MINISTRY OF EDUCATION AND TRAINING MINISTRY OF JUSTICE HANOI LAW UNIVERSITY PHAM HUNG CUONG PERSONAL RIGHTS OF VULNERABLE GROUPS IN SOCIETY UNDER THE EXISTING CIVIL CODE OF... INTRO
Trang 1MINISTRY OF EDUCATION AND
TRAINING
MINISTRY OF JUSTICE
HANOI LAW UNIVERSITY
PHAM HUNG CUONG
PERSONAL RIGHTS OF VULNERABLE GROUPS IN SOCIETY UNDER THE EXISTING CIVIL CODE OF
Trang 2This work is submitted to Hanoi Law University
Research instructor:1 PhD Le Dinh Nghi
2 Assoc Prof PhD Ha Thi Mai Hien
The thesis is deffended at The Assessment Commitee at the University level, taking place in Hanoi Law University
at , March , 2020
Searchable at the National Library and Library of Hanoi Law University
Trang 3INTRODUCTION
In recent years, Vietnam has adopted policies on issuing specific legal documents to enforce supporting measures for Human Rights in general and rights of vulnerable groups in particular Additionally, domestic and international people’s and non-government organizations have also launched manifold supportive programs and projects for the disadvantaged, such as providing financial aids, vocational training, jobs, access to public services However, there are numerous subjective and objective factors hindering vulnerable groups from the exposure to the government and organizations’ supports, including the incompleteness and vagueness in regulations, the lack of expertise and vocational skills among local officials, the constraints of State budget… Especially, protecting Personal Rights of the disadvantaged is only mentioned in Civil Code generally and some of other sector specific regulations, which is not a truly appropriate way of codification Hence,
the thesis concentrates on researching: "Personal Rights of vulnerable
groups in society under the existing Civil law of Vietnam" in order to
improve the effectiveness of relevant regulations and legal implementation in the future
The scope of the research is mainly focused on studying and clarifying the theoretical basis for Personal Rights of vulnerable groups
as well as Vietnamese regulations on this issue, concurrent with researching, comparing with the law of other countries in the world Thus, the research points out the advantages and disadvantages of the law on Personal Rights of vulnerable groups in Vietnam today The
Trang 4Rights of the disadvantaged in reality to highlight the current status of legislation on this issue, thereby providing assessments and proposals
to improve the law in the future The objective of the research is to clarify the theoretical issues, the current status of the law as well as the implementation of the law on Personal Rights of vulnerable groups in society nowadays Accordingly, the thesis is conducted primarily in logically dialectical and historical materialism of Marxism - Leninism and Ho Chi Minh’s philosophy on State and Law, concurrent with other appropriate specialized methods such as analysis, synthesis, comparison and sociological method to clarify research issues
New findings of the thesis:
most general features about vulnerable groups, thereby building up the most appropriate concept on this issue
exercise of this right in reality
to identify of vulnerable groups representing the breadth of the thesis's research
disadvantaged in particular, both domestically and internationally, and partly contributing a comprehensive picture of the legislation and legal practices
Vietnam’s to improve the law
Trang 5Sixthly, providing legislators and researchers with clear sight of the loopholes in relevant regulations through the assessments in the thesis will
In addition to the introduction, conclusion, list of references and appendices, the content of the thesis consists of 4 chapters:
in society
Personal Rights of vulnerable groups in society
Personal Rights for vulnerable groups in society
Personal Rights of vulnerable groups in society
Chapter 1
GENERAL THEORY OF PERSONAL RIGHTS
OF VULNERABLE GROUPS IN SOCIETY 1.1 Overview on vulnerable groups in society
1.1.1 Definition and characteristic of vulnerable groups in society
“Vulnerable groups are people who are disadvantaged, likely to suffer from violation and neglect of Human Rights; and they require more attention and protection than other groups and communities in society”
Based on the analysis of the aforementioned definition, the features of the group can be presented as follows:
Trang 6- Caused by underdeveloped physicality or natural gender
- Prone to neglect or disregard, violation of Human Rights, in need of more special protection than other communities in society
1.1.2 Classification of vulnerable groups in society
1.1.2.1 Women
Women are the largest group of vulnerable groups in society (since women account for more than half of the world’s population), thus the issue of women attracts great attention of the international community
1.1.2.2 Children
