Khóa luận tốt nghiệp: Ensuring the right to legal aid of abused women in Vietnam today

VIETNAMNATIONALUNIVERSITY,HANOI

NGUYEN LUU HOANG NGHIA

Ensuring the right to legal aid of abused women in Vietnam today

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HANOI, (2022)

LAW DEPARTMENT -

NGUYEN LUU HOANG NGHIA

Ensuring the right to legal aid of abused women in Vietnam today

UNIVERSITY GRADUATION COURSE FACULTY OF LAW

Training system: High QualityCourse: QH-2018-L

INSTRUCTOR:

Assoc Dr Nguyen Hoang Anh

HANOI, 2022

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GUARANTEE

I hereby declare that this is my own research work, that the conclusions and data in the thesis are truthful and reliable./

Graduation thesis author

(Sign and write full name)

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TABLE OF CONTENTS

1 Reason for choosing the topic 5

2 Research about situation of the topic 7

3 Research purpose and tasks 8

4 Research object, research scope of the Thesis 8

5 The research methods used to conduct the thesis 9

6 The scientific significance of the Thesis 9

7 Thesis layout 9

CONTENT 11 Chapter 1: Theoretical and legal basis for ensuring the right to legal aid for abused women in Vietnam 11

1.1 The concept of ensuring the right to legal aid for abused women 11

1.2 Law on ensuring the right to legal aid for abused women in Vietnam 15

CONCLUSION CHAPTER 1 33

CHAPTER 2: SITUATION OF GUARANTEEING THE LIGHT OF AGREEMENT OF WOMEN IN VIOLATION IN VIETNAM TODAY AND SOLUTIONS TO GUARANTEE THE TRY OF AGREEMENT OF WOMEN IN VIOLATION IN VIETNAM TODAY 34

2.1 Current status of women experiencing violence in Vietnam 34

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2.2 Some solutions to ensure the right to legal aid of abused women in Vietnam today 51 CHAPTER 2 CONCLUSION 60

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PREAMBLE

1 Reason for choosing the topic

The right to legal aid, although not specifically recognized in the Constitution, is an important right, especially in the context that Vietnam is building a socialist rule of law state Legal aid is a legitimate request of an individual or a certain group of people to have access to a free legal service system based on the provisions of the law

Judicial practice and human rights assurance in the world have shown that legal aid activities are of special importance in ensuring and realizing human and citizen rights In Vietnam, legal aid is even more necessary in order to provide appropriate legal services to women in difficult circumstances, especially those who have experienced both physical and mental abuse and other policy beneficiaries so that they can best exercise their rights and obligations in the socialist-oriented market economy

Legal aid is one of the areas of interest to the Party, State and society More than a decade has passed, in response to the new development requirements of the country, the implementation of the 2013 Constitution, many important new laws were promulgated by the National Assembly, many reform policies were passed These include strengthening law and judicial reform in line with the Resolution of the 12th National Congress of the Party and requiring proactive and active international integration and legal aid activities has revealed a number of limitations and inadequacies that need to be studied and modified On June 20, 2017, the XIV National Assembly approved the Law on Legal Aid No 11/2017/QH14 with 100% approval of the National Assembly deputies present, creating a legal basis for sustainable development legal aid work to a new height, both in line with the reality of the country's development requirements and integration with regional and international development trends It can be seen that, basically, the system of

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legal documents regulating legal aid of Vietnam has internalized relevant commitments in international treaties to which Vietnam is a member, such as: : International Convention on Economy, Society and Culture (CESCR); International Covenant on Civil and Political Rights (CCPR); Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); International Convention on the Elimination of All Forms of Racial Discrimination (CERD); Convention on the Rights of the Child (CRC); Convention on the Rights of Persons with Disabilities (CRPD)

At the same time, the legal system on legal aid is becoming more and more complete Currently, there are about 20 legal documents in effect regulating this field; including 01 Law, 01 Decree, 01 Decision of the Prime Minister, 08 Joint Circulars, 08 Circulars of the Ministry of Justice These legal documents have created a synchronous and unified legal basis, quite comprehensively adjusting legal aid work from legal aid recipients to standard conditions, rights and obligations of legal aid recipients legal aid providers and organizations; responsibilities and coordination mechanism of relevant agencies and organizations; financial mechanism; organizational model, state management and social participation

