The right to inviolability of private life in Vietnamese law

- Le Van Sua , What is a violation of an individual's right to private image?, Vietnam Lawyer Magazine, No. 6/2015.

- Tran Van Bien, Law and the issue of protecting personal information on the Internet environment, State and Law Magazine, No. 9/2009.

- Hoang Thu, Legal loopholes in protecting privacy, Vietnam Law Newspaper...

The above works have provided a large amount of knowledge and information on the topic, which is a valuable source of reference for the author in writing the thesis " The right to inviolability of private life in Vietnamese law" . However, most of the above works were carried out before the 2013 Constitution and the 2015 Civil Code were promulgated, so they have not updated new regulations on this issue in our country. In addition, there is no work emphasizing the "inviolability" nature, nor proposing comprehensive solutions to address the shortcomings in protecting the right to inviolability of private life in our country. Therefore, this thesis is still meaningful in both theory and practice.

3. Research purpose and tasks

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3.1. Research purpose

Systematically study theoretical, legal and practical issues, thereby proposing solutions to improve the legal system to protect the inviolable right to private life in our country in accordance with international law.

3.2. Research tasks

To achieve the above research objectives, the thesis needs to solve the following tasks:

- Research and clarify theoretical issues on the inviolability of private life in Vietnam;

- Research to reveal the legal framework, evaluate the current status of law enforcement on privacy protection in Vietnam, point out the shortcomings, limitations and causes.

- Proposing directions and solutions to strengthen the law on protecting the inviolability of private life in Vietnam.

4. Research object and scope

4.1. Research subjects

The thesis studies theoretical issues and legal framework on the inviolability of private life in Vietnam.

4.2. Scope of research

In terms of content, the thesis only focuses on studying the concept, characteristics, content, criteria, and factors affecting the consolidation of laws on the protection of private life secrets, laws on the protection of private life information in some countries in the world and lessons for Vietnam. Scientific viewpoints at home and abroad on the protection of private life and laws on the protection of private life information; current legal regulations on the protection of private life information in our country after the promulgation of the 2013 Constitution.

From a basic perspective, the legal mechanism is a combination of elements including: institutions, institutions and procedures, order to protect the right to private life, personal secrets, family secrets. However, within the scope of the study, students only focus on studying the legal mechanisms to protect the inviolable right to private life, personal secrets, family secrets through the common legal system in Vietnam.

5. Methodology and research methods

The thesis is based on the dialectical materialism and historical materialism methodology of Marxism-Leninism, Ho Chi Minh thought and the viewpoints of our Party and State on human rights and civil rights.

The thesis combines the following research methods to solve the research tasks:

- Commentary, interpretation, historical methods... are used to study an overview of some theoretical issues on the inviolability of private life;

- Comparative legal methods, exchange methods, expert consultation, etc. are used to study the law and the reality of the inviolability of private life in the Vietnamese legal system;

- Synthesis and analysis methods are used to review and study the issue of solutions to improve the legal system in Vietnam to ensure the inviolability of private life.

6. Theoretical and practical significance of the thesis

The thesis is one of the comprehensive and in-depth research works on the inviolability of private life in our country up to now. The analysis, interpretation and proposals in the thesis contribute to strengthening the theoretical basis to strengthen the law on protecting this right in practice in our country.

The thesis can also be used as a reference for teaching and research at training institutions in our country.

7. Structure of the thesis

In addition to the Introduction, Conclusion and References, the thesis consists of 3 chapters as follows:

Chapter 1 : Theoretical issues on the inviolability of private life.

Chapter 2 : Current legal status on the right to inviolability of private life in Vietnam today.

Chapter 3 : Viewpoints and solutions to strengthen the legal framework on the inviolability of private life in Vietnam.

Chapter 1

LEGAL THEORETICAL BASIS ON

INVISIBLE RIGHT TO PRIVACY

1.1. Concept, characteristics, meaning, content and limits of the right to inviolability of private life

1.1.1. Concept of the inviolability of private life

To understand the right to inviolability of private life, we must first mention personal rights, because the right to inviolability of private life is part of the connotation of personal rights.

Personal rights are an expressive aspect of civil rights, so in principle, personal rights only include what belongs to a certain individual (not to any other person). The elements of personal rights, which aim to distinguish one person from another, for example, by name, gender, age, composition, ethnicity... This is also information to exclude attributes that are not of a natural person (for example, of an organization, a clone...).

Currently, the concept of personal rights has not been clearly defined in national and international law (in terms of linguistics, the root of the word "personal" in Vietnamese is a Sino-Vietnamese compound word). However, Article 25 of the 2015 Civil Code of Vietnam has identified a number of attributes of personal rights, specifically as follows:

1. Personal rights stipulated in the Civil Code are attached to each individual and cannot be transferred to another person unless otherwise provided by other relevant laws.

