Perfecting the law on preventing and combating trafficking of women and children in Vietnam today

standard): Trafficking in persons is the recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force, coercion, abduction, fraud, deception, the abuse of power or of a vulnerable position, or the payment of payments or benefits to a person having control over the victim, for the purpose of exploitation, including exploitation through prostitution, sexual exploitation, forced labour, slavery or practices similar to slavery and the removal of organs.

The victim's consent is irrelevant to the constitutive elements of this type of crime where the means of attainment are illegal, the victim is still protected by criminal law (Article 3b of the Protocol and Article 10b of the Convention).

In Vietnamese law, the concept of "human trafficking" is rarely mentioned because in reality there have been no cases of human trafficking. Vietnamese law only regulates the act of buying and selling women and children. From a criminal law perspective, we can see that the crime of buying and selling women and children is regulated in Article 119 and Article 120 of the 1999 Penal Code, however, these two articles do not provide a definition of these acts. Up to now, there has been only one document that has mentioned the definition of child trafficking, which is Resolution No. 04/HDTP dated November 29, 1986 of the Council of Judges of the Supreme People's Court guiding the application of a number of provisions in the section on crimes of the 1985 Penal Code. According to this Resolution: "Child trafficking" is understood as "the act of buying or selling children for personal gain, whether buying from the person who stole them or buying from the person whose child is being sold. The act of buying a child when knowing that the child was stolen is also handled as the crime of child trafficking. Similarly, the concept of "trafficking in women" is understood as the act of buying or selling women for personal gain.

Thus, "trafficking in women and children" under Vietnamese law is generally understood as the transfer of women and children from one person or group of people to another person or group of people in exchange for money or other material benefits.

In addition to the use of the term "trafficking in women and children", the term "trafficking in women and children" is also used in a number of legal documents, namely: Clause 2, Article 103 of the 2000 Law on Marriage and Family stipulates: "It is strictly forbidden to take advantage of marriages involving foreign elements to traffic women..." [36]; Decree No. 68/2002/ND-CP detailing the implementation of a number of articles of the 2000 Law on Marriage and Family on marriage and family relations involving foreign elements: "It is strictly forbidden to conduct business activities in the service of

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"Brokering marriages or taking advantage of marriage support to buy and sell women..." (Article 21), "It is strictly forbidden to take advantage of adoption for the purpose of exploiting labor, sexually abusing, or selling children..." (Article 35) [18]; Clause 2, Article 24 of the Ordinance on Prostitution Prevention and Control stipulates: "Anyone who brokers prostitution, harbors prostitution, forces prostitution, organizes prostitution, or buys and sells women or children to serve prostitution activities shall be prosecuted for criminal liability" [49].

Thus, synthesizing the concepts of international law on human trafficking in general, as well as legal norms in the field of preventing and combating the trafficking of women and children in Vietnam today, we would like to present the concept of trafficking of women and children as follows: trafficking of women and children is the act of a person or a group of people, for personal gain, deceiving, forcing, threatening to use force or using force, in order to recruit, transport, harbor and deliver women and children to another person or group of people in order to receive money or other material benefits.

1.1.1.2. Characteristics of the behavior of buying and selling women and children

As we know, behavior is the reactions and ways of behaving that are expressed outwardly by humans in certain circumstances and conditions. Each behavior is formed on the basis of the awareness and control of the subject who is conscious and actively performs it. Human activities in an unconscious state cannot be considered behavior. Behavior must be expressed outwardly in different ways (action or inaction), that is, it must be expressed in the objective world through the actions or inactions of the subject, which other subjects can recognize. Because the behavior of subjects is revealed in the objective world, it is social (has social significance, can positively or negatively affect society). Therefore, there must be social supervision and adjustment of human behavior. Depending on the characteristics and areas of expression of human behavior, society sets different standards and tools to regulate them. Any human behavior that is regulated and regulated by law is considered a legal behavior. Any legal behavior that is performed in accordance with the requirements and demands of the law (the subject carries out the actions required by the law such as exercising his/her legal rights and obligations; not doing what the law prohibits; activities

(within the scope of the law) is a legal act. Acts performed contrary to the provisions of the law such as not doing what the law requires, doing what the law prohibits, operating beyond the scope of the law are illegal acts (illegal) [45, p. 491). According to the above analysis, the act of "trafficking in women and children" is understood as the reactions and behaviors expressed outwardly by people with sufficient capacity (legal capacity and behavioral capacity) to carry out the act of "trafficking in women and children". Thus, the act of "trading in women and children" is an illegal act (violating Articles 119 and 120 of the 1999 Penal Code) and the elements constituting the act of "trading in women and children" will include: first , the subject performing the act of "trading in women and children" must be a person with full legal capacity and capacity to act; second , the manifestations in the objective world through the actions or inactions of the subject performing the act of "trading in women and children", which other subjects can recognize.