However, due to a number of reasons, abused women in Vietnam still face many inadequacies and difficulties not only mentally but also financially, so they do not seem to be fully aware of their right to help legal aid, do not know where to contact for legal aid, do not know how to use the right to legal aid In addition, the quality of some legal aid activities is still not high, so it has not spread widely in the community, ensuring the right to legal aid of competent agencies and people with Violence against women has not been really focused and taken seriously Due to fear, traditional beliefs and limited understanding of the law, many women who have suffered violence still do not have a voice

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Stemming from the above reasons, I chose the topic: "Ensuring the right to

legal aid of abused women in Vietnam today" as the graduation thesis of a

high-quality jurisprudence program according to Circular 23

2 Research about situation of the topic

In recent years, there have been many topics, research works, a number of theses, doctoral and master's theses related to the legal provisions on legal aid such as:

Doctoral theses, Master's Thesis: Tran Thi Chinh (2019), "Ensuring the right to legal aid of ethnic minorities through the practical operation of the State Legal Aid Center of Lao Cai”, “Implementing the law on legal aid for the poor and policy beneficiaries in Ninh Binh province”: Master thesis of jurisprudence / Doan Thi Ngoc Hai, doctoral thesis of jurisprudence Ta Minh Ly: “ Adjusting the law on legal aid in Vietnam in the context of renovation” Research results of published works, topics, and articles by scientists, educators, and legal experts so far have partly solved both theory and practice, studying the implementation of the law on legal aid in general for a group of people eligible for legal aid in particular, such as the poor, but there is no document mentioning violence against women, is this a problem? overlooked in Vietnam These studies are all based on the Law on Legal Aid 2006, there is one study based on the Law on Legal Aid 2017 and were carried out in many fields, locations, and different subjects, so there are many unique characteristics in terms of natural conditions, socio-economic conditions, traditional culture, etc

For the author to research when the 2017 Law on Legal Aid has been in effect and has been in place for more than a year, affirming that legal aid is an important element in the criminal justice system, is the responsibility of the State for women who have suffered violence and their right to legal aid are

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new and unique To date, there have been no specific studies on ensuring the right to legal aid of abused women

3 Research purpose and tasks

The purpose of the thesis is to research and clarify the guarantee of the right to legal aid of abused women in Vietnam today and the current status of ensuring this right through the activities of Legal Aid Centers, National Institutes of Law and Government country On that basis, the author proposes directions to improve the law, solutions to improve the quality of legal aid activities for abused women, thereby creating favorable conditions for abused women access to free legal aid services in the simplest and most convenient way

For that purpose, the Dissertation aims to deal with specific studies as follows:

- Research to clarify the theoretical and legal bases on the right to legal aid of abused women through the concept, content, characteristics and roles

- Synthesize data from years, clarify the advantages, limitations, difficulties, problems, inadequacies and causes

- On the basis of research results, give and explain the direction of perfecting the law and improving the quality of legal aid activities for ethnic minorities, proposing solutions to improve the quality of the law legal aid activities to ensure the right to legal aid of abused women in Vietnam in the coming time

4 Research object, research scope of the Thesis

Research object: The thesis focuses on the theoretical and legal issues of

legal aid, the right to legal aid of abused women and the current situation in Vietnam

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Research scope: The thesis focuses on researching legal provisions on

legal aid in order to clarify the right to legal aid of abused women

The thesis also researches and evaluates the practice of legal aid in Vietnam today However, for comparison purposes, the author only focuses on researching on the basis of theory and data from 2010 to 2019, which is the period of organizing the implementation of the 2006 Law on Legal Aid and the Law on Legal Aid 2017

5 The research methods used to conduct the thesis

This thesis is made on the basis of the methodology of Leninism and Ho Chi Minh's thoughts on materialistic and historical dialectics

Marxism-The direct research methods are: analytical method, synthesis of legal provisions, and statistics, the thesis also uses a little comparison to clarify the difference but has inheritance, finalize the regulations on legal aid in 2006 and the Law on Legal Aid in 2017

6 The scientific significance of the Thesis

- The thesis helps to clarify the theoretical and legal issues of legal aid, legal aid to abused women, ensuring the right to legal aid of abused women

- The research results of the Thesis can be used as a reference for students

- The recommendations raised in the thesis are of reference value for legal agencies and organizations in the process of perfecting the legal aid legislation in Vietnam

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- Chapter 2: The current situation of ensuring the right to legal aid of abused women in Vietnam and solutions to ensure the right to legal aid of abused women in Vietnam today

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CONTENT

Chapter 1: Theoretical and legal basis for ensuring the right to legal aid for abused women in Vietnam

