care, support but not accompany the development of the children. This is only a small attempt to compensate for the children but cannot fill the emotional void in the hearts of innocent children. The consequences of divorce have caused serious social consequences, directly and deeply affecting the lives and future development of the children.
In addition, children living in divorced families often feel very self-conscious in life, afraid to be intimate when talking about themselves and their incomplete family. Looking further into cases where parents divorce and both pursue their own private lives, the children are suddenly abandoned and lost in life. In fact, children with incomplete families are very likely to fall into the path of crime and the pitfalls of life because there is no one by their side to love and advise them.
Therefore, in the face of the irreparable disadvantages that children are suffering, and the risks that they are likely to fall into crime, it is very necessary for legislators to have regulations to protect the rights and legitimate interests of children whose parents are divorced in a timely and effective manner.
According to Ms. Bui Thi Mung, a complete and synchronous legal system is the most basic means to ensure that human rights are implemented or "Ensuring by law is one of the most important conditions for human rights to be implemented". Legal protection includes the law recognizing the rights and interests of children when their parents divorce and ensuring that those rights and interests are implemented in practice. Basically, the rights and interests of children when their parents divorce are also the rights of children, so protecting the rights and interests of children by law is also protecting children by law, but associated with the divorce of parents, there are special rights.
Protecting the legitimate rights and interests of children when their parents divorce is to ensure their future. Without the attention of society and the protection of the law, today's young buds cannot become useful citizens for society in the future. Children whose parents divorce will suffer disadvantages compared to their peers, and they cannot even take care of themselves. Up to now, Vietnam has had quite adequate policies and a relatively complete legal system to protect the rights of women and children in divorce cases. This is reflected in the provisions of the Law on Marriage and Family, and the international conventions on the protection of the rights of women and children that Vietnam has signed or joined.
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In addition, the significance of recognizing the issue of protecting children's rights by law when parents divorce is also a legal basis to enhance the sense of responsibility of parents. Whether divorced or not, parents still have the right and obligation to love, care for, raise and educate their children because they are still the father and mother of their children, so divorce will not affect the implementation of these obligations of parents. When parents divorce, children are the ones who suffer the most, so parents need to take care of and raise their children more carefully to compensate for their children.
On the other hand, protecting the legitimate rights and interests of children when their parents divorce demonstrates the humanity, democracy and humanitarian nature of socialist law in general and our country's law in particular, demonstrating our state's deep concern for children.
1.4. LAW ON PROTECTING CHILDREN'S RIGHTS AND INTERESTS WHEN PARENTS DIVORCE IN HISTORICAL PERIODS IN VIETNAM
1.4.1. Laws on protecting the rights and interests of children when parents divorce in ancient Vietnamese law
Since ancient times, the Northern dynasties have tried to assimilate the ethnic groups.
Vietnam follows the Han ethnic group, although it has been influenced by the political, social and cultural institutions of China, the Vietnamese people have always tried to preserve many of their good cultural foundations after nearly a thousand years of domination. According to Vu Van Mau, the limits of the scope of the origins of ancient law date back to the French colonial period[14]. In ancient Vietnamese law, there are very few provisions related to the validity of divorce, especially those related to the protection of the rights and interests of children.
Regarding the issue of children, property and some other issues in civil law, the reason why lawmakers do not mention them is because etiquette and customs usually resolve all difficulties satisfactorily. In a patriarchal family, children naturally follow their father's surname and stay in the family with their father, but the Case Advisory Committee explains: " The couple can also agree that some children follow the father and some children follow the mother, depending on each custom ", this is a bright spot in the old custom.
As early as the Ly-Tran Dynasty (11th-14th century), there were regulations related to marriage and family. The Penal Code promulgated by the Ly Dynasty was the first written national law in the history of the nation; however, this law did not contain any content related to the rights and interests of children.
Similarly, in 1341, King Tran Du Tong ordered Nguyen Trung Ngan and Truong Han Sieu to compile the National Dynasty Penal Code (also known as the Penal Code) – which also did not mention the rights and interests of children.