Children are considered one of the most vulnerable social groups and highly protected by the State and society Children are a vulnerable social group whohave special needs and rights to special care and protection
1.1.2.3 People with HIV / AIDS
Currently, the awareness of mankind about the mechanism of HIV transmission has been raised Protecting and promoting the Human Rights of HIV/AIDS-positive people is an integral element in the prevention of HIV/AIDS transmission
1.1.2.4 People with disabilities
People with disabilities are considered one of the largest minority groups in the world and also one of the most vulnerable, because their disability puts them at a disadvantage in every aspects of social life
1.1.2.5 Migrant workers
Migrant workers are considered legally registered if they are allowed to enter, stay and have a paid job in the country, where they
Trang 7work, under the national law and international agreements of which that country is a signatory They are considered undocumented when they
do not meet these conditions
1.1.2.6 Minorities
“Minorities are who, due to their physical or cultural characteristics, are separated from others in society where they live because of discrimination and inequality, and thus, they consider themselves to be the target of the collective discrimination" It can be seen that this definition includes both objective and subjective criteria: membership of a minority group is determined objectively by the society, based on physical or behavioral characteristics of an individual;
it is also subjectively applied by its members who can use their State as
a basis for the identity or solidarity of the group
1.2 Concept of Personal Rights of vulnerable groups in society
“If understood in an objective sense, the Personal Rights of vulnerable groups are a combination of legal regulations issued by the State, which clearly specify that individuals, including vulnerable groups, all have common rights to identify attached to themselves, besides specific provisions associated with the special nature of vulnerable group, and that is the basis for each individual in vulnerable group to exercise their own rights But if understood in the subjective sense, rights to identify of vulnerable groups are the subjective Civil Rights attached to each individual in the vulnerable groups defined by the State for each individual in vulnerable groups and cannot be
Trang 81.3 Theoretical and practical basis for recognizing and ensuring the Personal Rights of vulnerable groups in society
1.3.1 Theoretical basis for recognizing and ensuring the rights identity of vulnerable groups in society
Firstly, in terms of group rights - basic perceptions
Although the main subject of Human Rights is generally individuals, when it comes to Human Rights, it is basically about individual rights
Second, the importance of recognizing and ensuring the rights of vulnerable groups in society
In each country and region, due to social and historical reasons, there are always groups of people with different levels of development, social status and capacity Eventually, we are all parts of humanity, all equal in Human Rights and freedom, including the Personal Rights
1.3.2 Practical basis for recognizing and ensuring the Personal Rights of vulnerable groups in society
The issue of protecting Human Rights and the Personal Rights of vulnerable groups must start from awareness to action The process from awareness to reality involves many different stages, namely, acknowledging, legislation, enforcement and judgment
1.4 A brief history of Vietnam's civil law on Personal Rights
of vulnerable groups in society
1.4.1 Thoughts and development of Personal Rights of vulnerable groups in Vietnam before 1995
Trang 9During the feudal period, from the Ly-Tran dynasty with Dai Viet complete annals (1042) to the Tran Dynasty which famous for the Dien Hong Conference (1284), humanity had been noticeably portrayed
1.4.2 Personal Rights of vulnerable groups in Vietnam under Civil Code 1995
Only from 1986 to 2005, Vietnam has issued over 13,000 legal documents of all kinds, including more than 40 codes and laws, over
120 ordinances, nearly 850 Government documents and over 3,000 documents of ministries and other institutions in different areas
1.4.3 Personal Rights of vulnerable groups in Vietnam under Civil Code 2005
Civil Code 2005 was enacted on June 14, 2005, come into force
on January 1, 2006, with the task of protecting the legal rights and interests of individuals, organizations, the interests of the State and the public interests; ensuring equality and legal safety in civil relations, creating conditions to meet the material and spiritual needs of the people, stimulating socio-economic development
1.4.4 Personal Rights of vulnerable groups in Vietnam under Civil Code 2015