From the above analysis, if we compare the manifestations of the behavior of buying and selling women and children (defined by law) according to the provisions of international law and Vietnamese law, it shows that:

- According to the Protocol on Trafficking in Persons, the activities of buying and selling women and children will include the following acts: recruiting, transporting, transferring, harboring or receiving people for the purpose of exploitation.

- According to the provisions of Vietnamese law, the act of buying and selling women and children is simply the act of transferring women and children from one person (group of people) to another person (group of people) in exchange for money or other material benefits.

1.1.2. Concept and role of law in preventing and combating trafficking of women and children

The Marxist-Leninist doctrine of state and law for the first time in history theorized

correctly and scientifically explain the nature of law and its relationships with various phenomena in class society. Law only arises, exists and develops in class society. Law is absolutely not a pure product of reason or non-class human nature like "natural law"

concept. Besides its class nature, law also has a social nature. Law is issued by the state, the official representative of the whole society. Therefore, to some extent, law also reflects the will and interests of different classes and strata in society. Thus, law is a system of general rules of conduct (legal norms) issued or recognized by the state, reflecting the will of the ruling class, guaranteed by the state to be implemented, including by coercive measures, to regulate social relations, maintaining society in an order that is beneficial to the ruling class [32, pp. 139-141].

As a factor regulating social relations, law plays an important role in ensuring social stability and development. In Vietnam, the role of law has been recognized in Article 12 of the 1992 Constitution as: "The State manages society by law and constantly strengthens socialist legality" [31]. Thus, the role of law is demonstrated in the following basic aspects:

Firstly , the law is the basis for establishing, consolidating and strengthening state power: one of the affirmed principles is that the state cannot exist without the law and the law cannot exert its effectiveness without the strength of the state apparatus. Practice shows that when there is not a complete, synchronous, appropriate and accurate system of legal regulations on organization to serve as a basis for consolidating and perfecting the state apparatus, it will lead to duplication, overlap, and improper implementation of functions and powers of a number of state agencies, the apparatus will be cumbersome and ineffective. Similarly, the law plays an important role in regulating the duties, powers and responsibilities of each type of cadre, each cadre working in each specific agency of the state apparatus. Thanks to the law, the phenomena of abuse of power, excuses, irresponsibility... of state officials are easily detected and eliminated.

Second , the law is a means for the state to manage the economy and society: the state is the official representative of the whole society, therefore, the state has the function (task) of managing the whole society. To manage the whole society, the state uses many means and measures, but the law is the most important means. The law has the ability to implement the state's policies and guidelines in the fastest, most synchronous and most effective way on the largest scale. Thanks to the law, the state has the basis to promote its power and inspect and control the activities of organizations and agencies.

officials, state employees and all citizens. In economic organization and management, the law plays an increasingly important role. Because the state's economic organization and management function is wide and complex, including many issues and relationships that the state needs to establish, operate and control, such as economic policy planning, determining planning targets, regulating financial, monetary and price regimes... the entire organization and management process requires the active operation of the state to create a synchronous mechanism, promoting the right development of the economy to bring about practical results. The economic management process cannot be carried out without relying on the law.

Third , law contributes to creating new relationships: besides the reflective function, law also has a pioneering role, guiding the development of social relations. On the basis of determining the social reality with specific, typical situations (events), existing and recurring frequently at specific times in society, the state sets out laws to make timely and appropriate adjustments. But life is lively and reality often takes place with frequent changes. Based on scientific results and forecasts, people can predict changes that may occur with specific, typical situations (events) that require legal adjustment. From there, laws are set out to provide guidance in advance, establish regulations and can design organizational models that stipulate functions and tasks and organize testing...

Fourth , the law creates a stable environment for establishing diplomatic relations between countries: the law always plays a role in maintaining stability and social order for a country. The stability of each country is an important condition for creating trust, the basis for expanding relations with other countries. In today's era, the scope of international relations between countries is increasingly large and the content and nature of those relations are increasingly multifaceted (multi-faceted). The basis for establishing and strengthening those relations is the law (international law and national law). Based on that need, the legal system of each country also has a new development step, which is the construction of legal documents to regulate and adjust social relations arising between domestic people (organizations) and foreign people (organizations). Thus, to effectively implement state management, accelerate social development, expand relations and cooperation with other countries, it is necessary to focus on promoting the role of law and quickly build a legal system.

comprehensive, adequate and synchronous, suitable to domestic conditions and circumstances, and at the same time suitable to the general development trends of the international and regional situation [45, pp. 78-79].

