Strengthening the Work of Explaining and Guiding the Unified Application of Laws

in a state of mental breakdown is a person who has lost the capacity to act (Article 7); the right to request the Court to withdraw the declaration of loss of capacity to act when the cause of loss of capacity to act no longer exists (Article 10); the right to request the Court to appoint a property manager in case a person leaves his/her permanent or temporary residence without appointing a property manager (Article 25); the right to request the Court to appoint another property manager in case the absent person previously appointed a property manager but it is not clear whether the absent person is alive or dead (Article 26); the right to request the annulment of an illegal marriage (Article 744); the right to request the deprivation or restriction of parental rights in case the parents abuse their rights or make serious mistakes in caring for and raising their children (Article 834); the right to request the Court to remove the parents' right to manage their children's property in cases where the parents' management of that property causes serious damage to the property they are managing (Article 835); the right to request the Court to dismiss the guardian if the guardian commits an improper act or makes a serious mistake or if there is a basis to show that the guardian is unsuitable for performing guardianship responsibilities (Article 845); the right to request the Court to appoint an administrator of the inheritance in cases where it is still unclear whether there is an heir or not (Article 952)...

The laws of China and the Russian Federation also provide for the right of the Procuratorate to initiate civil, marriage and family lawsuits in certain cases. For example, according to the provisions of the federal law “The Code on Marriage and Family of the Russian Federation”, the Procuratorate has the right to initiate lawsuits: to request the annulment of an illegal marriage (Article 28);

request to deprive or restrict parental rights (Articles 70, 73); request to declare that the support agreement violates the rights and interests of the person receiving support (Article 102); request to cancel the adoption (Article 142) [40].

For the above reasons, we believe that it is necessary to restore the regulations on the right to initiate and sue civil cases of the People's Procuracy; in the direction that: in addition to stipulating the general principle that the People's Procuracy has the responsibility to initiate and sue civil, marriage and family cases in cases to protect the interests of the State, public interests, and the interests of individuals who are unable to exercise their civil rights or cannot defend themselves when they are violated without anyone filing a lawsuit; it is necessary to supplement regulations on specific cases in which the People's Procuracy has the right to initiate and sue civil, marriage and family cases, for example, cases of: illegal marriage, determining the father and mother of a minor child born out of wedlock; seriously violating the rights of minors or of people with physical or mental disabilities...

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In addition to the Civil Procedure Code, it is necessary to continue to perfect other legal documents related to the settlement of Marriage and Family cases such as: the fee for property valuation, appraisal fees and specific regulations on the composition of the Property Valuation Council for each specific type of work. For example: The Property Valuation Council for real estate includes: Representatives of the financial agency, representatives of the real estate agency and representatives of the construction agency. The Property Valuation Council for motorbikes, cars and ships includes: Representatives of the financial agency, representatives of the tax agency and representatives of a local car or ship garage.

The participation of agencies in valuation requires inter-sectoral documents and regulations on working regulations to create unity and coordination in resolving cases within the time limit prescribed by law.

In the practice of handling Marriage and Family cases in recent times in Hanoi, one of the reasons why cases are prolonged and procedural violations are also due to the confusion of Judges when establishing the Valuation Council, especially for movable assets.

Issues that need to be amended in the 2000 Law on Marriage and Family, which was passed on June 9, 2000 and took effect on January 1, 2001: After more than 10 years of implementation and implementation, the Law on Marriage and Family has played a positive role in stabilizing society, bringing significant benefits to legal life through its framework provisions. However, in the process of practical application of the provisions of the Law on Marriage and Family, there are still shortcomings and limitations that have not met the development of modern society.

In today's society, especially in big cities like Hanoi, the phenomenon of " living together " is becoming a trend among young people; cases where people are married but still live with others as husband and wife; cases where people are eligible to get married but do not register their marriage... These cases, when disputes arise, cause difficulties in the court's settlement process, especially in cases of property disputes.

Clause 1, Article 11 of the Law on Marriage and Family stipulates that marriage must be registered at a competent State agency. This provision is guided in Clause 3, Resolution No. 35/2000/QH10 dated June 9, 2000 of the 10th National Assembly; Clauses 1, 2, 3 of Joint Circular No. 01/2001/TTLT-TANDTC-VKSNDTC-BTP dated January 3, 2001; Article 18 of Decree No. 158/ND-CP dated December 27, 2005 of the Government regulating the registration and management of civil status. The above documents all provide guidance on handling cases of cohabitation without registering the marriage but having a divorce petition submitted to the Court.

