in daily relations are almost not regulated. For example, the National Dynasty Penal Code promulgated under the Le Dynasty during the Hong Duc period (1470 - 1497) and the Hoang Viet Law promulgated under the Nguyen Dynasty (1892) [8, p.50].
The issue that is put first in the marital relationship is the issue of affection, affection between husband and wife, parents and children according to Confucianism, emphasizing family traditions and common interests above all. Therefore, the property of the husband and wife is created as a unified block, the husband has the right to sign any contract related to the family's property and all are naturally considered valid. The representative relationship is almost not raised during this period. Ownership is concentrated in the hands of the husband and there is no equality between husband and wife regarding property.
Before 1945, Vietnam was a semi-feudal colonial country. Marital relations during this period were regulated by legal documents in a number of civil codes applied to each region of Vietnam, namely the 1931 Northern Civil Code, the 1936 Central Civil Code and the 1883 Simplified Civil Code.
The law of this period was influenced by the French Civil Code. It molded ancient legal thinking with the ideas of Western jurisprudence, building concepts of property in rules expressed in terms borrowed from French law such as common property, separate property, property management, etc. The concept of law making at that time also recognized that husband and wife had the right to build property relations by agreement, as long as the agreements of the husband and wife related to property did not have the effect of depriving the husband of the right to head the family and did not go against good customs. However, the agreement was hardly of interest to couples in our country at that time, all decision-making rights related to property still belonged to the husband.
It should be noted that the relations relating to property relations between spouses were governed by legal rules constructed in the French style in the legal systems of Tonkin and Annam. In Cochinchina, until the end of the colonial regime, there was still no system of rules governing property relations between spouses; in case of disputes, the courts resolved the parties' requests based on the Gia Long Code, customs and precedents.
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The Northern Civil Law and the Central Civil Law both provide for the management and disposition of the family's common property:
According to the provisions of Article 100, Article 111 of the Northern Civil Code and Article 98, Article 109 of the Central Civil Code, for common family needs, the husband or wife has the right to represent the family to participate in that transaction.
According to Article 109 of the Civil Code of Tonkin and Article 107 of the Civil Code of Central Vietnam, when a husband and wife want to dispose of common property, there must be an agreement between both parties.
However, according to the provisions of paragraph 2, Article 109 of the Northern Civil Code and paragraph 2, Article 107 of the Central Civil Code, the husband has the right to dispose of common property without consulting his wife, as long as the disposal of that property serves the interests of the family.
Thus, it can be seen that the wife only has the right to represent the husband in transactions to serve the needs of the family, and for the common assets of the couple, the husband is the head of the family and has the right to decide without consulting the wife. This is unfair to the wife, existing throughout the society and law of the feudal colonial state.
1.2.2. Period from 1945 to present
Our country's period from 1945 - 1954
After the success of the August Revolution in 1945, due to the country's internal and external enemies, the State had not yet promulgated a complete legal system.
Therefore, the regulations on marriage and family in the period 1945 - 1950 were still governed by the Civil Code of Tonkin, the Civil Code of Central Vietnam and the Simplified Civil Code of Cochinchina.
Since 1950, due to the need to eliminate the influence of feudal law in social life, especially in the marriage and family regime. On May 22, 1950, the President of the Democratic Republic of Vietnam issued Decree No. 97/SL amending a number of rules and regulations in civil law. Decree 97/SL stipulates that "Husband and wife have equal status in the family" [6, Article 5].
The 1946 Constitution of the Democratic Republic of Vietnam also stipulates: " Women are equal to men in all aspects " [24, Article 9].
This was the first time the patriarchal power of men in the family was abolished, men and women were equal in all aspects of social life.
Although there are no regulations on the property of spouses, the right to decide between spouses, and the representation between husband and wife, Decree 97/SL has made an important contribution to limiting and eliminating the outdated regulations of the colonial and feudal marriage and family regime, opening up a new, more democratic and progressive legal foundation.
The country's period from 1954 to 1975
After the victory of the resistance war against France, according to the Geneva Agreement, our country was divided into two regions. The North was liberated, beginning the transition period to socialism. In the South, the US imperialists replaced the French colonialists with the aim of permanently dividing the country.
During the 11th session of the 1st National Assembly, the Law on Marriage and Family (December 29, 1959) was passed and took effect from January 13, 1960. Although the 1959 Law on Marriage and Family did not provide for the property regime or the disposition of spouses, Article 15 stipulated that “Husband and wife
“Both spouses have equal rights to own, enjoy and use property acquired before and after marriage” [25, Article 15] . This provision provides for a community property regime that only recognizes the common property of the couple and does not accept the separate property of the husband or wife.
Although the representative relationship between husband and wife is not established, the legal position of women in the family can be seen through the provisions on the rights of the wife in family relations.
The country's period from 1975 to present.
After the complete liberation of the South and the reunification of the country, the National Assembly decided to name the country the Socialist Republic of Vietnam. The National Assembly also unified the implementation of laws nationwide, including the 1959 Law on Marriage and Family.
