Research Projects on the Application of Customs in the Civil Field and in the Resolution of Civil Cases in Vietnam

On the same topic of history, the Textbook of History of the State and Law of Vietnam of Hanoi Law University [84], in the contents of law in history, all mention an important source of Vietnamese law, which is custom. This work systematically surveys over time, by dynasty or by historical period when evaluating the meaning and role of custom in regulating social relations.

Consistent with the view that custom is not only considered a source of law in the civil field but also in other public law fields, the textbook Constitutional Law of Capitalist Countries of the Faculty of Law, Hanoi National University, edited by Nguyen Dang Dung [12], argues that custom plays an important role in the system of sources of capitalist constitutional law, especially in countries with unwritten constitutions. For example, in the British Constitution, many rules governing the relationship between the legislature and the executive are customary rules. The Cabinet is formed entirely by custom, many actions of the Head of State are based on custom, etc.

* Works published in magazines and newspapers:

Researching on customary law, not from a cultural perspective but from a legal theory perspective, Associate Professor, Dr. Thai Vinh Thang has many related works. In the article titled: "Sources of law in the Anglo-American legal system" [58], the author mentions the types of sources of the Anglo-American legal system, affirming that customary law is an old source, many customs have been transformed into written law but there are still many customs that are widely applied, independently, and play an important role, in both commercial, civil and administrative fields, and the state. In the work "On the Islamic legal system" [79], the author clearly states that the sources of Islamic law include 4 types: the Quran; Sunna - traditional customs and practices; Ijam - the agreement and consensus of competent persons and Quiyas - legal analogy. Of the 4 sources of law mentioned above, the Quran and Sunna are the main sources of law while Ijam and Quiyas are the secondary sources. In part III, when writing about the two basic systems of bourgeois law in the specialized book

Maybe you are interested!

Reference "Contemporary bourgeois state and law - Theory and practice" [59],

Associate Professor, Dr. Thai Vinh Thang affirmed: Customary law is a long-standing source of law and although many legal customs have been transformed into written law and case law, up to now it is still an independent source of law with an important role in the legal life of the Anglo-American legal system, they are applied in the fields of commerce, civil affairs, national ceremonies, foreign affairs, organization, and operation of state agencies, etc. In the continental European legal system, although there are many different views, in history, before the 13th century, the period when law was formed from custom; but today, many countries still recognize customary law as a source of law, even though there are many disagreements in theoretical views, they do not affect the practical role of custom.

With the research topic of major legal systems in the world, author Tran Anh Tuan, PhD Lawyer, Vice President of the International Bar Association (Union Internationale des Avocats - UIA) - Full-time lecturer of the Faculty of Economics and Business Administration, Ho Chi Minh City Open University, has an article "Current legal systems in the world" [93]. In this article, the author mentions the legal systems: Roman-German civil law system; Anglo-American common law system; Islamic law system. According to this study, customary law plays an important role in contributing to the perfection of the law of each system. For example, in the Roman-German civil law system, during the Renaissance, both Roman Law and German tribal law did not meet the requirements of commercial activities, so merchants adjusted their business activities according to their own customs, establishing their own courts (called pepoudrous courts) to judge their business transactions with each other according to practical and fair standards. Later, these customs and rules were accepted by the State and church courts, called merchant law; considered international law applied in business across national borders. In the Anglo-American legal system, the activities of the court can create customs, called general customs, to distinguish them from local customs. As for the Islamic legal system, a prominent feature is that the regulations are of a moral nature, with few regulations on commerce or

relations between states, however, also have some legal principles of the civil law system and the common law system. For example, in the 1953 civil law of Libya, there is reference to the application of custom, natural law, equity as in the civil law system and the common law.

Dr. Nguyen Thi Hoi has an article "Types of sources of current Vietnamese law" [23]. The author introduces the concept of sources of law, which are all bases used by competent entities as the basis for building, promulgating, and interpreting laws, including: Party policies; legal ideologies and theories; legal normative documents; international treaties; customs and practices; case law; rules of professional associations. At the same time, the author analyzes in depth the types of sources of customary law. Author Nguyen Thi Hoi quotes the Black/s Law Dictionary, Seventh Edition. Bryan A, Garner. Editor in Chief. ST. Paul, Minn., 1999, p. 390, identifying a number of types of customs such as: common customs are also known as

called custom; common custom has two meanings, one is a prevailing custom

throughout the country and constitutes one of the sources of the country's law, two is a custom that is recognized and followed in commerce; legal custom is a custom that is implemented as a mandatory provision of law, is a narrowing of custom; local custom is a custom that is only prevalent in certain localities. The author affirms that custom is the type of source that has been officially recognized in law as well as in practice in Vietnam today.

