Some Solutions to Improve the Effectiveness of Implementation and Application of Laws in Cases of Prohibited Marriage

Same-sex people should not be subject to administrative interference in their right to live according to their gender identity and sexual orientation; cohabitation between people of the same sex as husband and wife should be respected as well as their agreements in establishing and resolving issues arising from cohabitation. In addition, the law should also have appropriate provisions to help them properly resolve the legal consequences of this cohabitation (property, children, etc.) in order to contribute to ensuring the legitimate rights and interests of the parties and the stability of society.

* In practice

Firstly , in determining the marital status of the parties, the People's Committee at the grassroots level still has many errors, inaccurate confirmation leading to marriages violating cases of prohibited marriage. According to Decree No. 158/2005/ND-CP dated December 27, 2005 on registration and management of civil status, when registering for marriage, the parties must confirm their marital status. Article 18 of Decree No. 158/2005/ND-CP stipulates: "In case a person resides in one commune, ward or town, but registers for marriage in another commune, ward or town, there must be confirmation from the People's Committee at the commune level where the person resides about the marital status of that person" [7]. However, in reality, there are many records in which one of the parties does not confirm the marital status, or has confirmed the marital status but it is six months past the deadline. In that case, the request for re-confirmation of marital status should have been made, but the local civil status officer did not do so and still allowed the person to register for marriage [22]. At the same time, through the reception and examination of marriage registration dossiers with foreign elements at the Department of Justice, it was discovered that more than 90% of the contents of the confirmation of marital status by the People's Committee at the commune level were incomplete, unclear, inconsistent with the actual marital status of the person concerned, inconsistent with each other, contrary to regulations and not based on the instructions of Circular No. 01, but each place had its own "initiative". For example: "Nguyen Thi Thuy Dung, born on January 15, 1982, permanent residence: Hamlet 1, TK-TM-DT commune, registered for marriage for the second time is true"; "Ms. Nguyen Thi Thuy Dung, born on January 15, 1982 ...

Lan, born in 1979, residing in DH hamlet, TTĐ commune, C city - Dong Thap, has not registered her second marriage locally. Now registering her second marriage is correct"; "Ms. Pham Kim Nga, born in 1984, residing in Binh Hoa hamlet, BT commune, LV, Dong Thap, got married before 2007, divorced after 2007 and is single. Now getting married for the second time"; "Citizen Tran Thi Kim Phuong, born in 1981, has permanent residence in An Hoa hamlet, MAHB commune, LV district, Dong Thap province, registering her second marriage is correct"; "Ms. Ha Thi Nhung, born on September 29, 1972, permanent residence in Hoa Trung hamlet, HT commune, CT-DT district. Divorced and now registering for a second marriage is correct"... Through this, we see that the content of the above confirmations does not show that the parties have been married and divorced according to the Divorce Judgment No. ..., dated ..., month ... year ... of the People's Court ..., currently have not registered for marriage with anyone. Because the content of the confirmation of the parties' marital status is "not guaranteed" and the current marital status of the parties is unknown, it causes difficulties for the receiving agency, especially the Department of Justice and "of course" the parties have to reconfirm (the People's Committee of the commune confirmed up to ... 3 times but still not correct), causing inconvenience for people to have to go back and forth many times. For example, the case of Ms. Nguyen Kim N, born on July 15, 1980, residing at 989C, My Tan Hamlet, PD Commune, TM District, Dong Thap Province, married Mr. Chen Kuan Hung, Taiwanese, divorced according to the Consensual Divorce No. 004461 issued by the Household Department of Miaoli District - Issued by Taiwan on October 11, 2004 and consularly legalized by the Department of Foreign Affairs of Ho Chi Minh City No. 125/LS-HPH on January 12, 2005. On February 19, 2009, Ms. N went to the People's Committee of PD commune to confirm her marital status to submit a marriage registration application with Mr. Lai Shih Chi, also a Taiwanese. Her marriage registration form contained the following confirmation: "Nguyen Kim N, born in 1980, permanent resident of My Tan hamlet, PD commune, TM district, Dong Thap province, registered her marriage for the first time, which is true". After the civil status officer of the Department of Justice examined the marriage records and discovered that the content of the confirmation of the marital status of the People's Committee of PD commune was not consistent with Ms. N's current marital status (because Ms. N was married and divorced), she was asked to contact the People's Committee of PD commune to confirm it a second time. On February 23, 2009, the People's Committee of PD commune "corrected and supplemented" the contents of the

The content of the second confirmation: "Nguyen Kim N, born in 1980, permanent resident of My Tan hamlet, PD commune, TM district, Dong Thap province, registered her marriage for the second time is true". The content of the confirmation of her marital status by the PD commune People's Committee for the second time was still incorrect and did not clearly show her marital status, so the Department of Justice "did not dare" to accept her application because it was true that Ms. N registered her marriage for the second time, but the content of the confirmation did not show that Ms. N had divorced according to the divorce agreement issued by the competent authority in Taiwan, and was currently married to anyone. Therefore, Ms. N had to "continue" to return to the PD commune People's Committee to confirm her marital status for the third time, even though Ms. N was completely innocent in this inaccurate confirmation [42]. Even because the Commune People's Committee confirmed incorrectly, it led to many cases where people who were married still legally had another husband or wife, as in the examples mentioned in the beginning.

