The influence of civil law system on vietnamese legal system

In the colonial time Vietnamese legal system developed in relation to western law by imposition of Prench law in Vietnam.. Through the long legal history, the iníluence o f French law to

H A N O IL A W UNIVERSITY LUND UNIVERSITY

M ASTER OF LAW THESIS

NGUYỄN VĂN NAM

SYSTEM AND A PICTURE OF VIETNAM ESE

FEUDAL LAW BEFORE BEING INFLUENCED

BY CIVIL LAW SYSTEM

2.2.3 The Distribution o f the civil law. 10

coỉonial time.

2.3.2 The concept o f law 12

2.3.3 Some main codi/ìcaíion o f Vietnamese feudal law 17

SYSTEM IN VIETNAM

3.2.2 French laws were imported ỉn Vietnam by imposition 22

3.2.3 The evaluaíion o f the reception o f French law 23

3.2.4 The Ideologies in Vietnam during Colonial regime 27

revolution o f 1945 to the renovation times (Doi moi)

3.3.1 Introduction 29

3.3.2 The period fro m 1945 to 1954 29

3.3.3 Theperiod fro m 1954 to 1976 30

3.3.4 The period fro m 1976 to 1986 31

3.3.5 Renovation o f Vietnamese legal system 32

INTERNATIONAL INTEGRATION

4.2 Main aspects relating to the inAuence of civil law 39

system on Vietnamese legal system up to now

4.2.1 In the area o f civil law and commercial law 40

4.2.2 Legal education in Vietnam reỉating to legal education in 43

some civil law counties

The iníluence o f Civil law system on Vietnamese legal is very extensive under the comparative point of view The question of how to identiíy Vietnamese in relation to civil law legal system is very interesting and delicate question It would be rational if we deal with this issue from comparative and historical perspective point o f view Theoretically each legal system of one country is determined by the tradition, historical aspects through its development The picture o f Vietnamese legal system to day is determine by the historical factors, the tradition, the iníluence o f the diổusion o f civil law during the time o f colonial time and the iníluence o f Soviet law from 1954 to 1986 In the frame o f this thesis I would like to elaborate the iníluence o f civil law system on Vietnamese legal system through the main historical periods o f Vietnamese legal history I just focus the iníluence of civil law system on Vietnamese legal system

in the area of private law (mainly civil law and commercial law) as well as legal education Vietnam has been undergoing economic reform since 1986 An important part o f that law reíorm has been inevitable task In the colonial time Vietnamese legal system developed in relation to western law by imposition of Prench law in Vietnam Today, Vietnamese legal system has been developing in relation to western laws by voluntary reception of western law to cater for the demand o f market economy The legal transplantation is gradually pervading all area o f Vietnamese legạl system so that in this thesis I want to mention to the concept o f reception o f law not only from countries belong to civil law tradition but also from other legal tradition The thesis cannot necessity o f provide in depth all aspects o f Vietnamese legal system, nor cannot it cover all aspects o f the iníluence o f Civil law system on Vietnamese legal system The result of my studies in this thesis to some extend may contribute for identiíying Vietnamese legal system

For a person who has very little experience in comparative law and I fist carry out the research in comparative law In addition comparative law seem to be very new discipline in Hanoi law University as well as others law school in Vietnam

so that shortcomings are inevitable to my limited knowledge and time for doing

it However, I hope that the content o f my thesis to some extend shares the point

of view with any ones who concerning Vietnamese legal system from comparative law point perspectives

To complete this thesis, I would like to express my gratitude to Prof Kjell Modeer, Prof Thai Vinh Thang for their assistance me in writing my thesis I also would like to say thank you to all o f those who help.in preparation o f this thesis: to íaculty o f law o f Lund University, Hanoi law University I would like

to acknowledge the help o f SIDA( Swedish International Development Cooperation Agency) that give me scholarship to study master programme in Vietnam and in Sweden

Nguyen Van Nam Hanoỉ, Nov 2004

< Abbreviation text > < Explanation >

Am J Comp L American Joumal of Comparative Law

Colum J Asian L Columbia Jouraal of Asian Law

Ind J Global Legal Stud Indiana Joumal of Global Legal Studies

L & Bus Rev Law and Business Review of the Americas

Mich J Int'l L Michigan Joumal of International Law

1 Introduction

Law exists in all societies in the world; any society has been iníluenced by law \ From the legal history and comparative point o f view the legal system of each country is not isolated from others legal systems As Aian W atson’s view is that

it is even so that ‘most change in most systems are the result of borrovving’ 2 Legal systems in the world have their similarities and differences To some certain extent, we can say that legal systeras in the world can be divided in to some major legal systems such as Civil law system, Common law system, Socialist law system etc Regarding to Vietnamese legal system today, the question is how can identiíỳ Vietnamese legal system in relation which the characteristics o f major legal systems in the vvorld How can we subsume Vietnamese legal system into Socialist legal family or Civil law family or Mixed legaỉ system

For me after for along time paying much attention to this issue I have decided

to chose the title o f my master thesis is “The iníluence o f the civil law legal system on Vietnamese legal system” In this thesis I want to approach the issue from comparative law and legal history point o f view to describe which reasons made Vietnamese legal system iníluenced by civil law system and the remain and the continuity o f the iníluence To day in the time o f renovation-times (Doimoi), the very necessary need for Vietnam is how to create a good legal system to develop the country within the demand o f market economy Vietnamese legal system now has long historical development Through the long legal history, the iníluence o f French law took very important íactor to transfer the Vietnamese feudal legal system to the new form o f legal system During the French Colonial regime in Viet Nam (ữom 1858 to 1945) some areas of law and the structure o f court system, the legal education in Viet Nam has been iníluenced by some main characteristic o f Civil law tradition From 1954 the Vietnamese legal system started to be iníluencing by Soviet Union law, the legal system have changed socialist orientation After Doimoi (renovation) the lawmaker in Viet Nam start thinking how look upon Vietnamese legal system to

do good legal reception to build a good legal system in Viet Nam, especially the reception o f law from some civil law countries must be taken into the consideration That is the rationale that I want to illustrate in this thesis to make

c le a r about different respects o f the inýĩuence o f civil law system on Vietnamese legal system.

The purpose: The objective o f this thesis is to consider the evolution o f the

inữuence o f civil law legal system on Vietnamese legal system that has been taking place from the end of 19th century.The aim o f this thesis is íìrstlv to mention the overvievv o f civil law system to make clear how to identiíy civil law system, to distinguish civil law system with other legal system on the world today Secondỉv from the legal history point of view the Vietnamese feudal legal system is also illustrated in general view This content is very important, help us understand how Vietnamese legal system had been changed by the impact o f the

1 Jean - Claude Ricci, Introduction à l ’ etude du droit, trans By Tran Quang Hieu ( Hanoi,

Communicational cultural Publisher, 2002), p 3.

2 A Watson, Legal transplant ( 2 nd edn, the University o f Georgia Press, Athens, Georgia, 1993), p 95.

importing Prench law in to Vietnam French colonial domination created new features to Vietnamese legal system during the domination Thirdly this thesis aim at clariíying some main periods o f Vietnamese legal history relating to the iníluence o f civil law in some respects from civil law to legal education Fourthly The thesis concentrate on the contemporary Vietnamese legal system with the iníluence o f civil law system in civil law code, in commercial law, in legal education and the legal reception is also deíined within the context of Vietnamese legal system Fifthlv the outcome of this thesis will be used for teaching some issues in comparative law in Vietnam.