After 02 amendments, legislations on Personal Rights in Civil Code 2015 has been improved with more specific regulations than the Civil Code 2005 to address practical shortcomings as well as to specify Constitution 2013 on recognizing, respecting, protecting and ensuring Human Rights, Civil Rights of citizens in general, and the rights of vulnerable groups in society in particular
Trang 101.5 International law on the rights in identity of vulnerable groups in society
1.5.1 Personal Rights of women
The CEDAW Convention is one of the nine most important international conventions on Human Rights of the United Nations However, CEDAW does not establish new Human Rights for women, the Convention sets out measures to eliminate discrimination against women in having the Human Rights that they have been granted in previous international treaties
1.5.2 Children's Personal Rights
CRC is an international treaty of The United Nations on Human Rights, and also the most primary and comprehensive international document on children's rights CRC establishment is based on four foundational principles
1.5.3 Personal Rights of people with HIV / AIDS
Personal Rights in particular, Human Rights of people with HIV / AIDS in general have not been stipulated in international treaties, but only mentioned in some typical documents such as: Declaration on Key Actions for Further Implementation of the Programme of Action of the International Conference on Population and Development (1999);
1.5.4 Personal Rights of people with disabilities
The International Convention on the Rights of Persons with Disabilities (ICRPD) was passed by the General Assembly of The United Nations in March 2007 This was the first Human Rights treaty
of the United Nations in the 21st century, which marked a turning point
in the fight for the rights of people with disabilities in the world
Trang 111.5.5 Personal Rights of migrant workers
Currently, there are hundreds of directly or indirectly passed international instruments that mention the rights and protection of migrant workers' rights There are some relevant conventions of ILO including: Convention No 97 on Migration for Employment (Revised), 1949; Convention No 143 on Migrant Workers (Supplementary Provisions), 1975;
1.5.6 Personal Rights of minorities
In 1948, the International Covenant on Civil and Political Rights (ICCPR) supplemented with specific provisions on the rights of minorities, together with the Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities adopted in 1992 - are documents playing a fundamental role in protecting the rights of minorities in the world
Trang 12Chapter 2
EXISTING REGULATIONS IN CIVIL LAW OF VIETNAM ON PERSONAL RIGHTS OF VULNERABLE GROUPS IN
SOCIETY 2.1 Overview of Personal Rights of vulnerable groups in society under existing Civil law
From a legal perspective, although the Personal Rights of vulnerable groups are an integral part of international law on Human Rights, it is seen in existing civil regulations of Vietnam that the Personal Rights of vulnerable groups are the rights of a group of individuals in society with special features, governed by the regulations
First, the right to a surname and a name of vulnerable groups
The right to a surname, a name is an important right to identity for each individual in general as well as a person of vulnerable groups which arises when the individual is born
Second, the right to change the surname; right to change the name
of vulnerable groups
By the recognition of the right to have a surname, a name of a vulnerable group, their right to change the family name and name is guaranteed
Trang 13Third, the right to identify and redefine ethnicity of vulnerable groups
Ethnic identification is the practice of identifying for the first time for an individual (commonly applied to newborns – a part of vulnerable groups - in the birth registration procedure); redefining ethnicity is the ethnicity re-identification for individuals who have been previously recorded with another nationality, which means a lot to migrant workers
Fourth, rights of vulnerable groups to images
Individual rights to images are Personal Rights attached to each individual recognized and protected by law, whereby individuals are allowed to use images and permit others to use their images
Fifth, the right to gender redefining and reassignment of vulnerable groups
The principle of gender reassignment is: Ensuring that each person with disabilities could live with his or her true gender identity; gender reassignment must be conducted in principles of willingness, objectivity, honesty, science and self-responsibility before the law for redefining gender, confidentiality of the information related to the people who have been redefined
Sixth, the right to nationality of vulnerable groups
Nationality is an identity factor attached to each individual that shows the connection of an individual to the country of which the individual holds the nationality, as well as vulnerable groups’
2.2.2 Personal Rights of vulnerable groups in society relating to