1.1 The concept of ensuring the right to legal aid for abused women

1.1.1 General overview of legal aid

In the world, legal aid activities have a history of birth about 500 years ago and originated in England (XV century), Germany and the Netherlands in the mid-nineteenth century, then France The US appeared later in the early twentieth century, in Australia and some countries in the region such as: Singapore, Malaysia, Cambodia, and China, , in each country, the concept of legal aid is also different depending on the political regime and economic conditions of each country

The term "legal aid" has been widely used in the world since the

mid-nineteenth century and published in English as: Legaka aid According to the English-Vietnamese dictionary of author Le Kha Ke, Social Science Publishing

House, 1997, "legal aid" is translated as "legal aid" In addition, in some other documents, "legal aid" is translated as "legal aid", "legal aid" or "judicial assistance"

Countries around the world organize and conduct legal aid activities in a very rich and diverse manner depending on the socio-economic development conditions of each country There are many models of legal aid available, with differences in the object, scope, method, and cost of aid worldwide That difference comes from each country's concept of legal aid But in general, the concept of legal aid in all countries refers to this activity from the economic, humanitarian and legal perspectives

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From an economic perspective, some countries such as the Federal Republic of Germany consider legal aid to be partially or completely financial help for those who cannot afford the costs of legal advice, representation or defense in court

Under the law of England and Wales, Legal Aid is legal aid to people who cannot afford legal advice, assistance, and representation

Article 2 of Singapore's Legal Representation and Advice Act 1995 also explains that legal aid is helping people who cannot afford legal services

However, in many countries around the world, legal aid recipients still have to pay part of the costs or have to pay the costs if they win the litigation in litigation cases

Although the free calculation can be interpreted differently in each country, legal aid is seen as an aid for those who cannot financially enable them to access legal services Therefore, no matter how it is conceived, legal aid is a humanitarian activity As Australians think, the purpose of legal aid is to help a person have the same circumstances and conditions as other people in accessing the law, that is, to create fairness when accessing the law law The humanity of legal aid is that this activity creates equality and does not exclude anyone in accessing legal services

However, legal aid is not a spontaneous activity In all countries, legal aid is prescribed by law and provided by the State on the basis of the provisions of the law Therefore, legal aid is a legal activity The legality of legal aid also manifests itself in the fact that it is a legal service

Stemming from the nature and form of "Legal aid" activities in the world and the practice of this activity in Vietnam in recent years, the term for legal aid activities is officially regulated as " Legal aid" The term legal aid has both

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shown the nature, content and form of operation of free legal services in Vietnam

1.1.2 The concept of ensuring the right to legal aid for abused women

In modern times, the legal system has been analyzed in detail by the leading American political philosopher J Rawls mentioned in his book A

Theory of Legal, according to which: “legal is what the first characteristic of

social, as well as legal, institutions is that of ideology

J Rawls considers the law to be justice as fairness, the belief of the law, the nucleus of morality, and the prerequisite condition of civil society… Therefore, according to him, “ in a society, equality in civil rights and liberties for all is immutable; Legally guaranteed rights cannot be negotiated in terms of politics or calculations of social interest.” In the Black Law Dictionary, “legal”

has been defined as “fair and reasonable, with three basic concepts: emphasis

on personal importance, a requirement that individuals be treated in an

In Vietnam, the legal concept has been mentioned in some recent

research works by some authors such as: Nguyen Dang Dung (“Vietnamese

courts in the context of building a rule of law state”); Nguyen Van Hien (“Discussing the legal system”), Institute of Legal Science, Ministry of Justice

(“Relationship between law and legality - Theory and practice”), Vu Cong Giao (“Legal aid and principles of the rule of law”)…Besides, in terms of

language, legal concepts have also appeared in some dictionaries, for example:

“Legal is right, fair, consistent with contemporary law, without bias”

Every regime considers the court to be a symbol of the law, the legal authority

of that regime Or legal is “fairness or justice, rightness, rightness Often used in legal life and especially in judicial activities”; “Legal is the correct

1Pháp lý là gì ? Khái niệm pháp lý được hiểu như thế nào cho đúng ? (luatminhkhue.vn)

So in general, what is the right to legal aid of abused women, to interpret the meaning of the term "right to legal aid", most researchers give two views: the right to legal aid in the broad and narrow sense In a narrow sense, the right to legal aid is only associated with court proceedings This may not be comprehensive for the right to legal aid of the group of women experiencing domestic violence, because in fact, for vulnerable groups such as the group of women experiencing domestic violence along with many other victims of domestic violence Cultural barriers, and court operations do not create trust and confidence for this group of people, for example, when victims go to the police to report their cases, there is a common situation of assessment the subjectivity of the police and blamed everything on the woman: "You must be complaining, talking too much, but also jealous, so he beat you, right?"