The methods: The working methods which mainly I intend to use to deal withthe issues o f this thesis are comparison and description That mean I want to approach the issues from legal history and comparative law point o f view Base

on the legal history I want to describe how the Vietnamese legal system have been changing from the past to now By comparing I can point out the iníluence

of civil law system on Vietnamese legal system indifferent perspective of law In some parts o f the thesis I also use the analytical method to prove some main points in the content of the thesis, for example analysing the iníluence of legal education in the context o f changing Vietnamese legal system to legal system in the colonial regime

The resources and literatures are in both English and Vietnamese To carry out

the research within the issues o f this thesis I use some main text book in the subject o f comparative law like: (1) , Comparative law by Bogdan.Michecil, Nortedts juridile, 1994.(2) Comparative law in the changing world by Peter de cruz London 1995,(3), A Modern approach to comparative law by Peter de cruz ,Kỉuwer, 1993.(4), Major ỉegal sysíem in the world today by Rene David & Jorhn EC.Brierỉey, London Stevens 1978.(5), Legal traditions o f the ỈVorld by H.Patrick Glenn,Oxford university press, 2000.(6) the European legal history by

Of Robinson.Tđ Pergus and Wm Gordon pubỉished by Butterworths London

2000. I also use some articles in diíĩerent volume o f International encyclopaedia

o f comparative law and the resources on Wesílaw Com on Internet.The Vietnamese Resources are very important to my thesis those include book of Vietnamese legal history, monograph of law, and articles in Juridicum law review in Viet Nam

The limitation of the content of thesis: within the frame of the m a s te r thesis I

cannot mention to all respects o f the iníluence o f civil law in Viet Nam In this thesis I have narrovved the content down to analyse some main points of the legal culture perspective The iníluence o f civil law system on Vietnamese legal system is mainly mentioned in the area of civil law, commercial law, court, and legal education The period of French domination in Vietnam is concentrated because this period the starting o f the iníluence o f French law took place French colonial emperor promulgated many laws and applied those laws in Viet Nam during the time o f domination but I only íòcus on what happened in the area of private law in this period and the legal education changed French orientation The system o f the court is also mentioned because this is very important proof to prove the changes to Vietnamese feudal legal system Some íòllovving period, after the period o f French domination I have paid much attention to how the iníluence o f civil law could be remained and have lasted so far To look upon the contemporary Vietnamese legal system in relating to Civil law system I just focus on the area o f civil law, development o f commercial law, and legal education and how to think about the task of legal reception in Vietnam today to create a good legal system

2 Some general view of the civil law system and a picture of Vietnamese íeudal law beíore being iníluenced by civil law system

2.1 In troduction

Civil law system has a very long history in its development The civil law system has its iníluence all over the world by many reasons From the historical point of view, civil law system exceeđed the boundaries o f the ancient Roman Empire In the modern time, Civil law system spreads throughout the world, from Latin America, a large part o f Aírica to the countries o f the Near East, Japan, Indonesia and Viet Nam There are two mains reasons to explain why the iníluence o f civil law system has taken place in so many countries in the world

The /irsí reason is the colonization that imported the laws from Metropolis to their colonial countries The second reason is the voluntary reception o f civil law like Japan In many countries owe to the iníìuence of civil law, their legal system have changed from the old form to the new form that have the relation with the civil law system If One legal system have undergone the iníluence of civil law

by any fashion it is diíĩicult to get rid of the main characteristics of civil law The iníluence will remain and have decisive for building and developing the legal system o f the country For Vietnamese legal system, beíbre being iníluenced by French law, there was no relation to civil law system During the time o f French colonization, Vietnamese feudaỉ legal system had been transíerred to the new form French civil law based on the Roman law was imported in Vietnam As the result of the iníluence of western legal culture, the court system in the colonial time was organized by adopting French court organization The democratic idea o f French revolution was the important factor that illuminated the rise o f the democratic ideas in Vietnam during the first half

of twentieth century Undergoing the imposition o f French law, Vietnamese feudal legal system was changed its homogeneity which was determined by the characteristic o f Vietnamese ancient law, developed under the iníluence of old Chinese law

2.2 Overview of cívil law system

2.2.1 Terminology of civil law system

According to Peter de Cruz “It has become established to classiíy the legal system o f the World into three main types o f legal íamilĩes or legal traditions:

5

Civil law, common law, and socialist law” A legal system has been deíined as a set of deeply rooted historically conditioned attitudes about the nature of law, the rule o f law in the society and the political ideology, the organization and operation o f a legal system3

Comparativists have employed several classiíìcations based on non- homogeneous factors The most successíul o f these is the one proposed by René David, which divides the world in four families: a) common law; b) civil law; c) socialist law; and d) other conceptions o f law (residual classification).Other classifiers apparently felt a need to add complexity to this simple scheme Uníbrtunately their own classiĩications become more complicated and hard to remember, and end up coníìrming the very classiíìcation they sought to replace 4 The term o f civil law system can be called in others terms such as Romano- Germanic legal system and Continental law system According to Peter de Cruz,

it is important to clariíỳ the terminology that is used to describe civil law systems and the civil law tradition, because the term ”civil law” is susceptible to several different meaning5 The term civil law refers to the origin o f the legal system that derived from ancient Roman law which originated in Europe on the basic o f the Roman ịns civile which was applicable to citizen, between citizens

within the boundaries o f a State, in a domestic context Some comparatist also prefer to use the terminology o f Romano-Germanic /amily 6 that means the legal system consists itselí both the Roman heritage and the contribution o f German

leg al S cience in th e d e v e lo p m e n t o f its juristic style In other w o r d w e can

explain that the tradition o f civil law is characterised by a particular interaction

in its carly íbrmative period among Roman law, Germanic and local customs, canon law7.The present writer prefer the terms civil law system or civil law tradition because they are well established in content and generally typiíy a distinctive juristic style vvhich is widely recognized and accepted.8

The term civil law is associated with civil law countries, When we refer to civil law countries, we are referring primarily to countries which have inherited the Romano- Germanic traditions (vvhich are apart o f civil law tradition) which have distinctive juristic style Civil law is to some extend distinguished with the body

of law known as commercial law In Common law system there is no distinction drawn betvveen civil law and commercial law, for the simple reason that in Common law systems, Commercial law is part o f their civil law ( as apposed to criminal law ) Moreover , as a term o f art, Commercial law is o f fairly recent vintage in common law academic thought although its content is traceable to ancient mercantile law (LeX mercatorià) which was developed by international fair and mercantile practice

3 Peter de Cruz,A raodem approach to comparative law, Kluwer law and taxation

Publishers,1993, p27

4 Ugo Mattei, Three pattem s of law:” Taxonomy and change in the world legal systems”, 45 Am

J Comp L 5

5 Peter de Cruz, supra note 3, p41.

6 David and Brieley, M ajor legal system in the world , The Third edition, (Steven &Sons Ltd,1985), p23.

7 Mary Ann Glendon, M ichael Wallage Gordon, Paolo G Carozza: Comparative legal tradition, Second edition,( West Group, 1999),p lổ

8 Peter de Cruz, supra note 3,p 41

2.2.2 History of civil law system

T h e civil law s y ste m w a s fo rm e d in th e C o n tin e n ta l E u r o p e a n d h a s b ee n

principally centred there today even though, because of the phenomena of expansion and reception, many non European countries have adhere to it or borrow certain of its elements Geographically, European legal history is primarily concerned with those countries of western European share a common legal heritage, based on the mingling o f Roman or civil and cannon law- the learned law - with feudalism and customary law9 In The frame o f this thesis, I would like to describe very brief about the legal development o f Civil law system through the history, development, culture and distribution of Roman law

In the world history, Roman law appears have undergone tow distinct period of development

The first period dating from the period of Roman Empire10 , and ending with the Compilation by Emperor Justinian(A.D 527-556) of, inter alia, the Code and Digest 1 To day we can understand about the Roman ỉaw in this period by looking upon how the society of the ancient Roman Empire, the content of the Corpus juris Civilis The Roman Twelve Tables law can be called the fưst landmark in Roman legal History The twelve Tables which were draw up by special appointed commissioners, consisted of m ain ly Latin custom, with certain borrowing from Greek law, which formed the basic o f the law12 In the Roman Republic which is generally reckoned to have ended in 27 BC There are man upper classes, known as jurist, who specialised not so much in acting on behalf

o f other in courts o f law (as orators like Cicero), as in giving advice on legal matters 13 In the early Empire, the Principaíe, the period o f classical law, jurist advice the parties to litigation., they advice the lay judge who decide the case on the facts There was the period o f crisis in the Roman Empire, the action in legal advising had been declined Only under the Emperor Jitinian(AD527-26), the restorer o f the ancient law Today we can understand about Roman law by reading the content o f Corpus Iuris Civilis which were compiled by the invention

of Emperor Justinian

The content o f the Corpus Iuris Civilis included four parts:

(i)the Instituíion(oT institutes) expressly issued as an elementary textbook for first year student o f law;

(ii) the Digesí a compilation of edited juristic vvritings, dating from the very late Republic to the mid- third century; This is the most important part

o f the Corpus Iusris and the Classical period writings are still regarded as the most illuminating

(iii)the Code (or Codex); a collection o f emperial enactments, that

is general edicts, judicial decisions and authoritative opinions, from the time o f Hadrian(AD 117-38)

9 OF Robinson, TD Fergus, WM Gordon, European Legal History, Third edition, ( London: Buttenvorths, 2000), pPreface.

10 To use the term Roman law to describe the intire Roman legal output o f nearly a millennium stretch from the Twelve Tables(c 450 B.C).