Two documents considered important legislative achievements and of great significance in Vietnamese feudal law have shown many progressive points on marriage and family, namely the Hong Duc Code (also known as "National Dynasty Penal Code") issued under the Le Dynasty during the Hong Duc period (15th century) and the Gia Long Code (also known as "Hoang Viet Law") issued under the Nguyen Dynasty (1815). Ancient Vietnamese law was built on the spirit of Confucianism, marriage was not free " where parents arrange, children sit".
"that ", polygamy and establishing the supreme authority of the patriarchal family system. However, ancient Vietnamese law still has special points such as: " Children must mourn their mother for one year for divorced mothers or remarried mothers " while according to ancient Chinese law: " The connection between mother and children is completely severed when the mother leaves the family ". With the current understanding, this has shown the obligation and also the right of children to show filial piety and remember their mothers. This is a very humane and humanitarian thought of ancient times.
1.4.2. Laws on protecting the rights and interests of children when parents divorce in Vietnamese law from the August Revolution in 1945 to present
* Protecting the rights and interests of children when their parents divorce in the South of our country during the period 1954 - 1975
During the period of 1954-1975, the South of our country was under the rule of the American empire and the Saigon government. The American colonialists replaced the French invaders and implemented a new colonial policy. Because of historical factors leading to major differences in legal regulations between the North and the South, it is necessary to separately record the section on protecting children's rights when parents divorce in the South in the field of marriage and family as a separate part. The marriage and family regime during this period was expressed through 3 documents: Family Law (Law No. 1/59) issued on January 2, 1959 under President Ngo Dinh Diem, Decree No. 15/64 under Nguyen Khanh and the Saigon Civil Code 1972 issued under Decree No. 028/TT/SLU dated December 20, 1972 of President Nguyen Van Thieu. Although issued at different times, in general, these documents have made remarkable changes in the regulations on equality in marriage and family relations. The old marriage system was abolished; monogamous marriage was recognized; patriarchal rights have undergone many changes and are no longer absolute. Decree 15/64 has eliminated unreasonable regulations of family law. When taking power, Nguyen Van Thieu issued the Civil Code.
Saigon 1972 was basically based on Decree 15/64 but was drafted and amended to suit the needs of social development and serve its own needs. However, the resolution of the consequences of divorce in terms of protecting children's rights has not been clearly stated. The issue of property and custody rights, and the obligation to provide child support after divorce are considered and decided by the court based on the assessment of the fault of the parties. For example, the "A person who is not at fault is naturally entitled to raise children under 16 years old" still causes many limitations, not really paying attention to the rights of the child because this may not meet the child's thoughts and wishes.
Looking back in general, the regulations on marriage and family during this period still had a patriarchal and backward ideology, were a tool to protect the reactionary and puppet government, and went against the interests of all our people. The rights and interests of children when their parents divorced were not guaranteed at this stage.
* Protecting the rights and interests of children when their parents divorce in the Marriage and Family Law of our State from 1945 to present
- Period from 1945 to 1959
The legal system of marriage and family in our country since 1945 has regulated the issue of divorce with the viewpoint of both respecting and protecting the legitimate freedom of divorce of spouses, and resolving the reasons for divorce by love and by law. The State controls the freedom of divorce for the benefit of the family and society. The birth of Decree No. 97/SL (dated May 22, 1950) and Decree No. 159/SL (dated November 17, 1950) marked a major turning point of the law on marriage and family in the socialist regime.
If Decree No. 97/SL only stopped at recognizing equality in marital relations without mentioning the issue of divorce and the legal consequences of divorce, these limitations have been gradually overcome in Decree No. 159/SL. Most notably, the protection of the rights of minor children when their parents divorce is specifically stipulated in the Decree:
Article 6: The Court shall base its decision on the interests of the minors to determine their care, upbringing and education.
Divorced spouses must share the costs of raising their children, each according to his or her ability.
This regulation has marked a new point of the law on marriage and family on the issue of divorce and the legal consequences of divorce. The factor of "fault" is no longer an important reason for dividing the obligations between father and mother, it only plays a role in compensation when one of the two parties is at fault with the other, and the husband and wife, whether divorced or not, still have the obligation to bear the cost of raising their children . With the social situation and conditions of our country at that time, it is understandable that this period had limitations on the legal consequences of divorce.
