Even if the children hate giving less, the children love giving more, then the one who gives less has the right to demand a division, even if the will has been made[31, p.285]. This provision creates conditions for disadvantaged children (including daughters) to demand equal rights in inheriting their parents' property. Even in cases where the parents die without leaving a will, the principle of equality is still protected by law. This is one of the most unique, equal and progressive features of the Hong Duc Code compared to the laws of other countries of the same period, although it is still influenced by the laws of the Tang and Ming dynasties, and influenced by Confucian ideology with the concept of " women outside the family ".
In Chinese law at that time, women were not entitled to inherit anything from their parents' estates. The fact that the Hong Duc Code stipulated and guaranteed women's inheritance rights and the right to leave inheritance to their biological parents and heirs in their family line was truly a remarkable advancement. Not only being entitled to inherit, keeping the ancestral altar is a sacred right and obligation in the traditional family of the Vietnamese people. Although the natural and prioritized person is always the eldest son or grandson, in some cases, the daughter or granddaughter also has the right to keep the ancestral altar and worship the ancestors: "If the person keeping the ancestral altar has an eldest son, he/she will use the eldest son; if there is no eldest son, he/she will use the eldest daughter " (Article 391). Or according to the provisions of Articles 395 and 397, the daughter is entitled to the ancestral incense in the following cases: " Parents give birth to 2 sons, the eldest son only gives birth to daughters, the second son has a son, then the ancestral incense is given to the son of the second son; but the son of the second son only gives birth to daughters, then the previous ancestral incense must be returned to the daughter of the eldest son ."
The Hong Duc Code also borrowed quite a lot of content from the laws of the Tang and Ming dynasties. But among the 456 articles that are unique and cannot be found in Chinese law, the lawmakers of the early Le Dynasty created and added them to the Hong Duc Code, there are very unique and special contents. Especially the articles regulating the ownership and inheritance rights of women. These are truly new and progressive points, especially in the historical and social context of that time.
2.1.1.3. Protecting women's rights in the field of marriage and family
In the Hong Duc Code, marriage and family relations were comprehensively regulated. These relations both had the characteristics and imprints of the nation's own customs and practices and were influenced by Confucian ideology and Chinese law. The Le Dynasty kings always considered Confucianism an important tool to reform their subjects and build a prosperous country. Commenting on this, researcher Insun Yu wrote: " The purpose of Thanh Tong in using family laws was to change the entire Vietnamese society according to Confucian ideology, through the tool of family ethics " [43, p.41]. According to Confucianism, human life revolves around 5 basic relationships: monarch and subject, father and son, husband and wife, brothers and sisters, and friends. Of which, 3 relationships are directly related to the family, showing how important the role of the family is in society. However, unlike today, marriages in the early Le Dynasty were rarely established on the basis of love and the voluntary consent of both parties, but were often decided by the parents. Marriage in the old society was first and foremost for the benefit of the family and clan, so “ equal social status ” was the most important condition. Moreover, marriage was mainly for the purpose of having children to continue the family line, not for love, so the consent of the children was not important, but the consent of both parents was important.