In reality, there are cases of living together for a very short time, not falling under the guidance of Circular No. 01 and having children together.

together and then not living together anymore, each person in a different place. When one party wants to legally marry another person, they have difficulty confirming their marital status. They submit a petition to the Court to not recognize the couple, but in reality, they are not living together as husband and wife, so when resolving the case, the Court has difficulty applying the Law. There needs to be more regulations on these cases.

Resolving the consequences of not recognizing a spouse: When not recognizing a spouse, the Court often has to resolve the issue of common children and common property. This is the consequence of resolving the non-recognition of a spouse. Meanwhile, the Law on Marriage and Family does not stipulate the legal consequences of not recognizing a spouse. When resolving the issue, the Court often applies Article 17 of the Law on Marriage and Family, which stipulates the legal consequences of annulling an illegal marriage, but does not resolve the consequences of not recognizing a spouse. Therefore, it is necessary to supplement the Law on Marriage and Family on this issue.

The issue of dividing common property of spouses during marriage: Clause 1, Article 29 of the Law on Marriage and Family stipulates that husband and wife may request the Court to resolve the division of common property during marriage if they cannot reach an agreement. However, the Law on Marriage and Family and related guiding documents have not yet specifically stipulated the principle of dividing common property during marriage when the division of common property is under the jurisdiction of the Court. Therefore, in practice, the Court will encounter difficulties in applying the legal basis to resolve disputes that arise. Previously, Article 18 of the 1986 Law on Marriage and Family stipulated: “ While the marriage still exists, if one party requests and has a legitimate reason, the common property of the spouses may be divided according to the provisions of Article 42 (principle of dividing property upon divorce) of this Law ” [26] .

Based on the inheritance of the provisions of the 1986 Law on Marriage and Family, in my opinion, it is necessary to stipulate a solution as follows: When dividing property

In general, the Court shall base on the reason and purpose of dividing common property to decide the scope of common property to be divided. The division of common property shall be based on the principles of dividing property upon divorce stipulated in Article 95 of the Law on Marriage and Family; if the property is housing and land use rights, the provisions of Articles 97, 98, 99 of the Law on Marriage and Family shall apply.

The 2000 Law on Marriage and Family and Decree No. 70/ND-CP dated October 3, 2001 of the Government stipulate that cases of division of common property during marriage that aim to avoid fulfilling property obligations shall be declared invalid by the Court ( Article 11 of Decree No. 70/ND-CP dated October 3, 2001 of the Government ). However, the Law on Marriage and Family does not stipulate who can request the Court to annul the agreement on division of common property during marriage in cases where this agreement violates the conditions prescribed in Article 29 of the Law on Marriage and Family or seriously affects family life, the care, upbringing, care and education of minor children, adult children with physical and mental disabilities, loss of civil act capacity, inability to work, and no property to support themselves. On the other hand, the Law on Marriage and Family has not yet stipulated the legal consequences of the Court declaring invalid an agreement on the division of common property. In our opinion, it should be stipulated that: In case the agreement on the division of common property during the marriage is declared invalid by the Court, the common property regime of the spouses shall be restored to the status before the agreement on the division of common property.

3.3.1. Strengthening the work of explaining and guiding the unified application of laws

According to the provisions of Clause 1, Article 19 of the Law on Organization of People's Courts on the duties and powers of the Supreme People's Court, the Supreme People's Court has the duty to: "Guide the Courts to uniformly apply the law and summarize trial experience" [31] .

However, the work of guiding the unified application of the law by the Supreme People's Court has not been fully implemented, there are still many shortcomings, the work of explaining the law under the authority of the National Assembly Standing Committee has not been focused on, which is the reason why the ADPL in resolving marriage and family cases of the Courts at all levels is still confusing, the results of resolving cases are not high.

Recognizing the shortcomings in the work of explaining and guiding the unified application of laws, our Party has issued Directives and Resolutions to direct the improvement of the quality and effectiveness of this work. In addition to its main functions and tasks of promulgating laws and supervising the enhancement of legal interpretation, the National Assembly has only the Standing Committee of the National Assembly given the authority and task of “Interpreting the Constitution, Laws and Ordinances” by the Constitution.

