Civil Code 2005, according to which, regardless of whether men or women in the community own common property, they have the same rights in managing, using and disposing of the common property of the community. That means if common property is managed, used and disposed of only through the will of men or women, it will be considered illegal and such act will be considered invalid.
Third , many provisions in the Civil Code are compatible with international practices, including the issue of respecting and protecting equality between subjects in general and from a gender perspective in particular, contributing to promoting civil exchanges between Vietnam and other countries in the world, demonstrating the policy of our Party and State on international integration. Specifically, the provisions of the 2005 Civil Code have demonstrated conformity and compatibility with Articles 1, 2, 3, 5, 9, 11, 13, 14, 15, 16 and Article 23 of the CEDAW Convention, as well as the general recommendations of the CEDAW Committee regarding the guarantee of human rights of women and men in society and in civil relations. In addition, basically, the relevant provisions of the United Nations Charter (1945), the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966), the International Covenant on Economic, Social and Cultural Rights (1966)... of which Vietnam is a member have all been internalized by Vietnam in the 2005 Civil Code. In fact, many gender equality rights in the civil field were recognized in law before Vietnam became a member of the mentioned international conventions on human rights.
Fourthly , for the legal system regulating civil relations, the 2005 Civil Code has initially demonstrated its role as a common law, a fundamental law on gender equality in the civil field, through recognizing the basic principles of gender equality in this field.
2.4. Legal provisions on gender equality in the field of marriage and family
Gender equality in the family is currently regulated in Article 18 of the Law on Gender Equality:
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“1. Husband and wife are equal in civil relations and other relations related to marriage and family.
2. Husband and wife have equal rights and obligations in owning common property, equal use of the couple's common income and decision-making on family resources.
3. Husband and wife are equal in discussing, deciding on, choosing and using appropriate family planning methods; using time off to take care of sick children according to the provisions of law.
4. Boys and girls are cared for, educated and given equal conditions by their families to study, work, play, entertain and develop.
5. Male and female family members have the responsibility to share household chores”.
These are general provisions on gender equality in the field of marriage and family. However, to fully assess the law on gender equality in this field, it is necessary to consider additional provisions of the Law on Marriage and Family, focusing mainly on the previous Law on Marriage and Family 2000 and the current Law on Marriage and Family 2014.
Although it was promulgated before the Law on Gender Equality, the 2000 Law on Marriage and Family already contained all the above-mentioned contents of the Law on Gender Equality on the issue of gender equality in the field of marriage and family. The reasonable and progressive elements of gender equality were inherited, developed and perfected by the 2014 Law on Marriage and Family. In general, the 2014 Law on Marriage and Family (and before that, the 2000 Law on Marriage and Family) ensured the perspective of gender equality in the field of marriage and family through the following provisions:
Firstly, both of these laws have made important contributions to concretizing the Party's guidelines and policies, the provisions of the Constitution, and relevant laws on gender equality, anti-discrimination, and eliminating backward customs and practices in marriage and family; promoting the role of the family in social life; and preserving and promoting the fine cultural and ethical traditions of Vietnamese families.
Second, based on the provisions on the basic principles of the marriage and family regime; marriage; the relationship between husband and wife; divorce; the relationship between father, mother, children, and other family members; alimony; guardianship; marriage and family relations involving foreign elements; the responsibilities of citizens, the state, and society toward the family, these two legal documents have created a relatively complete and reasonable legal basis on gender, gender equality, especially the rights of women and children in the field of marriage and family.
Third , by recognizing legal standards for the conduct of family members, the provisions in these two laws have contributed to enhancing and promoting their sense of responsibility in respecting and implementing the rights to gender equality; caring for, looking after, and helping each other; inheriting and promoting the good ethical and cultural traditions of the family and the nation, which are deeply humane.
Fourth , the provisions of the 2000 and 2014 Laws on Marriage and Family are basically compatible with international law and Vietnam's international commitments on human rights in general, gender equality in particular, especially in combating discrimination against women and protecting children's rights. The 2014 Law on Marriage and Family demonstrates a higher level of compatibility , the institutionalization of international standards on gender equality is more comprehensive and profound than the 2000 Law on Marriage and Family.
2.5. Limitations and inadequacies of current laws on gender equality in the fields of civil, marriage and family
2.5.1. Limitations and inadequacies of the law on gender equality in the civil field
From a gender perspective, the provisions of the law as well as the practical application of the 2005 Civil Code still have some shortcomings and limitations, typically as follows:
Firstly, the 2005 Civil Code does not guarantee the principle that civil rights can only be restricted by law in special cases. This is a limitation and inadequacy with the provisions on this issue in Article 16 of the 2013 Constitution. In the 2005 Civil Code in particular, and in the civil field in general, legal documents do not specifically stipulate the restriction of civil rights but often use the phrase "according to the provisions of law" . This provision can be understood that sub-law documents that restrict civil rights are still recognized. This is contrary to the spirit of the 2013 Constitution, which affirms that all restrictions on rights must be prescribed by law. Because of this arbitrariness, especially related to individual rights, including women's rights, are still set forth or ignored, leading to the phenomenon of regulations that do not ensure gender equality. For example, the regulation on the child's surname must follow the father's surname, and can follow the mother's surname if there is an agreement that does not guarantee the mother's rights. In our opinion, on this issue, it is necessary to re-regulate that when registering the child's birth, the parents must agree on whether the child will follow the father's or mother's surname.
Second , the scope of regulation of the 2005 Civil Code is still closed, but too general, not able to cover all relationships formed on the basis of equality, freedom of will, independence of property, self-responsibility, including relationships related to equality.