In a broad sense, the right to legal aid is understood as the ability to seek compensation or redress for injustices or harms suffered by a group of women experiencing domestic violence through the justice system and the legal system system to support groups of women experiencing domestic violence such as the Women's Union, People's Committees, neighborhood groups, and non-governmental organizations working to support groups of women experiencing violence The injustice/damage caused by a special object, that is the husband, commits violent acts, including: mental violence and physical violence, causing serious harm to the honor, dignity, and health of women

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1.2 Law on ensuring the right to legal aid for abused women in Vietnam

1.2.1 The legal concept of ensuring the right to legal aid to abused women

1.2.1.1 Legal concept of legal aid

Legal aid was officially regulated for the first time in Vietnam under the Prime Minister's Decision No 734/TTG dated September 6, 1997, on the establishment of legal aid organizations for the poor and the underprivileged These policies and activities are now uniformly regulated in the Law on Legal

Aid The Law on Legal Aid 2006 introduces the concept of legal aid: “Legal aid means the provision of free legal services to legal aid recipients in accordance with this Law, helping legal aid recipients protect their legitimate rights and interests, and improve understanding know the law, sense of respect and observance of the law; contribute to the dissemination and education of the law, the protection of justice, the assurance of social justice, the prevention and limitation of disputes and violations of the law.”

On the basis of inheriting the provisions of the Law on Legal Aid in 2006, the Law on Legal Aid in 2017 has introduced a more concise concept of legal aid: "The provision of free legal services to legal aid beneficiaries in accordance with this Law contributes to ensuring human rights and citizens' rights in accessing justice and equality before the law.".The guarantee of the right to legal aid is also stated in this Code, specifically Clause 2, Article 4:

“The State has policies to ensure the right to legal aid suitable to economic conditions”.

socio-1.2.1.2 Legal concepts on ensuring legal aid rights for abused women

According to Article 7 of the Law on Legal Aid in 2017, legal aid

beneficiaries include: “People with meritorious services to the revolution; people from poor households; children (this provision is even more extensive than that specified at point d, Article 37, point b, clause 2, Article 40 of the

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CRC); ethnic minorities residing in areas with extremely difficult economic conditions; the accused is from full 16 years old to under 18 years old; the accused belongs to near-poor households; people with financial difficulties (people from near-poor households or people receiving monthly social allowances) in one of the following cases: biological fathers, natural mothers, spouses, children of martyrs and other people meritorious care when the martyrs were young; people infected with Agent Orange; Elderly; People with disabilities; persons aged between full 16 years old and under 18 years old are victims in criminal cases; victims of domestic violence cases; victims of human trafficking in accordance with the Law on Prevention and Combat of Human Trafficking; HIV-infected people.”2

socio-Thus, more advanced than the 2006 Law on Legal Aid, the current Law on Legal Aid 2017 stipulates two groups of independent legal aid beneficiaries closely related to victims of violence on the basis of (Persons with financial difficulties are victims of domestic violence; victims of human trafficking in accordance with the Law on Prevention and Control of Human Trafficking) In addition, if a victim of gender-based violence falls into one of the remaining 12 groups of legal aid beneficiaries, they are still entitled to legal aid rights

We can see that, although there is no specific law that defines the concept of guaranteeing the right to legal aid for abused women In fact, there are very few documents specifying the concept of guaranteeing human rights, so the concept of ensuring the right to legal aid is also an issue that has not been focused on research and clarification

However, it can be understood that ensuring the right to legal aid is the fact that the subjects, first of all, the State, according to the provisions of law, must perform the obligations and responsibilities in order to have the right to receive legal aid from the State individuals and persons eligible for legal aid

2 Article 7 of The Law on Legal Aid 2017

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under the provisions of the law are organized to provide it, and at the same time these subjects must have the responsibility to create conditions for them to use their right to legal aid

All state agencies are involved in ensuring this right, especially procedure-conducting agencies, temporary camps, temporary detention houses, and those competent to conduct proceedings Among the subjects providing legal aid, legal aid centers of the state, provinces and centrally-run cities are the most specialized entities for this activity

Therefore, we see that it is really necessary to ensure the right to legal aid of the group of women who suffer from domestic violence, stemming from the current situation of protecting this group of rights The victims are mostly women, who find it very difficult to get legal services and protections In addition, the patriarchal culture has forced women to accept, endure and keep silent when experiencing domestic violence, while the right to legal aid of women experiencing domestic violence is considered is a legitimate and essential right of women 3