11 Peter de Cruz, A m odem approach to comparative law, Kluvver law and taxation

(iv) the novels, which was Justinian’ s own enactment subsequent

to the publication, in AD 533-4, o f other three parts of the novels there was never an oíĩicial, defmitive collection14

The second period is called the time of revival or Renaissance o f Roman lccw or the second life o f Roman law begin with the scholarly study o f Justinian’s works

in the Italian Universities in the late eleventh century A.D.15 The popularity of this intellectual pursuit spread to the rest o f Europe and to a certain extent, even

to medieval England, leaving a lasting impression on juristic terminology and legal thought as well as the structure of European legal systems, which continued until the period o f the great codiýication in the nineteenth century

From the historical point o f view, Europe entered a period o f political, economic and cultural transíormation from about 1050 A.D on ward The gradual return o f political order established conditions that facilitate speculative learning Economic expansion, too, with its requirements for predictability and efFicient methods o f dispute resolution, led to a renewed interest in law Along with the scholars in other íìeld, jurist began to turn, vvith excitement of discovery, to the accomplishment o f antiquity 6 The revival o f Roman law that took place in northern Italy toward the end of end o f eleventh century was rediscovery, through the Justinian legacy, o f Roman legal Science The University of Bologna was known as the fưst Centre for teaching Roman laws

At that time students who came from all over Europe to Bologna to learn law aíter graduating from Bologna, law Students were enriched their knowledge (with the Roman law from the lectures on Corpus Jurist Civil, Justinian digest) became the tìrst generation o f scholars as the Glossators o f Roman law This really laid the foundation for a common law o f Europe The development o f the law from the law from the twelve century on ward was determined by the manner in which the Glossator used the Justinian’s texts, not Roman law as Justinian might have intended or as it might have existed in the classical Rome Gradually, the method o f interpretation changed into the new method of commentator Thousand law students had trained in law faculty in Italy carried back their own nations and university not only the law of Corpus Juris Civilis but also the method and the ideas o f their teachers They and their teachers became the new proíessional lawyers who worked for not only in the universities but in the bureaucratic administration of princes, cities and the churches By this way, the Roman law iníluenced in many centres o f Europe such as Paris, Oxíòrd, Prague, Hiedelberg, Cracow and Copenhagen

The Roman civil law, together with the immense literature generated by the Glossators and the Commentators, came to be the ju s commune, the coramon law o f the Europe17 As Peter de Cruz said in his lecture ” Through the Bologna lectures the dissemination o f Roman law through its scholars, íiltering through the courts and the legal practice, Roman civil law as interpreted by the Glossators and commentator became the basic o f a common body o f law and legal commentaries, a common legal language a common approach to teaching and scholarship This is often called Jus commune”

14 O.F Robinson, T.D Fergus, W.M Gordon, European Legal History, Third edition, ( London: Buttenvorths, 2000),pl.

15 Peter de Cruz, supra note 3,p.46.

16 Mary Ann Glendon, Michael W allage Gordon, Paolo G Carozza, supra note 7,p.23.

17 Ibid.,p.25.

During four century, from the twelve century to sixteenth century, owe to the development o f legal S cien ce through Europe The Judges got used to applying Roman law, instead of applying local laws or customs law to cases that came before The common law o f Europe that eventually emerge towards the end of the middle ages was therefore a mixture o f local statues and customs a form of

R o m a n law as in te r p r e te d by v a r io u s school o f thought and C a n o n la w 18 T h e

unity achieved by the reception o f Roman law in to the civil law was íurther reinforced by Canon law, which had become the universal law o f the western church and which remained in use even in the darkest day o f the Roman law.From the sixteenth century, through seventeenth century, to eighteenth century, the history o f civil law system associated with the natural law movement, Humanist and the nationalism o f law in Europe In this period, there was the new method o f French legal humanist in looking at laws According to the Humanist, the Roman law as merely an ancient (rather than as living law or written reason) marked a step toward eventual displacement of the jus commune19 The natural law movement came from Dutch Natural law School, whose member developed

a systematic story o f law grounded in what they the universal Iaw o f nature The natural law movement represented an upsurge o f the rationalism, and the belief that ‘ the law o f for any society could by the use o f reason be deprived from the principles inherent in the nature o f man and society’ (Nicholas 1962)20 The natural law school which dominated thought at this period departed in several respect from the thinking of the post -glossators It abandoned the scholastic method and íurthered the systematization of the law by casting it in logical proposition, in imitation o f the sciences21 The iníluence o f natural law was considerable on the substance o f public and private law The naturaí law demanded that, in addition to the private law founded on Rọman law, Europe íòrmulate what it therefore had lacked because o f the universities’ very absorption in the Roman law: a public law giving eíĩect to the natural right of the man and guaranteeing the liberty of the individual The Nationalism o f law appeared in Europe by the middle o f the eighteenth century We can say that Roman law penetrated in the codification in each nation

Some early codes were complied in the Scandinavian countries in the seventeenth and eighteenth century Then a second generation o f codes not only aspired to bring about the legal unity within one Kingdom, but also corporate the political and philosophical thought of the eighteenth century These codes were the product o f “enlightened monarchs, like Voltaire’s friend Frederick II of

18 When we mention about the history of civil law system, Canon law must be taken into

account Indeed, after the fall of the Roman Empire, and until the revival of Roman law in the eleventh century, the single most im portant universalizing factor in the diverse and localized legal system of civil tradition was Canon law Canon law had been produced by Christian notions interacting reciprocally with Roman law after the Christianization o f the Em pire18 The essence

of Canon law is the law of the church Much of the development o f Canon law stemmed from the struggle between Papacy and Em pire, but despite the political tension, it must be remembered that from the twelve century to the sixteenth centuiy there was through out westem Europe a relatively uniíorm structure o f ecclesiastical courts, adm inistrating a íairly regular system, and staflfed by men who had undertaken a reasonably common education in Canon, and írequency in civil law

19Ibid„ p30.