In the process of socio-economic development, especially the multi-sector market economy, the 1959 Law on Marriage and Family has revealed many limitations and problems.
And in the 7th session of the National Assembly, the new Law on Marriage and Family was passed (1986). According to the 1986 Law on Marriage and Family, “ Husband and wife have equal rights and obligations regarding common property. The purchase, sale, exchange, lending, borrowing and other transactions related to property of great value must be agreed upon by the husband and wife” [26, Article 15] . Thus, the equal rights between husband and wife are clearly defined regarding common property. Although the representation relationship has not yet been established, the right to decide on one’s own property has been specifically defined.
The 2000 Law on Marriage and Family was the first time the institution of representation between husband and wife was specifically regulated in the law. The 2000 Law on Marriage and Family stipulates: “1. Husband and wife may authorize each other to establish, perform and
Termination of transactions which by law require the consent of both spouses; authorization must be made in writing.
2. Husband and wife represent each other when one party loses civil capacity and the other party is qualified to be a guardian, or when one party has limited civil capacity and the other party is appointed by the Court to be that person's legal representative" [28, Article 24].
It can be seen that the 2000 Law on Marriage and Family has innovated both in legislative techniques and specific content, affirming the position and role of the wife equal to the husband in all transactions and not being restricted in human rights, civil rights, especially the right to equality between husband and wife in family relations as well as in society, creating a legal corridor contributing to establishing and ensuring the safety of property relations arising within family members as well as transactions between family members and other entities outside of society. However, the 2000 Law on Marriage and Family has not yet regulated the representation of husband and wife in business relations, although at that time there were many transactions between husband and wife related to common property as well as the use of common property and separate property for business.
In 2014, the Law on Marriage and Family for the first time specified the issue of representation between husband and wife in business relations into legal provisions. This is a provision consistent with the general development of society as well as the process of economic integration in the world, creating a clear legal corridor, avoiding the case of establishing a representative relationship that is not in accordance with the provisions of law.
CONCLUSION OF CHAPTER 1
Chapter 1 of the Thesis has mentioned theoretical issues on representation, representation between husband and wife in business relations. In this chapter, the author clarifies the concepts of representation, representation between husband and wife in business relations, points out the characteristics, factors forming and developing the provisions of the law on representation between husband and wife in business relations. Clarifies the history of Vietnamese law on representation between husband and wife in business relations. This is the basis for assessing the current state of law as well as the practical implementation of the provisions of the law on marriage and family on representation between husband and wife in business relations in relation to other branches of law.
CHAPTER 2
CURRENT STATUS OF LAW ON REPRESENTATION BETWEEN HUSBANDS AND WIFES IN BUSINESS RELATIONSHIPS IN VIETNAM
2.1. The current status of legal representation between spouses in business relationships
2.1.1. Legal representation between spouses in business relations when one party loses civil capacity.
Conditions for establishing legal representation between husband and wife when one party loses civil capacity.
The 2005 Civil Code stipulates: “Civil act capacity of an individual is the ability of an individual to establish and exercise civil rights and obligations through his or her actions” [29, Article 17].
Civil conduct capacity together with civil legal capacity of an individual form the full attributes of the individual's subject capacity. Upon reaching a certain age as prescribed by law, an individual has the right to perform acts that are not prohibited by law.
Civil conduct capacity of an individual has the following characteristics:
Firstly, the civil capacity of an individual is determined by the State. The determination of this civil capacity is based on the development of age and the will and concept of the State to ensure that when an individual has full civil capacity at different stages, he or she will act on his or her own and be responsible for his or her own actions.
For example: In Vietnam, the current Law on Marriage and Family stipulates that the age of marriage for men is 20 years or older and for women is 18 years or older.
Second, the level of civil capacity is determined by age. Therefore, at each different age, individuals have different powers and when reaching a certain age (depending on the country), they have full civil capacity, meaning that individuals can fully perform all acts that are not prohibited by law.
This regulation is not intended to distinguish the rights of each individual but is consistent with the natural laws of physical and psychological development of each person.
For example, children under 6 years old cannot enter into a contract for the sale of goods like an 18 year old.
Third, an individual's civil capacity only exists when the individual reaches a certain age and can be lost or limited while the individual is still alive [18, p.66].
While the civil legal capacity of each individual exists from birth, the civil act capacity exists from the time the individual reaches a certain age. However, during their life, they may lose or have their civil act capacity limited. If there is a basis to affirm that an individual is not self-aware and in control of his or her behavior, the relevant persons have the right to request the competent authority to declare that the person has limited or lost civil act capacity.
When a person loses civil capacity, the powers to perform acts permitted by law are interrupted and performed through another person.
To determine that a person has lost civil capacity, the following conditions must be satisfied:
- According to the provisions of Article 22 of the 2005 Civil Code, a person who has lost civil act capacity is understood to be suffering from a mental illness or other illness that prevents him/her from acting.