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An important feature of the marriage system under the early Le Dynasty was that the state maintained and protected the polygamy system. Men were allowed to marry many wives but were only allowed to have one main wife. When this person died, he could take another wife as his second wife. Before the main wife died, the other wives were only called concubines or maids. The order of hierarchy was strengthened and protected. The distinction between concubines and concubines and the main wife made their rights and the rights of their children not fully guaranteed and protected. Not all women could be married. According to Article 339, women who were found guilty and hiding to be married as a main wife or concubine were punished. Officials were not allowed to marry women in their districts. Officials and their descendants, and subordinates were also not allowed to marry women who worked as singers... Thus, in general, in the field of marriage and family, women were often the ones who suffered the most. Society places many demands, standards and responsibilities on them. Not only do women have to ensure the " four virtues " (public,
The wife must be absolutely faithful, and must obey her husband, must not be jealous, must not abuse her power, must not despise her husband, must not beat or denounce her husband. The act of beating or denouncing her husband is a crime of "unscrupulousness" - one of the ten "devils" - especially serious crimes that cannot be tolerated. However, although a husband beats his wife to the point of injury or death, the punishment is three levels lighter than beating or killing an outsider. The compensation is also three levels lighter than that for an outsider. The discrimination against women is shown too clearly. If the wife is guilty and is beaten to death, the punishment is different from the crime of intentionally killing her wife. If a concubine beats her husband, her husband's younger brother, sister, or relatives, she will be punished even more severely [41, articles 481, 482, 483, 484]. Thus, for the same act, when the husband is punished lightly, the wife is punished severely, and the concubine is punished even more severely. This shows discrimination against women. The honor and shame of the wife is linked to the husband. If the husband commits a crime, the wife will also be punished, but if the wife commits a crime and her husband is an official, the punishment will be reduced. If the husband is killed and the wife reconciles privately with the killer, she will be sentenced to exile. If the husband dies and the wife does not mourn, but enjoys herself, dresses as usual, or remarries, she commits the crime of " unrighteousness " - one of the ten " heinous crimes ". However, the legislator does not mention the husband's obligations in this matter.
In marriage, women are often put in the situation of " where parents put children, there sit ", especially women in upper-class families, from a very young age they have to live a closed life in the " boudoir ", without the opportunity to meet, learn about and choose the man they will marry. Men can have " five wives and seven concubines ", can commit adultery, can have children out of wedlock... They can also be condemned by public opinion, but in any case, that condemnation cannot be compared to what women have to endure if they " cross the line " of etiquette. The end result is that they receive discrimination from the community and even have to suffer cruel punishments such as " shaving their hair, applying lime, and letting them float down the river ". Men can have many wives at the same time, but women are only allowed to
Having only one husband, having to depend on her husband, shouldering many heavy responsibilities in her husband's family, performing many obligations not only to her husband but also to her husband's family and clan. If a woman cannot fulfill those heavy responsibilities (maybe not because of her fault but because of other objective reasons such as not being able to give birth, having a bad disability...) she can be replaced, forced to divorce, have her property taken away, be condemned by public opinion, and severely punished...
The Hong Duc Code has many provisions to protect women in the field of marriage and family. This is also the first time in history that women have the right to divorce (although there are still many limitations and inequalities), but in any case, it is a big step forward in the legislative history of Vietnam. Women have the right to divorce in 2 cases as stipulated in Articles 308 and 333. According to Article 308, a wife is allowed to divorce her husband in the case that the husband has "abandoned his wife for 5 months without going back and forth... if the wife has children, the time limit is 1 year ". However, the wife can only divorce if she reports to the local authorities and has the commune authorities as witnesses. If the authorities grant the divorce but the husband intentionally prevents the wife from marrying another man, he will be sentenced to death. The second case is divorce according to the provisions of Article 333 " if the son-in-law uses unreasonable reasons to scold his wife's parents, he will be granted a divorce if he reports the matter to the authorities ". In both cases where women have the right to divorce, the law gives the couple the right to behave themselves, decide their own happiness, and solve their own problems. This is similar to when a wife beats her husband or a husband beats his wife or when a husband is too infatuated with his maid and is indifferent to his wife, the wife must report to the authorities for consideration and handling... In cases where the couple chooses to reconcile with each other or tolerate each other, the law will not handle it, except in cases of murder, when the state intervenes, otherwise the law lets them decide their own family matters. In the feudal laws of both the East and the West, there is no such provision. The right to divorce is one of the basic rights of women, a measure of the level of civilization and freedom of the nation, people and humanity. The right to divorce of women in the Hong Duc Code " is a unique feature, full of humanity and courage, demonstrating the bravery and human rights of a Vietnamese emperor, very modern and progressive, not yet seen in any feudal regime from the East to now"
The West dares to mention and especially raises it to the level of a legal code ” [28. pp. 199-203]. Through the regulation of the right to divorce, especially in the first case, the legislator indirectly regulates the husband's responsibility towards his wife. The fact that the husband " leaves " his wife for a period of 5 months or 1 year shows sympathy for cases where the wife is not cared for by her husband, does not care for her, leaving her to live in a situation where the marriage is not harmonious. The main reason for divorce here is not due to the time of separation (because the law also stipulates that " being away for official business is not subject to this law ", so no matter how long the husband is away, it cannot become a basis for the wife to request a divorce), but the divorce here comes from the attitude and way the husband treats his wife during their cohabitation. Therefore, the purpose of this regulation is to promote the husband's responsibility in the family. If a husband does not treat his wife well, he may lose her. This regulation contributes to building a sustainable marriage relationship and ensuring women's rights[38, p.255].