20 Peter de C ruz; supra note 3,p.54.

21 David and Brieley, Major legal system in the world , The Third edition, (Steven &Sons Ltd 1985).p.46.

Prussia, and Joseph II of Austria, and bureaucratic administrators c 1756 and

179422 The most important codiíication event was the enactment o f the French Napoleon Civil Code in 1804.This proved to be a momentous event, not just because many countries adopted, adapted or copied through the world The codiíication in the nineteenth century was inherited the long tradition o f the civiỉ Roman law ưnder light of the Enlightenment, the French Code presents new element in to the field o f private law that are the equality, democracy, natural right to life, liberty and own property The codification of civil law spreadthrough Europe from France to Germany, Belgium, Italy, and Spain Thecodiíication of Civil law in France and Germany were probably distinctive even

to some extent they had over overlapped iníluence French Codifícation andGerman Codiíìcation play very important role in the development o f the Civillaw system

Codification of the 19* was a unique socio- historical phenomenon that emerged with the impulse o f Frènch revolution and the rise o f philosophical doctrines

s u c h as, jus- naturalism, rationalism and the Enlightenment3

It is widely accepted that in the post- codiíication o f French French extend their

legal iníluence far beyond Continental Europe to parts o f the Near East, Northern and Sub-Suharan Aírica, Indochina, Oceania, French Guiana and the French Caribbean islands24

The German civil code appeared at the end, the French Civil code at the beginning, of the turbulent century of the industrial Revolution The German code emerged from an intellectual and political background that diíTered in many ways from the enlightenment and revolutionary though that iníbrmed the civil code It is not surprising that Germany and France have inspired some what diíĩerent in the civil law world25 We can also see this small distinction of the two counties like America and United Kingdom in the Common law system It is very normal when we can see sorrìe different nuance o f law in the same legal tradition

2.2.3 The Distrỉbutỉon of the civil law

The map o f civil law system depend so much the distribution o f the civil law When some one says the civil law system appear ạll over the world This conclusion, according to me is very true The wide-long geographical distance has no impediment for the spread o f civil law system from Europe to other continent

France and Germany probably have been less iníluenced by each other’s law, legal institutions and scholarship than have other countries in within the civil law world The distinctive French and German codifications and styles of thought each had far-reaching iníluence, and to some extent their iníluence overlapped Thus a case can be made that “ typical “ civil law system today are not those of

P ra n c e or the Federal Republic of Germany, but rather those civil law system in which in modem times have undergone the combine iníluence o f both Nevertheless, in the post - codiíication era, French law and German legal

22 Mary Ann Glendon, M ichael Wallage Gordon, Paolo G Carozza, supra note7, p.32.

23 Maria Luisa M urillo, “The evolusion of codiíication in ứie civil law legal systems: To\vards

decodifxcation and recodification” ,,/o«r«ứ/ o f Transnational law andPolicy, Fall 2001

24 Mary Ann Glendon, M ichael Wallage Gordon, Paolo G Carozza,supra note 7, p.44.

25 Ibid., p 37.

Science have remained the two principle tributaries to the modern civil law tradition26.

In the early time o f the history of civil law tradition, the ancient Roman law was extended through the territory o f Europe by the power o f Roman Emperor The Latin Country is known not only by the strength o f Rome Emperor but the civilization of Roman law The Civil code was brought by Emperor Napoleon and his army to Belgium, the Netherlands, part of Poland Italy and the western regions o f Germany

The continuity o f the distribution of civil law in the colonial took the very important factor for the spread of civil law tradition beyonđ the Continental of Europe From the middle o f the nineteenth century, France imported her legal

Science to the Near East, Northern and sub- Saharan Aírica, French Caribbean Island, French Guiana, Indochina27 French Civil code enacted in 1804 was the

“model” to draft Latin American civil codes in early 19th century Since it had Roman law inAuence, it adoption did not require entire break from pre-existing Spanish and Portuguese colonial structure Moreover, the 19th century codiíìcation served to consolidate the Roman law introduced in Latin America

by Spanish and Portuguese colonial legislation In general, the language and concepts o f French codes were clear and íamiliar for Latin American countries because o f their aíĩinities with the legal institutions that were introduced in Latin American during the colonial period28

The counties were the French colony, received the characteristic o f Civil law system during the time o f colonization Viet Nam was the íòrmer French colony, had been received French law during the time o f French Domination Even today

we can And some trace o f civil law system in the Vietnamese legal system This

is the very interesting issue for comparative researcher to think how to identiíy Vietnamese legal system

The iỉiíluetiCẽ o f law sometime can be the coíitact o f different culture in the world Some counties in the Latin America relied on the light o f French law to abolish the old, an equal status in relation of feudalism Thus, one can speak of a reception of Prench law civil code not only in countries which retained it afìer the French armies and colonial government withdrew, but also in countries that were untouched by French military power29

Germany as well as Prance are regarded as the centre o f civil law system in the Europe The appearance o f civil law from the second half o f 19th century in Japan was the result o f the voluntary legal reception Japanese Civil code drew heavily upon the íỉrst draft o f the German civil code I n some areas o f legal

Science in Japan, the thoughts o f legal scholars have very close relation to

Japanese legal Science Through Japan, the German civil law also spread to Korea

26 Mary Ann Glendon, Michael Wallage Gordon, Paolo G Carozza , supra note 7,p.45.

2 Ibid ,p.44.

28 M aria Luisa Murillo, “The evolusion of codiíication in the civil law legal systems: Towards

decodiíĩcation and recodification”,Journal o/Transnational law and Policy, Fall 2001

29 Mary Ann Glendon, Michael Wallage Gordon, Paolo G Carozza: Comparative legal tradition, Second edition,( West Group, 1999),p44

2.3 The overview of Vietnamese íeudal íaw before colonial tỉme

2.3.1 Introduction

The Bac Dang victory in 938 put an end to the period o f Chinese imperial

domination In 938, Ngo Quyen proclaimed himself king, established his Capital

at Co loa ( privious a Capital in 3 rd century B.C) and set sup a centralized government It was the íirst truly independent Vietnam State30 In 1009, the Ly dynasty took power, beginning Vietnamese feudalism Vietnamese feudal law was associated with the appearance of Vietnamese feudal State which ended

in 1945 Vietnamese feudal law had been iníluenced by Chinese law The Chinese cultural imprint on Vietnamese life and law was already indelible But Vietnamese feudal law appeared its own characteristic in comparing with Chinese law When French colonial tool place in Vietnam, Vietnamese feudal law had been altered by civil law tradition which was imported into Vietnam by French imposition It was not easy for applying alien laws in to legal system which had long tradition.In this part I would like to introduce Vietnamese feudal legal system in its development to make clear the iníluence o f civil law in the colonial time

2.3.2 The concept of ỉaw

When we mention to the Vietnamese law beíore the time Vietnam was being attacked by French Colony, this mean we refer to the Vietnamese feudal ỉaw If

we regard law as culture, we can see many cultural factors which were penetrated in Vietnamese feudal law If one ignores those factors one would make mistakes in identifying Vietnamese feudal law

The concept o f law in the western society is somewhat different from the concept o f law in the East In the West, law is one aspect o f society, and it is pervasive; indeed in the mediaevalist it is unavoidable Further m ore Much philosophy and political theory has only been conceivable in term o f law While law may often be the mean by which a ruling class can safeguard its position law

is also the mean by which justice can be achieved or at least sought;

The ancient Vietnamese society shared raany similarities with the Chinese society and the East in general But Vietnamese culture has its own distinctive characteristics, include in law Undergoing more than thousand years by Chinese domination, Chinese Emperors imported their culture habits, and their conception o f law to Vietnam To day, when Chinese domination had gone away, some factors o f Chinese culture still remain in Viet Nam The Vietnamese feudal law system had been iníluenced by three main philosophical ideas: Coníìician; Legalist; Buddhism;

- Vietnamese feu d a l ỉaw in relation to Confucianism

The Coníìicianism plays very important role in Chinese and Vietnamese attitudes

to law and the legal development Coníucianism fírst appears in China, the person who was the lead o f Coníiicianism is Coníucius (551-548A.D) A mạjor iníluence on Vietnamese attitude toward law is Coníucianism, introduced by the

30 Nguyên Khac Vien,Vietnam a long history, (Hanoi, Thegoi Publishers, 2004),p24.

Chinese during more than eleven hundred years they dominate Vietnam beíòre

938 A.D Coníucian is an ethical concept which Chinese applied to social organization as well as to their personal lives The patriarchal family was the model for a perfect society, and Coníucian Doctrine prescribles for its support the duties and obligations owed by child to parent, wife to husband, younger to older, and all of the father as the senior representative o f the family group As the farther-figure o f the empire, the emperor exercised absolute parental authority over his subjects31 Gradually, Coníucians rooted in Vietnamese society As the famous Vietnamese researcher evaluated” any trace o f Vietnamese cuỉture consists o f the characteristic o f Conýuciansm ”32