Maybe you are interested!

Second , in addition to the government's mistakes, many people also take advantage of loopholes to serve their own purposes. That is the situation where a person living in many different places applies for marriage registration at the nearest place of move. Ms. Nguyen Thi Duc Hanh, Head of the Justice Department of Cau Giay District, Hanoi City, a judicial officer, said: it is impossible to know their previous marital status, and the law only requires them to declare and commit, so if people declare falsely, it is very easy for a case of "mistakenly" issuing a marriage registration to a married person. When the incident occurs, it is not easy to consider their responsibility. For example, Mr. Nguyen Huu B. was granted a second marriage registration by the People's Committee of Dich Vong Ward, Cau Giay District, Hanoi with Ms. Nguyen Huong L., because Mr. B. presented a certificate of marital status of divorce from his ex-wife, Ms. T., issued by the People's Committee of Tich Son Ward, Vinh Yen City, Vinh Phuc Province. However, later, Ms. T. filed a request to the People's Court of Cau Giay District to cancel the marriage registration of Mr. B. with Ms. L. The reason given by Ms. T. was: The divorce judgment of her and her husband had not yet taken legal effect because she was appealing and the Court of Appeal had accepted it, therefore, in

During this time, legally, the marriage relationship between Ms. B and Mr. L still existed. In January 2010, the People's Court of Vinh Phuc province annulled the decision to grant divorce to Mr. B and Ms. T by the Court of First Instance. Then, in March 2010, the People's Committee of Vinh Yen city issued a decision to annul the Certificate of Marital Status issued to Mr. B. Ms. T. filed a lawsuit; the People's Court of Cau Giay district opened a trial to annul the illegal marriage between Mr. B and Ms. L. [28].

Third, due to the limited level of awareness and understanding of the law among many ethnic minorities, voluntary and self-conscious compliance with the provisions of the law on marriage and family still faces many difficulties. The number of judicial officers in these localities is very small, so early detection and intervention in cases of marriages that violate the law's prohibitions is not easy. Moreover, one of the obstacles in preventing this situation is that the people here have long considered marriages such as consanguineous marriages, between relatives within three generations, as normal, they do not understand how close marriages lead to negative effects. In addition, considering and handling these subjects when they violate is not easy for those with the authority to handle violations, which, in the words of the commune officials, is "not even flattering, let alone demanding punishment". Because of the limited awareness of the people, it is even more difficult to consider administrative sanctions against ethnic minorities. Even if the lowest level of punishment is a warning, they will not comply because the deterrent effect is not high. If a fine with a higher deterrent effect is applied, most of those people are poor, where can they get 200-500 thousand VND to pay the fine? Therefore, applying the regulations on sanctions against them in many cases is also not feasible. Another problem is the phenomenon of the head of the administrative management of ethnic minority areas, such as in Ban Lien commune, Bac Ha district, Lao Cai province, within five years from 2005 to 2010, Ban Lien commune changed three chairmen. This is also a difficulty for the commune government in handling cases of "illegal" marriages.

On the other hand, the phenomenon of incestuous marriage occurring in the families of a number of commune officials also greatly affects the responsibility for resolving similar cases [13]. Handling violations of early marriage cases also faces many obstacles, not only in ethnic minority areas but also in the plains, because there are only two forms of punishment: warning or fine. There are even many early married couples who organize weddings and are willing to go to the commune to pay the fine. They consider paying the fine as complying with the law and after paying the fine, they are naturally recognized by the commune as husband and wife according to the law. Sometimes the early married couple is a relative of the commune official, so the commune still allows the wedding and waits until they are old enough to complete the marriage registration procedure without raising the issue of punishment. There are many cases where officials on duty discover violations by citizens, but out of respect for their acquaintances, villagers, or commune members, they still help them solve tasks that do not meet the requirements according to regulations, or they know about the violations but deliberately ignore them. Therefore, the administrative punishment in these cases is like "kidnapping and abandoning the plate".

Due to the lack of adequate knowledge of the law, along with the influence of outdated customs that still exist, the dissemination and education of the law is not thorough enough, and the application of regulations on cases of prohibited marriage is still violated in large numbers, affecting the health, race, economy, and happiness of the people themselves.