Regarding the ADPL guidance work of the Supreme People's Court, the Resolution of the 3rd Central Conference of the Central Executive Committee of the Communist Party of Vietnam, 8th tenure, clearly stated: " The Supreme People's Court focuses on summarizing the trial work, guiding the ADPL Courts to unify ..." [9]. In recent years, the ADPL guidance of the Supreme People's Court has been carried out in many different forms: Through annual trial summary reports; through guiding documents for each issue. However, the most important and most effective form of ADPL guidance nationwide is the Resolutions of the Supreme People's Court's Council of Judges, which is a form of legal normative document that is mandatory for ADPL subjects.

However, due to the complexity and diversity of ADPL in resolving Marriage and Family cases in general and in Hanoi in particular, each case has its own characteristics, such as a divorce dispute with a property dispute, which is different from a case of paternity recognition for a child, so ADPL is relatively difficult. Meanwhile, the trial guidance documents of the Supreme People's Court only outline the most common details and characteristics in each type of problem.

In practice of adjudication and ADPL, the People's Courts at all levels often flexibly apply the instructions of the Supreme People's Court to each specific case, but in each locality, the understanding and application of cases are not uniform, there are cases with many different views on ADPL between the People's Courts in the province, even among the members of the Trial Council there are different views, so the effectiveness of legal guidance has not been as expected. In addition, the issue that needs attention is that the ADPL guidance of the Supreme People's Court is still slow, not meeting practical needs, this affects the uniformity of ADPL in the settlement of cases in general and Marriage and Family cases in particular, this is also the reason for the situation of cases being revised and annulled by superiors in local People's Courts as well as in Hanoi city.

Through ADPL activities in resolving Marriage and Family cases in Hanoi, it can be seen that explaining and guiding the unified application of the law is very important and necessary. This is also a difficult and complicated task, requiring high intellectual capacity. To effectively implement, competent authorities need to conduct surveys, research and gradually innovate to contribute to improving the effectiveness of ADPL in resolving Marriage and Family cases to ensure the uniformity of ADPL.

3.3.2. Perfecting the organizational structure, improving the capacity and qualifications of Judges and staff in resolving Marriage and Family cases of the People's Court in Hanoi city

To improve the effectiveness of ADPL in resolving Marriage and Family cases of the People's Court in Hanoi, the human factor also plays a decisive role, which are the Judges, the direct subjects of ADPL in the process of resolving Marriage and Family cases. If ADPL subjects want to perform their roles well and complete their assigned tasks, they must work in a scientifically and reasonably arranged organizational structure.

District and county-level People's Courts must have a plan to propose adding more judges directly handling marriage and family cases to meet the requirements of the new task. In addition, district-level People's Courts must also prepare personnel to replace judges who reach retirement age, usually judges holding management positions such as Chief Justice and Deputy Chief Justice, and must do a good job of rotating staff between People's Courts to meet the requirements of the new situation.

In addition to improving the organizational structure of the People's Courts in Hanoi, to improve efficiency and ensure uniformity in ADPL in resolving marriage and family cases, it is necessary to regularly improve the qualifications, capacity and foster political qualities of judges working in resolving marriage and family cases. Attention should be paid to the following issues:

+ There must be a plan to regularly and in-depth train and develop judges in professional skills for marriage and family cases. Summarize practical work and study the Party's Resolutions and policies on a regular basis. It is necessary to create conditions for judges during their term to have appropriate time to improve their professional skills and update new information on legal science so that they do not fall behind in theoretical knowledge.

+ Enhance training for Judges handling Marriage and Family cases with new legal knowledge, knowledge of State management, economic management, foreign languages, and information technology. Every year, create conditions for Judges and secretaries to attend postgraduate studies to improve their qualifications.

+ The judges directly handling marriage and family cases are not only purely legal scientific but must demonstrate the Party's nature and State power. Therefore, it is necessary to constantly improve the capacity and professional qualifications of judges directly handling marriage and family cases, and at the same time, to perfect the organizational structure of the People's Courts in Hanoi city, so that it is reasonable and compact, which is also a method of administrative reform, perfecting the apparatus.

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