Gender equality in the civil field. General provisions must be general and open. In the case of closed provisions, the scope must be specifically defined and cover all issues. Because of this contradiction, the provisions of the 2005 Civil Code on civil issues are still lacking, including relations related to gender equality in the civil field.
Third, the 2005 Civil Code, although it has recognized, is not yet specific about the application of international law, application of customs, and analogy of legal provisions; it does not yet stipulate the application of law in cases where there are no provisions of law, no customs, or where it is impossible to apply analogy of legal provisions, leading to the failure to create a complete and timely legal mechanism to recognize, respect, protect, and ensure the rights and interests of the people, including the rights and interests of women, which are important issues in ensuring and implementing gender equality in the civil field. The 2005 Civil Code and civil procedural law have not yet specifically recognized the principle that the Court has no right to refuse to resolve civil cases in cases where there are no provisions of law, no customs, or where it is impossible to apply analogy of legal provisions. In fact, there are many cases where the Court has not resolved these cases simply because there is no basis to apply them.
Fourth, the 2005 Civil Code also has shortcomings in regulating the legal status of individuals, which may cause shortcomings in gender equality issues. Specifically, the Civil Code stipulates that the establishment and implementation of civil transactions of minors, adults who have lost civil act capacity, or have limited civil act capacity must be carried out or agreed upon by a legal representative, but it has not specifically stipulated the relationship between this provision and the rights and interests of third parties in cases where
Establishing and performing transactions that do not meet the above conditions. Next, the Civil Code has not yet specifically regulated the subject capacity and the ability to participate in transactions of people who, due to physical and mental conditions, have difficulty in perceiving and controlling their behavior but have not yet lost their civil capacity, especially for the elderly and people with intellectual disabilities, including both men and women. In addition, in terms of legislative techniques, the provisions on personal rights of individuals in the 2005 Civil Code are still enumerative with a number of 26 rights, leading to both not fully covering the personal rights and interests of individuals in practice and not ensuring stability.
Fifth , the current Civil Code still has many shortcomings when regulating households, leading to different understandings in the application and enforcement of the law, especially regarding issues of household members, their rights and obligations. The bases for determining household members in civil legal relations have not been specifically regulated (based on household registration; marital relationship, blood relationship or based on other bases). In particular, determining based on inconsistent criteria as mentioned above will lead to arbitrariness. Especially when women get married, they often transfer their household registration to their husband's house, but at the time they have not transferred their household registration, the rights and obligations of the household towards other subjects in civil transactions arise.
Sixth, regarding civil transactions, the regulations on the conditions for the validity of transactions are unreasonable, creating many risks of invalidity for transactions, not ensuring the stability of transactions, and possibly creating legal risks for subjects, including women, such as:
- Regarding the form of the transaction, the regulations on resolving the consequences of invalid transactions due to violations of form are still rigid, not really suitable for practice, and do not take into account transactions that, although violating the form,
The parties have performed part or all of the transaction, and their purpose of participating in the transaction has also been achieved. The declaration of invalidity in this case may not guarantee the rights and interests of the parties, causing instability in civil relations.
- Regarding the civil capacity of the transaction participants, the Civil Code has not covered all cases of establishing, performing, and terminating transactions. It can only be met by the subject of the contract and the person directly signing the contract (representative, guardian). As for the transaction of a person without civil capacity or who has lost civil capacity established through a representative, the person without civil capacity or who has lost civil capacity is not a participant in the transaction, because all issues from the establishment to the performance of the transaction are carried out through the representative. That has indirectly deprived the represented person, the person who has lost civil capacity, or the person who does not have civil capacity of participation in the transaction, even though that participation is only indirect participation through the representative or guardian.
Seventh, regarding representation, the provisions on representation of the Civil Code have basically met the requirements in establishing and implementing civil relations, however, some important contents on representation have not been specifically and clearly regulated by the Civil Code, such as: representation in the case of an individual having many legal representatives or by authorization; representation in the case of an individual representing many different entities; implementation and protection of the rights and interests of third parties in the case of one or both parties failing to comply with the provisions on representation. Law enforcement practice shows that those who often bear the risk in this case are women and some other vulnerable groups.
Eighth , regarding ownership and the rights of non-owners, there are still some shortcomings such as: there are no specific regulations on the principles of determining and protecting the rights of the person possessing the property, therefore, in many cases, the person possessing a property is not protected in time, causing instability in the relationship as well as in ensuring the economic value and use value of the property. In addition, the 2005 Civil Code has partially but not specifically recorded the rights of non-owners, such as land use rights, priority rights, usufruct rights, etc. Especially women in these cases, they do not have the ability to directly protect their rights as well as their health, honor, etc. when there are disputes with other entities. Especially in the event of a fight.
Ninth , regarding inheritance, although the provisions of the 2005 Civil Code have ensured gender equality in inheritance, some provisions in the inheritance regime are not specific and do not cover the entire scope, leading to poor assurance of inheritance rights, especially gender equality in inheritance. For example, when the time limit for filing a lawsuit to divide the inheritance expires and the parties do not file a lawsuit to divide the inheritance and cannot reach an agreement on the division of the inheritance, the 2005 Civil Code does not have provisions on the legal status of the inheritance. If the heirs request the competent State agency to issue a certificate of property ownership for the inheritance, these agencies often refuse to issue the certificate of ownership without the consent of all heirs or a judgment or decision of the Court granting them ownership and usage rights. Thus, people will be "stuck" between two regulations without being able to register ownership rights, usage rights... In which, it is often women because of the male chauvinism and the habitual and traditional factors that still assign men to manage the heritage.