Coníucianism is known as the basic theory for the existence o f Vietnamese feudal regirae According to Coníucian, the position o f the King in feudal State was determined by God The King seemed to obey the order from the God to govern the whole society People in feudal society have to subject to the King of the country in .How ever, according to the rules o f Coníiicianism; The King must govern the society vvithin his realm under the rule o f God (Troi) The King has to take care o f the people in the society This is the positive value of Coníùcianism However, through the history of Vietnamese feudal, only some King carried the rules o f Coníucianism in exhaustive manner To some extend, prosperity and decadence o f each Vietnaraese feudal Dynasty depended so much

on the talent and Virtual o f the King

In China as well as Viet Nam, Coníucianism iníluence on the everyday way of life up to lacks a parallel in any other part of the world When mention about the role o f Coníucianism in Chinese law, Prof Micheal Bodagn write “Even through Confucius never made any claim o f divinity, the ethics and moral beliefs of Coníùcianism were elevated almost to a form o f State religion in China and gained very strong iníluence upon the population in general” This conclusion may be alsơ true for Vietnamese society in feudâl time The first University in Viet Nam was created in Ha Noi in the eleven century (Ly Dynasty) At that time the main subject was taught is Coníucian

If one compares the differences between the concept o f law in the western society and the eastern society one can see the main difference is: in the East the role o f Coníucianism was very important, Law would give up its place to morals According to Coníìicius, judges and statues were a necessary evil to punish criminals but they were not needed to regulate the aữairs between honest people33 The good way for dealing with the disputes is by conciliation and compromise in accordance with ethical principle This characteristic can help us

to explain why some civil laws and procedure law o f French Colonist were enacted in Vietnam during colonial time were not successíul as French expected With the French conquest and the iníluence o f Western philosophies, Coníucianism began to decline However, Coníucianism still pervades the thinking and behaviours o f Vietnamese people from all walks o f life It should be noted that the Vietnamese people do not follow many o f the Coníucian tenets

As an illustration, the pronouncement that "when the father dies, the mother

31 The Vietnamese Legal system, h ttp: //www army mil/cmh-

should obey the childrèn" has in reality never been practiced The widowed mother is till respected and obeyed by all her children.

From historical point o f view, if we look at the Le Code34 we can see some of the iníluence o f Confucian social values in traditional Vietnamese law was apparent in two major forms First, infraction o f the Coníucian moral code was treated as criminal violations The lack o f íilial in family relation., was considered as a heinous crime Marriage during mourning for one’s parent or during their detention was punishable People were permitted in most circumstance to conceal crimes committee by their relatives Second, privileges, procedural or substantive were extended to the people enịoying the high special consideration or to oíĩicial35

Even today, it is very the continual survival of traditional Coníucian attitude to Vietnamese law Even now, Vietnamese law has very much been iníluenced by western legal culture We should keep in our mind that Coníucianism rooted in Vietnamese society

To the extent that there are such things as "Asian values", Asians have traditionally been viewed as valuing the family and community over the individual This tradition ranges back at least to the time of Mencius and is reílected in the modern Japanese proverb "the nail that sticks up gets hammered down." Whereas Asian cultures are viewed as communitarian, from the Western perspective at least, modern Western societies are founded on the notion o f the íundamental importance of the individual 36From the comparative perspective, Asean countries nowadays even share the common value in their legal cultures

-The Vietnamese feu d a l law ỉn relation to Legalism

The íòunder of Legalistic schooi was Hsun Tzu( ) In contrast to Confucianism’s benevolence, and Taoism’s intuitive anarchy Legalism is a classical Chinese philosophy that emphasize the need for order above all other human concern The political doctrine developed during the brutal years o f the Four century BCE(Schfer 83) The legalists believe that government could only become a

S cience if mlers were not deceived by pious, impossible ideals such as

“tradition” and “humanity” In the view o f the legalists, attempt to improve the human situation by noble example, education, abd ethical precepts were useless Instead, the people needed a strong government and a careíìxlly devised code o f law, along with a policing íòrce that would stringently and impartially enforce these rules and punish harshly even most minor iníractions The Ch’in founder based his mle on these totalitarian principles, and had strong hopes that his government would endure forever37

Like Coníìicianism, Legalism was imported in Viet Nam during the time o f Chinese Domination The reception o f legalism in Viet Nam, proved that the legal thought o f Vietnamese feudal scholars had been totally iníluenced by Chinese philosophy After creating the independence o f the country, the most of

34 The Le Code was promulgated in the time of Le Dynasty by Emperor Le Thanh Tong (1468- 1471).

35 Nguyen Ngoe Huy, T a Van Tai,Tran VanLiem, The Le code law traditional Vietnam,{ Ohio

University press Athen,Ohio Lon don, 1987) p56.

36 Benedict Sheehy,” Singapore, "Shared Values" and Law: Non East versus West ConstitutionalHermeneutic” , Hong Kong Law Journal

2004, 34 HKLJ 67

37 Legalism and Chinese Philosophy ,http://web.cn.edu/kwheeler/chinese_legalism.html

King of all feudal dynasty in Viet Nam paid much attention to make law to govern the society.

To talk about Legalism, we just keep in our mind that there are both sides of theory of Legalism On the credit side, we can find many active characteristics

o f legalism According to the legalism, there are three mains requirements associated with law,(i) Law, first of all must be transparency this criterion is very necessary for good political prosperity.(ii) law must be applied in exhaustive manner, every one must be subjected to law ( iii)Law, especially criminal law with heavy punishment is not indispensable for the society 38 Hsun Tzu, the great thinker o f Legalism requested it would be better to abolish the rank of people in the society Every body is equal beíòre law Even today in the modern time, may be some o f positive criteria of legalism still proved true in some certain extend On the debit side, we can find some negative results when we look upon the feudal society under mle o f Legalism Through the legal history of Chinese and Vietnamese feudal law, appeared the very heavy punishment system Some cruel Kings appreciated for abusing inhuman punishment system

- Buddhism

To day in Viet Nam, it is a very controversial issue to talk about how Buddhism was imported in Viet Nam Some one believed that like Coníucianism and Legalist, Buddhism was extended to Viet Nam by Chinese From the historical point o f view, I strongly believe that Buddhism was directly propagated in Viet Nam by Indian Buddhist39

During the time o f Chinese domination, the Chinese policy o f carrying out cultural assimilation o f the mass and yet at the same time preventing any advanced learning from Chinese books this leading to the very important role of Buddhism and the Buddhists in Vietnam from very early time The monks who seemed to be the only indigenous intelligent class had to study Chinese ìn order

to read Buddhist scripts In the early years after the regaining the independent from China, the Buddhist monk helped the new Vietnamese Emperor so much in State aíĩair: such men often served in diplomatic relations with China 40

Buddhism became the State religion o f Vietnam under Ly Dynasty (1010- 1214) Several kings took the cassock or retired into a pagoda after their abdication Buddhist monks served as counsellors to the king at court Since the Tran Dynasty (1225-1440), Buddhism has lost the status o f a State religion but nevertheless remained the dominant religion in Vietnam and a major cultural force The main characteristic o f Buddhism is the humanitarian sense o f mercy bout people There are some similarities between Buddhism and Coníucian those are: love o f peace; sense o f mercy (he who has no sense o f mercy is not a man); dislike violence; through the history o f Vietnamese feudal era, there were many Emperors in different dynasty showed the mercy charity and his benevolence to

38 Pham Duy Nghia, M onograph of economic law (Hanoi :National ưniversity publisher, 2004),

P 6

3 According to One later resoure of the Tran Dynasty (1225-1400), a fifth -century Chinese emperor, Kao - t i of C h ’i(479-83) was patron of Buddhism and nad sought to expand Buddhist ĨRÍluence in Viet Nam He was told by a monk that Buddhism had already reached in Vietnam from India by the second century or earlier, predating its arrival in the area of China rule by C h’i The monk was able to provide the names of several Indian monk of the third century who had travelled to Vietnam, such as Marajavaka, and Kataruci, as well as that o f a Chinese Taoist who went to Vietnam in 189 and converted to Buddhism five years there aíter (soure from Lecode).

