Viet Nam Civil Code Amendments

peter hansen peterhansen.aus at gmail.com

Mon Jan 5 21:19:39 PST 2015

Hi All,

I have just been reading of the submission of an exposure draft to the

legislature for comment of an amended civil code. Apparently, it contains

less provisions thn the previous code.

I wonder whether anyone (Mark Seidel?) knows if it has has heen been

subject to independent analysis as yet? Is it to be regarded as a step

forward?

Thanks,

Peter Hansen

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Mark Sidel mark.sidel at wisc.edu

Tue Jan 6 00:24:47 PST 2015

I regret that I haven't focused on this and can't answer Peter's question. Perhaps others on the list have views?

Best wishes.... Mark

Mark Sidel

University of Wisconsin-Madison

Andrew Wells-Dang andrewwd at gmail.com

Tue Jan 6 00:50:32 PST 2015

Dear Peter, Mark and colleagues,

There was a workshop on the Civil Code organized in Hanoi in mid-December

by the Ministry of Justice and USAID's "Governance for Inclusive Growth"

program. Although I wasn't able to attend this, I did receive some of the

conference materials (in Vietnamese) and could share these off-list to

anyone who is interested.

Andrew Wells-Dang

Oxfam

KIEN TRAN k.tran.1 at research.gla.ac.uk

Tue Jan 6 13:38:52 PST 2015

Dear Peter

I am not so sure what do you mean by independent analysis, third party or non-governmental organization's analysis maybe. What I can share is that the drafting committee has received a wide range of submissions and reflections on several drafts of the new code. The draft which was released yesterday (05/01) for the public consultation is actually the fourth one.

I have been observing the preparation of the new code since at least 2009. Since that time, under the auspices of the Ministry of Justice, the Civil-Economic Law Department has invited and held numerous, maybe countless seminars (I remember they held seminar every month back in 2009 and 2010) with domestic and foreign scholars, law professors and judges most notably from Japan, Germany, and France to come to discuss on specific provisions and institutions of the civil code.

Apart from these, I can also recall that quite a few conferences and seminar like the one mentioned by Mr Andrew have been held or organized to receive comments and reflections from various socioeconomic stakeholders. One of the results of it I think is the so called "A Special Report on the Inclusion of Gender Equality into the New Civil Code". The first time I saw such a report included in the Civil Code Package submitted to the National Congress. Link to the report is herehttp://duthaoonline.quochoi.vn/DuThao/Lists/DT_DUTHAO_LUAT/View_Detail.aspx?ItemID=588&TabIndex=2&TaiLieuID=1748

In the package you can also find other interesting and important reports such as Summary Report of the Submissions and Comments from other Ministries or Impact Assessment Report etc

Vietnam Chamber of Commerce and Industry submitted their comments to the Ministry of Justice a few months ago http://vibonline.com.vn/Forum/TopicDetail.aspx?TopicID=5359

If you want to see more independent comments and analysis, I would suggest you keep an eye on the websites of Duthaoonline and Vibonline which I have provided links above.

On the question whether is it a step forward? well, I can say the drafting committee is trying to make a silent revolution with the new code. And its impact is yet to be evaluated (maybe in 10 or 20 years time we can look back and evaluate its impact). They reform it toward the Pandekten or Pandects system which is prevalent in Germany and Japan. They want to codify the language of real right and personal right in the sense of rights in res and rights in persona. They try to break the strict socialist legality by giving judges power to decide case even when there is no written state law. Judges are barred from rejecting lawsuits on the grounds that there is no state law regulating this dispute (which has happened before). Judges can now use "the spirit of justice" to decide cases before them if there is no relevant provision. They also drop out of the structure of the new code the part on intellectual property rights. That means the new civil code will now have six rather than seven parts just to name a few important changes.

Sincerely

Kien

Tran Kien

PhD Student in Laws

University of Glasgow

Room 428 Sir Alexander Stone Building

16 University Gardens

G12 8QN

Tel: +44 (0) 141 330 7463