Author Nguyen The Quyen has an article "Improving regulations on law making" published in the Journal of Legislative Studies [56]. The author believes that the current law making activities in Vietnam are not simply the promulgation of legal documents, but also include the approval of normative documents of subjects without the authority to promulgate documents and the recognition of social customs in order to turn them into laws. Therefore, it is necessary to study and legalize the recognition of social customs, only then can the principle of applying customs stated in the Civil Code and many other legal documents be guaranteed in practice.

Author Dr. Nguyen Quoc Suu has an article Customary law and law in the conditions of building a rule-of-law state in Vietnam published in the Legislative Studies journal [57]. This is a work that mentions the role of customary law in social life where it exists, the positive values and limitations of customary law. At the same time, through the article, the author also mentions the experience of some countries in promoting the role of customary law, thereby drawing lessons for Vietnam in the conditions of building a socialist rule-of-law state.

Author Le Dinh Hoan has a work "The necessity of applying Ede customary law in state management in Dak Lak province" published in the Ethnic Journal electronic version [22]. In this article, the author analyzed the cultural traditions of the Ede people, the natural characteristics of the place where they live... to come to the conclusion that it would be necessary and practical for Dak Lak province to apply Ede customary law in state management in the area where the Ede people live.

Dr. Nguyen Thi Viet Huong - Institute of State and Law, Vietnam Academy of Social Sciences has a work: "The value of customary law from a legal perspective" [106]. In this work, the author analyzed and compared the similarities and differences between customary law and the law. At the same time, the author affirmed that currently, in some localities, the Customary Court actually still exists alongside the Government Court. In some other places, although the Customary Court no longer exists, it is replaced by conciliation groups operating on the basis of customary law. From there, the author comes to the conclusion that the viewpoint of building a Law on Ethnic Groups appears to be reasonable. In this Law, a section is devoted to regulating the most general principles of customary law, principles of using customary law, including the recognition of appropriate provisions and the manner and extent of using inappropriate provisions.

Author Phan Hong Thuy has a work: "Initial study of the relationship between customary law and positive law" published on the website of the Committee.

Ethnic http://www.cema.gov.vn [94]. In the work, the author proposes:

The functional sector needs to collect valuable customary laws that exist in regions across the country, thereby taking measures to preserve and promote good customary laws, limit and eventually eliminate outdated customary laws that are no longer suitable for civilized life and are contrary to current positive laws.

community leaders (village elders, village chiefs, clan chiefs, etc.). There is a mechanism for them to be responsible to all members of the community and the local government [94]. We believe that the proposal that the author has made is truly practical, not only from the perspective of cultural preservation, but also from the perspective of further perfecting the Vietnamese legal system.

Another work published in 2005 was by Associate Professor, Dr. Hoang Thi Kim Que with the topic "Customary law of the Central Highlands - legal cultural values, community management and the relationship with law" [49]. The author analyzes in depth the relationship between customary law and law from the customary law practices of ethnic groups in the Central Highlands, thereby highlighting the legal cultural values and the role in community management of this very special type of norm.

In addition, on the website http://www.thoibaotre.vn, on September 4, 2007, author Tu Thi Loan has a work "Customary law in Vietnam and Adat in Indonesia - a reference view" [92]. In this article, the author introduces

general picture and comparison of Vietnamese customary law with Adat in

Indonesia. The author commented: "Today, some people think that customs and customary law will eventually be replaced by law and that it is an inevitable progression". But the reality is not entirely like that, from a certain perspective, customary law and Adat have a basis for existence and even a part of their regulations, if preserved, will mean preserving the power of morality in modern social life.

* The works are theses, dissertations, research topics, scientific seminars:

Workshop: “Customary law and law enforcement” was organized by the Journal of Legislative Studies in collaboration with the Faculty of Law, Dalat University at Dalat University [34]. The workshop was attended by researchers in law, sociology, ethnology, National Assembly and People's Council deputies, representatives of a number of judicial agencies, state management agencies, a number of village elders and law students. The workshop discussed the results of research and surveys by Dalat Law University in a number of ethnic minority communities inside and outside Lam Dong province on the relationship between customary law and the law, the role of customary law in local management. Based on 8 presentations and many discussion opinions, the workshop made many important conclusions, emphasizing

Strong: In trials, execution of judgments, compensation... it is necessary to study more deeply about customary law in order to have appropriate methods, selective operation, support for effective law enforcement - that is also contributing to bringing law into life.