40 Nguyên Ngoe Huy, Ta Van Tai,Tran VanLiem, supra note 35, p.7.

the people Example, Emperor Thai Tong (Ly Dynasty) had pardoned many political crimes (oíĩicial crimes) He also paid attention to the living condition of the suspected crimes who was being detained in the prison.41 This is just not a justifiable policy of punishment and reward All that Emperor Thai Tong was infatuated with the petty humanitarianism of the Buddhists and forgot about the great principle o f the King42

The religion in Viet Nam in the feudal time did not have so much power as the Christian in European feudalism There was a long time in the mediaeval times

in Europe, the Christian church had so much power, the Western King always obeyed the order o f the Church In Vietnam in the mediaeval time, the top Buddhist monk had never taken over the power o f the King But the Vietnamese King ahvays respected Buddhism and protected Buddhism The Nguyen dynasty was suspicious o f French iníluence Roman Catholic missioners and their Vietnamese convert were persecuted, and a few were executed during the 1830s

- Customary law.

When we mention to feudaỉ law o f Vietnam as well as Vietnamese legal culture today, it is indispensable to bring out the role o f customary law in Vietnamese society and laws From my point o f view, the customary law is an important factor for one understand specific characteristic o f legal culture in Vietnam It is widely accepted that Vietnamese society in the early time, developed from civilization of agricultural rice The villages in rural areas were self- ruling regime Any village in Vietnam had its own self- governing in administrative are, íinance From the legal point o f view, any village in Vietnam had its own unwritten or written local custom ( sometimes Customs o f commune or village very from one place to another ) The customs reglement communaux often were stipulated in village’s regulation or ( Huong uoc- coutumier ). The local custom contained many model conducts for social, religious, relative,.behavior If there was âny unusual behaviour, conílict between the peasants The solution for those conílict first o f all would be resorted to Huong uoc then the law o f the King would be applied That’s why there was an idiom “ K ing’s laws stay at the gate

o f the v i l l a g eOr 1 The law o f Emperor have to give way to village custom ’

Through the history of Vietnamese feudal, the Emperor’s authority rarely intervened the internal affair of the villages

At the middle o f the eighteenth century, French army conquered Viet Nam and then they set the rule over territory of Vietnam for the colonization process prench colony carried out the research about administrative situation in Vietnam French had tried to do the administrative reíbrm at commune level(Reforme communale) but they were not successíul with this policy I would like to quote the sense of Oíĩicer Pierre Pasquier “The organization o f commune in Vietnam

is so complete We can not change any in thing o f structure in commune We will have no beneíit to intervene the internal affair o f the commune” This remark made French think how to govem in L ’Annam(Vietnam) with the respect

of local customs That’s why, Some Civil codes in Vietnam during the time of French colony contained the provisions which was consistent with Vietnamese customary law in the rural and mountainous area

41 Vu Van Mau, Vietnamese Ancient Law, Sai gon Publisher, 1970, p 92.

41 Dai viet su ky toan thu,Ha noi 1967, Vol 4

2.3.3 Some maỉn coditỉcations of Vietnamese feudal law

To deal with the issue of the iníluence o f civil law on Vietnamese legal system,

it is inevitable to describe about the picture of Vietnamese feudal law The know ledges o f feudal ỉaw that help us to understand what happened to Vietnamese legal system when French Empire imported vvestern law into Vietnam In Viet Nam, many legal scholars have been taking care o f studying feudal law Vietnamese legal researchers ahvays remind themselves ‘Looking at the past to understand better íuture’ When Harold J.Berman wrote about western legal tradition, in his Article he very concentrated about the legal history It is important the historical development o f our legal institutions in order to know what they are, we cannot understand what they are to day, just as we cannot know who we ourselves are if we do not Know how we came to be who we are, let me quote Holmes’s one famous words” in order to know what the law is, we must know what it has been, and what it tend to become”43

The very long historical development o f Vietnamese feudal law, lasted for more than ten centuries, had suffered many iníluenced by Chinese law and Chinese legal culture44 But before the era of feudal, the primitive State o f Vietnam featured the simple laws These laws in some extend were different from laws in Han law (ancient Chinese law) 45 From the Ly Dynasty to Nguyen Dynasty the Vietnamese feudal legal system gradually developed to reílect evolution of society It would be diữicult to give an overall picture through the substantive law and the detail required would be a deterrent to all but the enthusiast46

a) The Ly Dynasty (1010-1225).

The Ly Dynasty marked the stable monarchy o f Vietnamese íeudalism Keeping the throne for more than two hundred years, the Ly Dynasty fírst contributed to their eíĩorts complete the feudal apparatus, reorganization o f administrative structure The first Emperor of Ly Dynasty had decided to transfer the Capital o f the realm from its secure peripheral location o f Hoa lu (Ninh Binh Province from

Ha Noi to the South about 80 kilometres) to the side o f Hanoi on the Red river delta

During the Ly dynasty, as for the trend o f thought, all the three religion of Coníìicianism, Taoism, and Buddhism were held in esteem But the Buddhism was the most respected Many Ly Emperor were enriched their

43 Harold J Berman, The Western Legal Tradition in a M illennial Perspective

íuture, Lousiana law Review Vol 60,p740.

44 According to Vu Quoc Thong: There are two main reason for Vietnamese

time were iníluenced by Chinese law First, Long time Chinese domination Second, Vietnamese legal culture had no contact with any other civilization except the Eastem Civilization 22

45 In A.D.39 a revolt led by the sisters Trung Trac and Trung Nhi, broke out in Han C hina’s Giao Chi(Chiao-Chih) province, íòrmerly of VietNam Hou Han Shu( The history o f the later Han Dynasty) provides some details of this revolt The record says that after the govem or of Giao Chi used law to conừol her.Trung Trac declaired herselí queen and seized sixty five cityadels Many women participated in Trung Trac uprising Later Emperor Kwang Wu of Han Dynasty sent his army to suppress the revolt Hou Han Shu had his comment on the legal reíbrm of M a Yuan in Giao C hi”Vietnamese law in comparing to Han law There were more than ten different items “ Aíiter that the old laws were promulgated to iníbrm the Viet people and to conưol them, Lac Viet people had to abide by the old laws of M a Yuan see:Vu Van Mau, Co luat Viet Nam luoc khao,

SG 1970.

46 O f Robison, TD Fergus, WM Gordon, supra note 9, p iv preface.

laws in the feudal

Buddhism Buddhism was connected with the Ly throne from the very beginning

o f Ly dynasty47 To show the respect for Conílicianism, the Coníucian scholar made complaint about the policy o f Buddhism in Ly Dynasty ‘ Buddhism temples are in every village but nowhere does One find one for Coníucius’

There ware three major íeatures o f in the legal development under Ly Dynasty First, the remarkable achievement of legal system under Ly dynasty was the first codification o f criminal law Emperor Ly Thai Tong( 1028-1054) promulgate criminal code (Hình Thu- Book o f punishmení ) in 1042 Unfortunately, This code was no longer extant Because during the Ming occupation in the fifteenth century, the Chinese conquers intentionally seized all the Vietnamese literatures including law in order to destroy the Vietnamese culture at that time To day we can understand the content o f Hình Thu by the historical books in later Dynasties The later oữicial o f Le Dynasty describes the situation which let to this new compilation:

Up to that time, law suit in the country were complicated, Judges stuck so much to the letter o f law that they became harsh, even to the point of condemning innocent pẹople The Emperor, having compassion for them, order that the law and regulation be revised to make them more suitable to the time and had them classiíied into categories and written in to articles o f a criminal law book o f the Dynasty for the easy enlightenment o f the readers

The early codification in criminal law not in civil law in the legal system of Vietnamese legal system at feudal time, reílected the trend of law in the East In the civil law tradition, the first codification o f Roman law focused not only in

criminal law but in civil law

- Second, The laws in Ly Dynasty contained so much iníluenced o f Chinese law There were many similarities in the provision of punishment between Ly laws and Chinese law at that time

- Third, there was the existence o f certain Vietnamese indigenous social and

legal concept and practices, these particular concept relatives to the areas of agricultural life (statute o f limitation concerning land ownership, administration, population registration)48 The Ly laws were the ameliorative iníluence of Buddhism on both substance o f criminal law and the penal administration According to Vietnamese historian, Phan Huy Chu (1782-1840) laws in the Ly Dynasty were too lenient It was not cmel as Chinese law

b) The Tran Dynasty (1125-1140).