The Hong Duc Code also has provisions on “ seven reasons for abandoning a wife”, which is similar to Chinese law but also identifies “ seven reasons ” with “ absolute fidelity ” cases . This is not the same as Chinese law because Chinese law regulates these two issues separately. The Marriage Chapter in the Tang Law Review stipulates five “ absolute fidelity ” cases including: The husband beats the wife’s grandparents and parents, kills the wife’s grandparents and parents; the husband’s grandparents and parents, brothers and sisters, and sisters beat and kill each other; the wife beats the husband’s grandparents and parents, injures the husband’s grandparents and parents, brothers and sisters, and sisters; the wife commits adultery with her great-grandfather, paternal uncle, paternal aunt ... These provisions do not appear in the Hong Duc Code, nor does it contain provisions for “ divorce ” (voluntary divorce due to incompatibility) and “ reporting to the local authorities for divorce” as in the Tang Law Petition . According to the provisions of the Hong Duc Code, divorce can be due to the wife’s fault, the husband’s fault, or the marriage violating the prohibitions on marriage, forcing the husband to divorce. However, according to the law of the early Le Dynasty, the reason why a husband can divorce his wife is only in 7 cases as stipulated in Article 310, and no other cases are stipulated. As
So there is a big difference compared to the Tang Dynasty law. The cases of forced divorce have been significantly narrowed. This is the creativity of the lawmakers when applying Chinese law to the Hong Duc Code. This also contributes to protecting women in marriage. Besides the regulation on “ seven leaves ”, there is also the regulation on “ three non-leaves ” (There are three reasons why a wife cannot be divorced: one is that the wife has been in mourning for her husband’s family for three years; two is that when they got married, they were poor, but later became rich; three is that when they got married, they had relatives, but when they divorced, they had no relatives to return to). Although this regulation is not shown in the Hong Duc Code, the book Hong Duc Thien Chinh Thu clearly explains this. This is a regulation that demonstrates the humanity, respect for love and morality of the Vietnamese people, and also a regulation that demonstrates concern for the status of women, recognizes the contribution of women to the development of the family and protects women when they encounter unfavorable and difficult circumstances. At the same time, when both spouses are mourning their parents, meaning that the husband or wife is grieving or losing a loved one, the issue of divorce is not raised. This demonstrates a deep concern for the spiritual life of people, and is a regulation that demonstrates the humanity of the law in the early Le Dynasty. The personal relationship between husband and wife after divorce is completely terminated, both parties have the right to marry other people without being prohibited by law. Even if the husband intentionally prevents his wife from marrying someone else, he will be punished.
In addition to the provision that women have the right to divorce, the Hong Duc Code has absorbed and developed the good customs and practices of the nation and protected the rights of women in establishing marital relationships. Although according to the Confucian view and the law at that time, the marriage of children was decided and arranged by the parents of both sides. In many cases, women did not even know their husbands until the marriage was completed. The law had very strict regulations on marriage. Article 315 stipulated: If a daughter who has accepted the dowry and then refuses to marry is punished with 80 lashes. If the daughter is married to another person, if she has already been married, she will be punished as a traitor. If the second husband knows and violates the law, he will also be punished as a traitor. Parents-in-law are not allowed to exchange their daughters for marriage twice, take the money of the new son-in-law, or abandon the old son-in-law. The daughter must marry the person who asked first, and if that person does not accept, she can marry another person. However, the law also provides for cases where there is an engagement.