2. Establishment and implementation of civil relations related to personal rights of minors and persons lacking civil capacity

Civilians and people with difficulty in cognition and behavior control must have the consent of their legal representative according to the provisions of this Code, other relevant laws or according to the decision of the Court.

The establishment and implementation of civil relations related to the personal rights of a person declared missing or dead must have the consent of that person's spouse or adult children; in the absence of these persons, the consent of the parents of the person declared missing or dead must be obtained, except in cases where this Code or other relevant laws provide otherwise.

In the 1999 Law Dictionary of Hanoi Law University, some signs of personal rights were added, in which personal rights were considered as “… personal values of individuals and organizations recognized and protected by law”. This publication also stated: “Only personal values recognized by law are considered personal rights; Personal rights are always attached to the subject and cannot be transferred to others except in cases where the law provides”.

The above elements of personal rights are also the characteristics of the inviolable right to private life.

The concept of the right to private life is a synthesis of the connotations of the terms “rights”, “life” and “privacy”. In theory, rights are what a person can fairly and justly enjoy, do, and therefore be required and demanded by other subjects to respect his or her conduct. In terms of law, rights are always understood as the rules of conduct that the law allows a subject to perform, based on his or her own needs, including what the law specifically stipulates and what is not prohibited by law. “Life” is defined as “the life

"life, activities taking place in the body of an organism" or "human activities in a certain field in general" or "lifestyle, living conditions, activities of humans, society" [31, p.560]. "Privacy" is defined as "private to each person, each individual" [31, p.1333].

Also in terms of law, the concept of the right to inviolability of private life mainly implies the right to private life (or the right to privacy). The adjective phrase “inviolable” is only relative, used to emphasize the importance of this right (according to the Vietnamese Dictionary, “inviolable” means that no one has the right to infringe upon or touch [29, p.66]). Therefore, the analysis in this thesis mainly talks about its core, which is the right to private life.

The right to privacy has been mentioned in many international and regional human rights documents. The most typical of these is the International Covenant on Civil and Political Rights (ICCPR). This Convention devotes a separate article to the right to privacy, which states:

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks [6, Article 17].

In each country in the world, depending on specific conditions, the level of mention of this right is more or less different, however, the right to private life is considered a basic human right, enshrined in the constitution, and is also recognized in other legal documents, especially civil law. For example, in Vietnam, the 2013 Vietnamese Constitution stipulates:

A person has the right to inviolability of private life, personal secrets and family secrets; has the right to protect his honor and reputation.

Information about private life, personal secrets, and family secrets is guaranteed by law [20, Article 21].

To specify this provision of the 2013 Constitution, the 2015 Civil Code clearly states:

Private life, personal secrets, and family secrets are inviolable and protected by law. The collection, storage, use, and disclosure of information related to private life and personal secrets must be agreed upon by that person. The collection, storage, and public use of information related to family secrets must be agreed upon by family members, unless otherwise provided by law; letters, telephones, telegrams, electronic databases, and other forms of private information exchange of individuals are guaranteed to be safe and confidential. The opening, control, and seizure of letters, telephones, telegrams, electronic databases, and other forms of private information exchange of others may only be carried out in accordance with regulations; The parties to the contract must not disclose information about each other's private life, personal secrets, or family secrets that they have learned during the process of establishing and performing the contract, unless otherwise agreed [23, Article 38].

In summary, from the above analysis, it can be defined: The right to inviolability of private life is a basic civil right of the individual, recognized and protected by international law and the laws of countries. In all social relations, individuals have the right to protect their private life and no subject, including states, has the right to arbitrarily violate it. Individuals are entitled to apply measures in accordance with the provisions of law and to request competent state agencies to resolve when their right to private life is violated.

1.1.2. Characteristics of the right to inviolability of private life

The right to inviolability of private life belongs to the group of rights

Civil rights are regulated and protected by national and international law. They also have all the characteristics of civil rights, specifically personal rights, and also have the following unique characteristics:

First: The right to inviolability of private life always belongs to individuals (natural persons), not to groups or organizations (legal entities). Although in reality there may be common secrets about private life belonging to a certain group of people or organization, those secrets do not belong to this right, but can be called secrets of the group or of the legal entity. This distinction is to ensure that no group or legal entity has the right to decide or copy a person's personal information against that person's wishes.

Second: The subject of the protection of the inviolability of private life is every individual. Individuals are equal before the law in exercising this right, and are equally protected by the law. As one of the many contents of the capacity to protect the law, the right to privacy, personal secrets, family secrets and personal rights must be equal. However, there are also differences in the protection of personal information in some cases, such as celebrities or politicians. For these people, the secret of private life is always the focus of public interest, so when their private information is made public to a certain extent, it seems to be a straightforward answer to the public and scrutiny seems to decrease. In addition, as "public figures", in many cases, information about their personal life affects the common interests of the community, so it needs to be made public. All these factors make the use of images, information about activities, and some other forms of information about the private lives of the above-mentioned subjects not considered an invasion of their privacy, unless such use is abusive or for illegal purposes.