According to Le Qui Don (1726-1784), the Tran laws and institutions were most complete at its zenith o f power At least two codes were promulgated, one

by the Dynastic founder,Tran Thai Tong in 1230 and the other by Emperor Tran

Du Tong in 1341 Like the previous the Dynasty, Tran Dynasty had paid attention to compilation o f Law most relative criminal law The fưst compilation

o f Tran law made by Tran Thai Tong, it was called Books o f General statutes of the National Dynasty which consisted twenty volumes The second Compilation, which consisted o f Great institution of the Dynasty ( Hoang Trieu Dai Dien), and Book of punishment All these laws were promulgated bu Emperor Tran Du Tong The Tran criminal law was very serve Moere ever ,the Tran generally adhered to the principle o f legality, enforcing thier laws in a consistant manner in all circumstances, even against the imperial clan member

47 The Dynastic íòunder was a adopted son o f the Monk who name Kanh van,

48 Nguyen Ngoe Huy, Ta Van Tai,Tran Van Liem,supra note 35, p.9.

The laws under Tran Dynasty appeared the indigenous Vietnamese features which vvere evident in the rules and practices pertaining to the political and social organization o f the country

c) The Le Dynasty (1128-1788).

The Vietnamese advance to the South coincided with new challenges in the north In 1407 Vietnam was again conquered by Chinese troops For two decades, the Ming dynasty attempted to reintegrate Vietnam into the empire, but

in 1428, resistance íòrces under rebel leader Le Loi dealt the Chinese decisive defeat and restored Vietnamese independent Le Loi mounted the throne as íìrst emperor o f The Le dynasty, which ruled Viet Nam for almost three hundred and sixty years( 1428-1788), represented the culmination o f a long process of political, social , and legal development from the beginning o f the country’s history

The most important legal document, in woodblock prink, is o f course the Quoc trieu hình luaí ( the Penal course o f the national Dynasty) later also called Le Trieu Hừìh ỈMat or Le Code (íhe penal course o f the Le Dynasty). The Le Code was promulgated by Hong Duc Emperor in 1843 To day, many Vietnamese people would like to call Le Code as Hong Duc Code

It is widely accepted that,The Le Code is the monument o f the Vietnamese legal tradition to the western world The Le Code is the very proíòund Symbol of the old codiíìcation in Vietnamese legal system at feudal time.While in the Europe

of late fifteenth century, Ferdinnand and Isabella o f spain, Henry VII o f England and Charles II o f Francé were just about to complete the transíòrmation o f their međieval states into modern one The Vietnamese already achieved political and territorial that stage o f development o f the polity under the two previous of

L y (l110-1225) and Tran (1225-1400) and the later consolidate rather this modern- State and rather modern legal system under the Le dynasty(l428-1788)49

We can fínd many Vietnamese indigenous concepts o f law in Le Code This Code contained both provision o f civil law and criminal law The structure of Le Code was escaped the form of the codiíication o f Chinese law The originality of the Le Code demonstrate that Vietnam was not always simple a cultural satellite

o f China AI through we can fìnd some small features in Le Code Which were borrowed from T ’ang Code and to much lesser degree the Ming Code, but more importantly it incorporated many particularly Vietnamese provision, reílecting the efforts o f the law makers to maintain Vietnamese popular custom and practices and to resist blind borrovving from China.50

Unlike the traditional Chinese law, Le Code contained many articles concerning private law, the protection o f private interests, especially the general principles o f law goveming the contract The human rights of women were protected by provisions concerning the equal property rights o f Vietnamese women in the matrimonial regime.

The Le Dynasty made substantial contribution to the East Asian legal tradition First, by adopting many provisions o f public law appropriate to a modern nation State, and second by bringing in to life concepts and rules which may be seem as íiinctionally equivalent to those o f modern Western civil law The Le Dynasty contribution to Vietnamese civil law in particular has shown that the Chinese

counterparts tow ard providing State regulation and protection o f private interests

49 Nguyen Ngoe Huy, Ta Van Tai,Tran Van Liem, supra note 35, p.2.

50 ỉbid , p.54.

The Le Code lasted its iníluence even to the time o f French colonization in Vietnam In the Southern provinces (Nam Ky), Jurists in both French Courts and Vietnamese court had to refer to Nguyen Code, Le code for the subject matter not cover by the 1883 abbreviated Civil Code51

á) The Nguyen Dynasty ( 1802-1945)

The Nguyen was the last Dynasty of Vietnamese feudalism Gia long Emperor, acceded to the throne in 1802, started the Nguyen Dynasty This dynasty lasted until the abdication o f Bao Dai Emperor in 1945 But as the matter of fact, the Nguyen Dynasty had already lost power completely in 1884 in Southern provinces ( Nam Ky) With the arrival o f the French, the Vietnamese feudal laws during Nguyen Dynasty had undergone iníluenced so much by French colonization

The last codification o f Vietnamese feudal law, was promulgated by Nguyen Emperor in 1811, was call Gia Long code or ( Hoang Viet Luat Le). Un like the

Le Code o f the previous Dynasty, Gia Long Code embodied its self the counterpart o f the Ch’ing Code, showed backward development o f Vietnamese feudal To day, Vietnamese historians still try to explain why Nguyen Dynasty, especially Gia long Emperor had no inheritance and consultation to Le Code The Gia long Code did not have provisions on a number o f subjects, such as inheritance and the matrimonial estate We can not find Vietnamese legal nuance

in Gia Long Code

Suffering the imposition of colonial policy by French, the Vietnamese legal system under the Nguyen Dynasty was split into three52 and the applicable legislation became the mosaic o f French iníluenced laws and traditional code provision The importation o f western civilization in to Vietnam created great impact on Vietnamese legal system In criminal law, the new criminal o f French type were promulgated especially beginning with the reign DongKanh Emperor( 1886-1888) to supplemetĩt the traditional code provisions, culminating

in the 1921 Modified criminal Code( Code penal modiíìe) for Nam Ky53 In Civil law, the French promulgated, the 1883 Abbreviated Civil Code for Nam

Ky -Southern Provinces, the 193 lCivil Code for Tokin (Bac Ky- Nothern provices), the 1936 Civil Code for Annam ( Trung Ky- Central part o f Viet Nam)

It is very complicate to describe in detail way the situation o f Vietnamese legal system during the French Domination in Vietnam This traced the starting iníluences of Civil law system on Vietnamese legal system

51 Ibid ,,p84-85.

52 The territory o f Viet Nam was divided into three Kys.

53 Nguyen Ngoe Huy, Ta Van Tai,Tran VanLiem, supra note 35, p.84.

3 Periods of the iníluence of civil law system in Vietnam

3.1 Introduction

The influence o f civil law system on Vietnamese legal system traced back to the period of French colony up to now But there is no continuity in the inAuence of civil law in Vietnam From the historical point o f view, I would like to illustrate thc developmcnt o f Vietnamese legal system in two mains periods: the period of French colony and post-colonial time, the íòrmer period from 1862 to 1945 (the turning point in the Vietnamese history), the latter period from 1945 to renovation time I want to show the iníluence o f civil law through each period to identify the degree o f the iníluence of civil law on Vietnamese legal system from the past up to now

3.2.The period of French colony (1862-1945)

The process o f colonization in Vietnam was applied By French to Vietnam, based on the policy o f ( politique d'assimilation). By many tactical ways of the methods o f French administration, Vietnam was partitioned into three regions : Tonkin in the North - Bac Ky, Anna in the Centre - Trung Ky, and Cochin china

in the South- Nam Ky. The territory o f Vietnam presented a rather complicated political structure While the Cochin China was French colony, the other two Kys

were protectorates, together íòrming the Empire of Annam under the authority of the Emperor court o f Hue However in the interior- various o f localities, namely the town of Hanoi, Haiphong, Danang, were French concessions During the time o f Prench colonization in Vietnam, French sent not only troops, but brought their laws, in many case also their court organization and their personnel to Vietnam Vietnamese feudalism had been deeply altered; the Vietnamese Emperor gradually lost his power by the control o f French colony The importing

o f western culture into Vietnam made the changes o f traditional feudal ideology

54 ( is called peace treaty )

55 (is called Patenotre treaty ),

The appearance of modern Vietnamese script 56 made great impact on Vietnamese literary culture Further more French was introduced in Vietnam that help Vietnamese intelỉectual aware the idea o f the scepticism o f Woltaire, the democratic idea o f Rausseau and the doctrine of separạtion of Montesquies Vietnamese constitutional ideology was developed in the time of French domination.