3.3. SOME SOLUTIONS TO IMPROVE THE EFFICIENCY OF IMPLEMENTATION AND APPLICATION OF THE LAW IN CASES WHERE MARRIAGE IS PROHIBITED

3.3.1. Solutions to perfect legal regulations

Firstly, the regulation on prohibiting marriage for people who have lost civil capacity in Clause 2, Article 10 of the 2000 Law on Marriage and Family: It is necessary to amend the term "people who have lost civil capacity" in the direction of the provisions of the 1986 Law on Marriage and Family, which is: "Prohibiting people who are suffering from mental illness or other diseases that make them unable to perceive their own behavior". Because above

In reality, the regulation prohibiting marriage for people who have lost civil capacity is not feasible. According to the provisions of Article 22 of the 2005 Civil Code, a person is only considered to have lost civil capacity when there is a decision of the Court declaring that person has lost civil capacity at the request of people with related rights and interests. Meanwhile, in reality, there is no case where the parents of a mentally ill person request the Court to declare their child has lost civil capacity so that this child cannot marry. Therefore, in the case of a person who has a mental illness or other illness that makes him unable to perceive or control his behavior, but because there is no decision of the Court, this person is still determined to have civil capacity and is not prohibited from marrying. This is unreasonable because marriage in these cases does not ensure the element of voluntariness. Furthermore, according to the provisions of the 2000 Law on Marriage and Family, even if the civil status officer recognizes unusual characteristics and manifestations of the person coming to register for marriage, he or she cannot refuse to register the marriage for them because there is no decision of the Court recognizing that they have lost civil capacity and thus can cause many negative consequences for society. Therefore, amending the phrase "persons who have lost civil capacity" is necessary, ensuring ease of understanding for the people, will be more convenient in the work of propaganda, dissemination, and education of the law, and will facilitate the application of the law in practice. It can be seen that in reality, the time to register for marriage is very short, while mental manifestations are not easy to detect, so is it too heavy to assign the "responsibility" of identifying mentally ill people to judicial officials and local authorities? And conversely, there are civil status officers who will take advantage of this regulation to cause difficulties for the people, so how should we solve it? Therefore, strict regulations are needed to be implemented. In addition, the law also needs to have specific regulations on how to handle cases of marriage with a person who has lost civil capacity. Or what if one party knows that the other party has lost civil capacity but still agrees to marry? Specific regulations

For those with such diseases, marriage is considered prohibited in the sense that they are not aware of and cannot control their behavior.

Second , the 2000 Law on Marriage and Family prohibits marriage between relatives within three generations. That means that marriage between a third-generation relative and a fourth-generation relative, if they are not from the same grandparents, is considered legal and does not violate the marriage conditions. However, in reality, except for some ethnic minorities who still maintain backward customs and practices, marriage between such people almost never occurs because it is not suitable for the emotional life of Vietnamese people. In the Vietnamese mentality, marriage between people with close blood relations as mentioned above is often not accepted by relatives because such a blood relationship is very close. On the other hand, allowing marriage between close blood relatives will disrupt the family order, destroy the stability of the family and more importantly, with a deeper meaning, it will affect and destroy the health of the relationship between generations in Vietnamese families. This will have a more profound impact if it happens to families with good moral traditions of loving, caring for and helping each other through generations. With such traditional moral relationships, marriage between relatives as above is even more difficult to accept. In some places, there is even a concept that if they are relatives, they cannot marry each other: the Mong people in Ky Son district, Nghe An province in particular, in some northern provinces (Lao Cai, Yen Bai, Cao Bang ...) in general, have the view that people of the same surname cannot marry each other. This custom is still maintained in many villages in rural areas of Vietnam. In terms of meaning, it is difficult to immediately affirm that this custom is bad and not good. Because it is necessary to base on the purpose, community culture, and family activities. Many people in the same family, although not within the scope of three generations, still have close, emotional relationships with each other.

And the fact that people in close family relationships marry each other goes against the "principles" of the entire family. Many couples who intentionally come together have been shunned by the community, the village, removed from the family, and even "boycotted" from the family. Moreover, from a scientific perspective, the prohibition of marriage between people who are closely related by blood is to ensure the health and well-being of the race. Thus, if the scope of the marriage ban is wider, it will create better conditions for gene combination, creating new bodies with superior biological characteristics, ensuring the physical and intellectual development of the new generation. Therefore, in the author's opinion, the law should expand the scope of the marriage ban to: Prohibiting marriage between relatives within five generations.

Third , for the case of marriage prohibition in Clause 4, Article 10. As analyzed above, the law prohibits these people from getting married because although they are not related by blood, they have had a relationship of fostering and living together, and moreover, this regulation is also consistent with the morality of Vietnamese people. So, similar to those cases, the issue of marriage between the husband's stepchild and the wife's stepchild, between adopted children or between biological children and adopted children in a family is not regulated or provided for in the laws on marriage and family. There is also no blood relationship or kinship between these subjects, but they can live together in a family and in terms of family relations, they are siblings. Thus, in terms of morality, it is difficult to accept their marriage. Therefore, in the author's own opinion, if Clause 4, Article 10 stipulates the prohibition of marriage between adoptive parents and adopted children; between a person who used to be a foster parent and an adopted child, a father-in-law and a daughter-in-law, a mother-in-law and a son-in-law, a stepfather and his wife's stepchild, a stepmother and her husband's stepchild, it is also necessary to supplement this clause with provisions for marriages between the husband's stepchild and his wife's stepchild, between adopted children or between biological children and adopted children in a family to make it easier to apply the law in practice. Or if the law

Comment