But if the son is found to be disabled, has committed a crime or has squandered the family property, the daughter can call the mandarin to return the gifts without having to marry. If the daughter is disabled or has committed a crime, the son does not have to marry her, and has the right to break off the engagement, but the daughter's family does not have to return the gifts (Article 322). The break off in this case is not considered a breach of promise and it demonstrates the progressive thinking of the legislator to allow the daughter to have the right to break off the engagement when the son does not have the minimum conditions to ensure the woman's happiness and ensure a stable and good family life. That clearly demonstrates the concern for and protection of the daughter's rights. What is special is that the daughter is not discriminated against when breaking off the engagement. This is a progressive point of the Le Dynasty law compared to the Tang Dynasty law which only stipulates punishment for the daughter's family when breaking off the engagement[32, pp.411-412].
Another special thing is that since the early Le Dynasty, there were regulations on the age of marriage. Accordingly, boys from 18 years old and girls from 16 years old were allowed to get married[32, p.412]. This was a very progressive regulation that did not appear in the laws of all other countries at the same time, as author Vu Van Mau commented: " Le Dynasty lawmakers knew how to adapt Confucian rituals to suit the social situation and the interests of the nation, both avoiding early marriage and not necessarily being constrained by the fixed framework of feudal Chinese etiquette "[23, p.170].
Although women do not really have the right to freedom of marriage, the law also indirectly stipulates that marriage must be based on the consent of the two families. In cases where servants of nobles and marquises rely on their power or influence to bully a commoner's daughter, the marriage is not based on the voluntary consent of the girl and her family, and they are both punished with demotion or exile. The master is also punished depending on the severity of the case if he lets his servants rely on their power to force a commoner's daughter to marry without the consent of the girl and her family (Articles 336, 338).
Thus , in marriage and family relations, although women suffer many disadvantages, the law also has some regulations showing concern and protecting women's rights such as limiting cases of forced divorce compared to Chinese law, punishing those who take advantage of their power to force marriage, regulating the age of marriage, regulations allowing women the right to divorce, indirectly regulating the husband's responsibility towards the family... Although not many
But these are also progressive regulations, demonstrating concern for protecting the legitimate rights of women.
In a society where the dominant ideology is Confucianism with its core foundation being the distinction of status, class, and contempt for women, the progressive and creative views of the lawmakers of the early Le Dynasty in protecting women's rights in all areas of law, respecting the status of women in the family, inheriting and promoting the good traditional values of the nation become more humane and unique. That is what has created the everlasting vitality of this Code from the 15th century.
2.1.2.Protecting the rights of the elderly, children and people with disabilities in the Hong Duc Code
2.1.2.1. Protecting the rights of the elderly, children and people with disabilities in the field of criminal law
For the elderly, children and people with disabilities, the law also has attention and protection by allowing these subjects to apply a special retroactive principle. This principle is specifically stipulated in Article 17: " When committing a crime while not yet old or disabled, and only when old and disabled is discovered, the crime will be punished according to the law on old people and disabled. When being in a place of exile and old and disabled, the same thing happens. When a crime is committed while still young and only when it is discovered when grown up, the crime will be punished according to the law when they were young ". Thus, the retroactive principle is still applied, meaning that children, the elderly and disabled are still legally responsible for their actions, but they are punished in the most beneficial way. That demonstrates the humanity and leniency of the law and is consistent with the tradition of respecting the elderly and loving children of the Vietnamese people.
The principle of applying the law on the elderly, the disabled, and the law on children is also shown in the provisions of Article 16 with 3 levels: From 70 years old and up, 15 years old and under, and disabled people can redeem their crimes with money (except for the ten evil crimes). From 80 years old and up, children under 10 years old and people with disabilities are not punished (except in cases of treason, murder, which is punishable by death, which must be reported to the king for consideration; stealing and injuring people, which is punishable by money). If the offender is over 90 years old and 7 years old and under, even if he deserves death, he will not be executed. If someone instigates, the instigator will be punished; if there is evidence of theft, the person who harbors the evidence must be punished.