The introduction o f Western civilization and the demands o f the French colonial economy did indeed undermine the traditional order, as Minh Mang had predicted it would the class structure and the educational systems were drastically altered The upheaval and instability created by the attempts to transíòrm a traditional society, coupled with the resentment and hostility which resulted from the loss of sovereignty provoked a continuing resistance to the French rule Before the appearance of French Colony, the Vietnamese legal culture was mere feudal law with the characteristic as described in the Chapter 2 But for nearly eighty years under French Colony, Vietnamese legal culture had been changed into the new form with the iníluences of western legal culture

3.2.2 French laws were imported in Vietnam by imposition

To understand how French imposed French law on Vietnamese legal system, I think the best way is looking upon the administration o f French Colony on the whole territory o f Vietnam From 1862 to 1945 the territory o f Vietnam was divided into three regions or three kys with diíĩerent regimes: Cochin China- The Southern Ky ; Tokin - the Northern Ky; Annam- the Central Ky The imposition

of French law on Three Kys was varied from the Southern Ky to othersỌOne result is that each Ky has its own code, and there was no single comprehensive Vietnamese civil, criminal, procedural, or other code in the time of French colony)

First, in the Southern Ky its Capital Saigon_which had been under French domination for some twenty years longer than Northern Ky and the Central Ky, became in 1862 a colony under French law, while Northern Ky and Central Ky remained as protectorates, each under the nominal reign o f its emperor.The

Southern Ky was administered directly by a French-staffed civil Service tinder a governor and a colonial council The colonial council was composed half of Frenchmen and half o f Vietnamese, the latter elected on a limited suíĩrage and the former by the French civil servants working in the colony As a colony,

Southern Ky sent its own delegate to the Chamber of Deputies in Paris In 1879, attempts to govern through a controlled Vietnamese mandarinate were abandoned and French administrators were placed at the head o f each province The mandarins had been permitted to apply the Gia Long Code of Nguyen Dynasty as far as they knew it in the absence of printed texts The French administrators applied French law and a French translation of the Gia Long Code, and, when these did not cover the situation, the ancient Hong Duc Code of

Le Dynasty When French administrators were substituted for the Vietnamese

56 Alexandre de Rhodes, the missionary who ưavelled through out Asia in 17 th century An accomplished linguist, he improvised Poragese in to Quoc ngu, still in use today, to transcribe the Vietnamese language in Roman letters instead o f Chinese ideolographs.

mandarins, the Penal Code of Prance became the basis for civilian law until the Modifíed Criminal Code was published in 1912 Many statutes enacted in Frcmce were interpreted as applying auỉomatically to Cochin China, as to all other fuỉì colonies. The Civil Code of France was followed by the French courts

in Southern Ky, local modiíìcations having been published as early as the Precis

Third, in the Northern Ky the Capital at Hanoi, as a protectorate made few concessions to the appearance o f native autonomy The important executive powers were vested in a French Resident-Superior at Hanoi who governed in the name of the emperor French resident officers in the larger towns directly controlled the local administration They attempted to work through the Vietnamese mandarinate and to preserve the institution for administrative purposes, but on terms consistent with French needs The traditional feudal judicial system was retained and applied using the mandarinate as a front By degrees Northern Ky was subjected to modiíied French codes: a Code of Criminal Procedure in 1917, a Penal Code in 1921, and a Civil Code in 1931

3.2.3 The evaluation of the reception of French law

It would be diíĩìcult to give an overvievv picture through the substantive law, and the detail required would be deterrent to all but the enthusiastic

From the legal historical point of view, the imposition o f French law on Vietnamese legal system made great impact on the old Vietnamese legal system,

in other word, we can say this was the process o f involuntary reception o f French law this caused the iníluence o f civil law tradition on Vietnamese legal system Unlike Vietnam, Japan have decided to receive íòreign laws from 1860s ( Merij Dynasty) in voluntary way59

57 The Vietnamese Legal 02.htm

svstem.http://www.armv.mil/cmh-pq/books/vietnam/law-war/law-'Klbid

59 Mikazuki Akira, The legal structure of Japanese law after being modernized since 1868, Comparision of law of contract between Viet nam and Japan, Vietnam Ministry of Justice 2000,p9( Vietnamese version).

The modern characteristic o f civil law tradition was received in Vieínamese sysyem.

French legal tradition based on the rigid separation between private and criminal law, and public or administrative law on the other; these form in reality two discrete system of law, each with their own courts, their own unique legal concepts and their own commentator and learned authors, French law have iníluenced a large number countries where their Codes and codiíìcatory style have served as models of law - making and legal philosophy These characteristic of French law was imported in Vietnam

Beíòre being inữuenced of French law, there was vague distinction between the area of civil law and criminal law in Vietnamese feudal law The old Vietnamese law, such as Le Code and GiaLong Code contained mixed provisions about civil law and criminal law It was uncivilized that sometimes a peasant, who violated a contract or broken family law, had been applied punishment in criminal law Owe to French colony brought the modern civil law into Vietnam, the whole structure o f Vietnamese feudal law had changed with the clear distinction between civil law and criminal law French introduced French civil code in three regions of Vietnam, in the Southern Ky, the íirst civil code was 1883 Abbreviated Civil Code (as the Precis o f 1883) which was the counterpart of Prench civil code 1804,60 The French civil cođe is composed of three books or divisions, following Gaius’ institutes and commences with Preliminary Title, which really seems to introduce the purpose of the code namely to implement the ‘ publication’ effect and the application of the laws in general ‘ Book one is headed of persons, Book two ‘ o f Property and diíĩerent kinds of ownership’ and Book Three ‘ O f the diíĩerent ways o f Acquiring Property Each Book is divided into Title such as Enjoyment and Loss of civil rights, Marriage, Divorce, Domicile and Adoption Those are again divided into chapter and in several instances these chapter are divided into section61 In the Northern Ky, the Civil code of 1931, which was draữed by French Resident- Superior in Hanoi, Morche, was also a copy o f French civil code but litter Vietnamese customary law was put in this code In the Central Ky, civil code of

1936 was similar to Civil code of 1931, which is composed of Preliminary section and Four Books The structure of these two Civil code is similar to the structure of French civil code of 1804 As the result o f importing French civil law on Vietnamese legal system, the concept of civil law conduct was íĩrstly identiíìed in Vietnamese law The principle of, respect for personal rights,

equality, íreedom o f contract e c t all were admitted in western society, was

gradually rooted in Vietnamese society For me, I think the French civil law iníluences had created foundation for Vietnamese legal Science of civil law field

In the time o f post- French colony, Vietnamese civil law inherited so many concepts and principle of French Civil law So that it is not surprise when Vietnamese scholars evaluated that today Vietnamese civil law has relation to the concept and the principles of Ro ma law

- Commercial law appeared in Vietnam as the result o f imposing French commercial law during the time o f French colony In the pre-colonial time, business activities were not developed in Vietnam From the 17 century, Chinese

60See supra nore 56,

61 Peter de Cruz, Comparative in a changing word, Second edition, (London: Cavendish

Publishing, 1 999), p 60.