- Period from 1959 to present
After the August Revolution in 1945, the Vietnamese family model had profound changes from the extended family to the household model consisting of husband, wife and children. The household model was officially recognized in the Law on Marriage and Family in 1959. After nearly 6 decades, with 3 amendments and supplements, looking back at the contents of the Law on Marriage and Family in 1959, no one can deny the progress in this law.
The 1959 Law on Marriage and Family was born as the first law on marriage and family under the new socialist regime. In effect, the patriarchal regime was replaced by a cooperative regime between the State and parents in raising children. In addition, the Law emphasized the obligation (not the right) nature of raising children. After its promulgation, the Law only took effect in the North (January 13, 1960). The time of application in the South was March 25, 1977 (the date of promulgation of Resolution 76/CP promulgating the list of legal documents applicable nationwide, including the 1959 Law on Marriage and Family).
The 1959 Act recognized the principle of protecting the interests of children.
After parents divorce, such as: When dividing the property of the couple, the rights of the wife and children must be protected [22]; Divorced couples still have all obligations and rights towards their common children [22]; In principle, children who are still breastfed must be taken care of by the mother. The person who does not keep the child still has the right to visit and care for the child, based on the interests of the child in all aspects, from which to decide who will take care of, raise and educate the minor child after the divorce. Divorced couples must jointly bear the costs of raising and educating the child. For the benefit of the children, when necessary, the custody or contribution can be changed.
share in the cost of raising and educating children [22]; The care, raising and educating of children, the contribution to the cost of raising and educating children will be shared by both parties, ...
In general, the 1959 Law on Marriage and Family has basically fulfilled its function as the first complete legal document of the Socialist Republic of Vietnam, contributing to completely eliminating feudal remnants in the legal aspect of marriage and family, laying a solid foundation for a progressive marriage regime, protecting the rights and legitimate interests of children when their parents divorce.
The 1986 Law on Marriage and Family was enacted to inherit and develop the 1959 Law on Marriage and Family, to continue building and consolidating the socialist family, to preserve and promote the nation's fine customs and practices, to eliminate backward customs and vestiges of the feudal marriage and family regime, and to combat the influence of the bourgeois marriage and family regime. Regarding the legal consequences after divorce related to children, the 1986 Law on Marriage and Family adjusted the regulation that when dividing property, the rights of children must be protected, changing it to protecting the rights of minor children [24]. The subjects of legal concern here have become more specific because the children who are affected and disadvantaged the most are these young children.
In addition, the 1986 Law on Marriage and Family stipulates that a person who does not raise a child
The person who keeps the child must contribute to the costs of raising and educating the child. If the person who does not keep the child delays or avoids contributing, the People's Court will decide to deduct from the income or force the payment of those costs [24]. This is a new but convincing measure to ensure that the father or mother is required to fulfill his or her obligation to support the child.
In response to the changing demands of society in the period of international integration, to enhance the responsibility of citizens, the State and society in building and consolidating the Vietnamese marriage and family regime, the 2000 Marriage and Family Law was enacted to replace the 1986 Marriage and Family Law. The 2000 Marriage and Family Law basically inherits the general principles recognized in the 1986 Marriage and Family Law and has certain supplements. Regarding ensuring the rights of children when parents divorce, the 2000 Marriage and Family Law has made some changes such as: stipulating that the father or mother who does not directly raise the child has the obligation to support the child when the child is a minor or the adult child is disabled, has lost civil act capacity, is unable to work and has no property to support himself or herself has the obligation to support the child [26]; Both parents still have the obligation to look after, care for, educate and raise their children when they are in the above cases; if no agreement is reached, the Court will decide to give the child to one party for direct custody based on the child's interests in all aspects; if the child is nine years old or older, the child's wishes must be considered; children under three years old are given to the mother for direct custody, unless the parties have another agreement [26].
The 2014 Law on Marriage and Family was developed to ensure consistency with other current regulations (such as the Constitution, the Civil Procedure Code, the Civil Code, etc.), and to demonstrate strategic viewpoints on the need to improve the quality and sustainability of marriage and family. The law has consolidated and applied to protect the principle of prioritizing the protection of women and children's rights, especially ensuring the rights of children when their parents divorce.