Author Bui Hong Quy has a research project for his graduation thesis in the advanced political theory program at the Ho Chi Minh National Academy of Politics - Da Nang Branch with the topic: "Customary law and its influence in the law enforcement process of ethnic minorities in Dak Lak (Through a survey)

Customary law of the M'Nong people in Dak Lak) [55]. This is a research work

serious, elaborate of a person with practical experience and deep understanding of the customary law of the M'Nong people in Dak Lak. In this work, in the theoretical part, the author focuses on clarifying the relationship between customary law and state law and its influence on the law enforcement process of ethnic minorities; presenting the views of our Party and State on the issue of customary law in local state management. The special feature of the work is in the part assessing the current status of applying customary law to regulate social relations in the M'Nong community in Dak Lak. However, besides the survey of the current status of competent state agencies applying customary law, the author focuses on further research on the application of customary law by local people and evaluates the solutions of the State and the M'Nong ethnic community in Dak Lak when the same social relationship has both customary law and legal regulation and there is conflict.

Author Le Dinh Hoan has a master's thesis in Law "Ede customary law and its application in State management in Dak Lak province" [21]. This is a research work on the Ede customary law, assessing its values in regulating social relations of the Ede ethnic minority and proposing solutions to apply Ede customary law in State management for the Ede community in Dak Lak province.

From the above studies, it can be seen that applying customs in regulating social relations to supplement written law is the practice of many countries in the world in the past and present. Countries recognize customs as the source of

The law has contributed to reducing pressure on legislative activities and creating an effective mechanism so that the court does not fall into two cases of violating the operating principles: refusing to resolve or resolving without a legal basis.

1.1.3. Research works on the application of customs in the civil field and in the settlement of civil cases in Vietnam

Research on the application of customs in resolving civil cases in Vietnam during the feudal dynasties was very rare, as was the scarcity of research works on the state and law in general. In the period from 1945 to before 1975 with historical fluctuations, research works on this issue seemed to appear only in the South of Vietnam in very small numbers through a few typical jurists of that period. One of those works is the book Civil - law general - theory by author Vu Van Mau [38]. According to Vu Van Mau, in the old regimes in Vietnam, customs were a type of supplementary source, used to compensate for the inadequacies and incompleteness of the law.

After 1975, with the chaos of the post-war period and the characteristic of attaching importance to the role of legal documents, studies on the theoretical and legal basis and the current status of applying customs in resolving civil cases were almost non-existent. The birth of the 1992 Constitution and the Laws in the civil field allowing the application of customs also created a trend of interest in studying the application of customs. Research works on customs increased as mentioned above. However, there has not been any comprehensive research on the application of customs in the civil field of the People's Court.

However, in the process of surveying documents to determine and solve the purpose, tasks, and content of the research, we have systematized a general overview of the research documents that have been conducted related to the topic as follows:

* Book works:

A fairly new work that deals with the issue of applying custom in civil trials is the work of author Do Van Dai: “Vietnamese Contract Law - Judgment and commentary on judgments” [15]. In this work, the author mentions the case

The civil case on a dispute over a fishing spot was resolved by the court using customary practice (also known as the “19-hour palm tree” case). The author commented that the court’s application of customary practice was correct because it fully met the following conditions: there were no legal documents regulating this issue, the law

has not yet regulated the priority right to fish in offshore waters; the parties in

previous dispute

no other agreement;

citing the volumes

Court to resolve civil cases not contrary to law and social ethics.

Co-author of the above work, in the work “Inheritance Law of Vietnam: Judgments and Commentaries on Judgments” [13], author Dr. Do Van Dai mentioned that in reality, sometimes the court determines the date of inheritance opening through local customs. The author gave an illustrative example that when there was a dispute about the time of inheritance opening, the local court of Dong Anh district - Hanoi based on the death certificate established in 2004 to determine that the testator died in January 1995. But at the appeal level, the competent Court examined the tombstone when reburied, affirming that the tombstone when reburied recorded the date of death of the testator as January 2, 1994, the reburial was in November 1996, and according to local custom, the deceased could only be reburied after 27 months, so the death certificate recording the time of death as January 1995 was not appropriate, because if the death occurred at that time, the time of reburial would not have been 27 months.

In the work International Judicial Law of Vietnam, civil, labor, commercial relations with foreign elements by two authors Dr. Do Van Dai and Associate Professor Dr. Mai Hong Quy [14], the authors devoted a large part of the content to presenting the sources of international judicial law of Vietnam. The type of source that the authors often mention is international custom. This work analyzes the concept from the legal perspective of international custom, presents the conditions for determining international custom and gives examples of this type of source as well as the practice of applying them in Vietnam carried out by the People's Courts in localities such as Khanh Hoa, Ho Chi Minh City... and the Supreme People's Court.

* Works published in magazines and newspapers:

- Dr. Ngo Huy Cuong has a work: "Concretizing the viewpoint on practice according to Resolution No. 48-NQ/TW of the Politburo" [11]. This work has mentioned issues such as the Party's viewpoint on applying customary law, practical application