With the above perceptions, the concept and role of the law on preventing trafficking of women and children in Vietnam can be presented as follows:

The law on preventing and combating trafficking in women and children in Vietnam is a part of the legal system of the Socialist Republic of Vietnam. Thus, the law on preventing and combating trafficking in women and children reflects both the meaning and role of the law in general and the meaning and role of the specific legal field (preventing and combating trafficking in women and children). It can be said that the law on preventing and combating trafficking in women and children is a system of rules of conduct promulgated or recognized by the Socialist Republic of Vietnam and ensures implementation, institutionalizing the guidelines and policies of the Communist Party of Vietnam, expressing the will of the working class and working people as a factor regulating social relations related to preventing and combating trafficking in women and children in Vietnam. From that, we can see the role of the law on preventing and combating trafficking in women and children in the following aspects:

- Is the basis for establishing, consolidating and strengthening state power in the field of preventing and combating trafficking of women and children;

- Is a means for the state to manage society, creating a favorable legal basis for preventing the trafficking of women and children;

- Is to create a stable environment for international cooperation in preventing trafficking of women and children.

Through the analysis of Vietnamese legal regulations related to the trafficking of women and children, it can be seen that this is a newly formed legal field, with a development process from incomplete to gradually completed. Another characteristic is that the law on the trafficking of women and children includes many regulations belonging to many different branches of law such as: criminal law, civil law, administrative law and other branches of law... These regulations are still scattered and unsystematic. Due to the specific nature of preventing and combating the trafficking of women and children, international cooperation is required, so the law on the trafficking of women and children has a part.

are provisions related to foreign law, international law and international treaties to which Vietnam is a member in the prevention of trafficking in women and children. Recognizing the above characteristics is very important in determining the needs, content and form of law in the field of prevention and combat of trafficking in women and children in Vietnam in the coming time.

1.2 CONCEPT AND CRITERIA FOR IMPROVING THE LAW ON PREVENTION AND COMBAT OF TRAFFICKING OF WOMEN AND CHILDREN

1.2.1. Concept of perfecting the law on preventing and combating the trafficking of women and children

In the Vietnamese Dictionary, the adjective " complete" means so good and complete that there is no need to do anything more; and the verb " complete" means to make perfect [46, p. 450]. Thus, perfecting the law on preventing and combating trafficking in women and children is understood as the work of eliminating, amending, supplementing, and building new legal documents, aiming to create a system of comprehensive, complete, and synchronous legal regulations, suitable for domestic conditions and circumstances, and at the same time suitable for the general development trends of the international and regional situation, so that the prevention and combating trafficking in women and children achieves optimal efficiency; accordingly, the following contents:

+ Eliminate outdated, inadequate, and unsuitable legal documents and regulations that are no longer relevant to the prevention of trafficking in women and children.

+ Amend and supplement outdated and inappropriate legal documents and regulations to suit reality.

+ Develop new legal documents: for new issues arising in society (new social relations), but there are no legal documents to regulate, it is necessary to immediately develop new documents, regulations, and laws to regulate.

1.2.2. Criteria for perfecting laws on preventing and combating trafficking of women and children

The law on preventing and combating trafficking in women and children is an integral part of the Vietnamese legal system. Therefore, the criteria for perfecting the law on preventing and combating trafficking in women and children are built on the basis of the criteria for perfecting the legal system in general.

and a general assessment of the current legal system on preventing and combating the buying and selling of women and children in Vietnam.

1.2.2.1. Criteria for perfecting the legal system in general

There are many criteria to determine the level of perfection of a legal system, of which four basic criteria are:

- Criterion of comprehensiveness: comprehensiveness is the first standard that shows the level of perfection of a legal document or of the entire legal system. This criterion is meaningful in "quantifying" a legal document as well as the entire legal system. Therefore, it is very important, because only on the basis of "quantification" can we continue to research to "qualify" in law-making in general.

The comprehensiveness of the legal system is demonstrated at two levels:

+ At the general level of the legal system, it is required that the legal system must have all branches of law according to a logical content structure and be expressed uniformly in the corresponding system of legal documents.

+ At the specific level for each legal sector, each legal document must have sufficient legal institutions and legal norms.

- Criteria of consistency: consistency shows the unity of law. A legal system will be incomplete when its parts are duplicated, overlapped or contradictory. The consistency of the legal system is also shown at two levels:

+ At the general level, it is the synchronization between the branches of law. To achieve this goal, two major problems need to be solved: first , the boundaries between the branches of law must be clearly defined; second , a basic system of legal norms (expressed in legal documents) must be created to create a basis for strengthening the unity of the entire legal system.

+ At a specific level, synchronicity represents unity, non-contradiction, non-duplication, and overlap in each legal sector, each legal institution, and between legal norms. To create synchronicity in each legal sector, it is necessary to thoroughly and correctly resolve the relationship between the legal sector-legal institution-legal norms. That requires

Perfecting the law on preventing and combating trafficking of women and children in Vietnam today - 2

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