued in the field of ensuring human rights and the rights of disadvantaged social groups is increasing with increasingly high quality and legislative techniques. The law has recognized and built many mechanisms to ensure basic human rights according to the Conventions that Vietnam has signed and implemented.

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