In addition, the regulation that "discrimination against legal aid beneficiaries" is one of the prohibited acts (Point a, Clause 1, Article 6 of the

Law on Legal Aid 20174), also shows that legal aid activities are prohibited legal aid ensures that legal aid recipients have equal rights to receive legal aid services without discrimination whether they are victims of gender-based violence or are men or women

1.2.2 Legal content on ensuring legal aid rights for abused women

In order to ensure equal participation of legal aid recipients in the exercise of rights and obligations and to support the implementation of

3Bảo đảm quyền trợ giúp pháp lý của nhóm phụ nữ bị bạo lực gia đình ở Việt Nam hiện nay (lyluanchinhtri.vn)

4 Article 6 of the Law on Legal Aid 2017

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protection and support measures for legal aid recipients who are mothers and girls, victims of domestic violence, victims of trafficking, victims of sexual abuse, Circular No 11/2014/TT-BTP dated April 17, 2013, of the Minister of Justice on regulations on ensuring equality Gender equality in legal aid (currently still in effect) has prescribed a number of measures such as

"facilitating legal aid beneficiaries to access and exercise their rights and obligations as prescribed by law5" without any gender discrimination; no pressurize or use of legal aid beneficiaries' gender weaknesses to force them to immediately decide on the direction of the case; when detecting that the legal aid recipient is a victim of domestic violence, a victim of trafficking, a victim of sexual abuse, organizes providing legal aid to provide information and coordinates with aid establishments, support victims to take measures to support, protect and assist according to the provisions of law; In the course of providing legal aid to the above subjects, if detecting signs of law violation, the legal aid-providing organization shall transfer the case to a competent agency for handling or request the legal aid-providing agency Police support and ensure the safety of victims…”

Victims of gender-based violence are legal aid recipients who receive legal aid in the form of participating in legal proceedings, representation outside of proceedings, and counseling for the defense and protection of their legitimate rights and interests me Particularly in the field of legal aid participation, agencies competent to conduct proceedings and agencies competent to execute custody and temporary detention are responsible for coordinating with legal aid-providing organizations to ensure the right to legal aid get legal aid for them In particular, with clearly defining the responsibilities of the above agencies in explaining the right to legal aid to the subjects; Notifying and informing the State Legal Aid Center for timely access

5 Circular No 11/2014/TT-BTP dated April 17, 2013, of the Minister of Justice on regulations on ensuring equality Gender equality in legal aid

Third, criminal regulations and criminal procedures: Penal Code 2015 and the Law amending and supplementing a number of articles of the Penal Code 2017 (hereinafter referred to as the 2015 Penal Code) There are many laws regulating the deterrence and punishment of acts of gender-based violence with all elements of a crime, and the protection of victims of gender-based violence against these acts The 2015 Penal Code stipulates: Crimes committed against persons under 16 years of age, pregnant women or 17 persons aged full 70 years or older; people who are in a defenseless situation, people with severe or particularly severe disabilities, people with limited cognitive abilities or people who depend on them physically, mentally, at work or in other ways… are circumstances aggravating criminal liability (Article 52); crimes of intentionally causing injury or causing harm to the health of others with corresponding penalty frames applicable to the degree of injury that the violent act causes to the victim (From Articles 134 to Article 139) ; crime of torturing

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others (Article 140); other crimes related to combating sexual violence against women and children (From Articles 141 to Article 147), especially the 2015 Penal Code adds the crime of using people under the age of 16 for pornographic purposes ( Article 147); crimes of trading, exchanging, and appropriating people (Articles 150 to 153); crime of humiliating others, slander (Article 155, Article 156); crimes of infringing upon the marriage and family regime, including crimes stemming from violent elements, capable of constituting a crime can be handled according to the corresponding crimes (Article 181, Article 182, Article 185) In particular, the Code stipulates that “crimes of infringing on gender equality rights” (Article 165) have an expanded nature compared to Article 130 “Crimes of infringing upon women's equal rights” (Criminal Procedure Code 1999)

In addition, the Criminal Procedure Code 2015 also stipulates that victims in cases have their privacy protected through stipulating the right of

whistleblowers, reporting criminals, and petitioning to prosecute “To request competent agencies to keep secret denunciations and reports on crimes, petitions for prosecution, and protection of life, health, honor, dignity, reputation, property, rights, and interests their other legitimate, their loved ones when threatened ”;6 regulations when conducting a body examination or examining a person's body to find important evidence for a case must be conducted by a person of the same sex and witnessed by a person of the same sex, in case of necessity, a doctor will be present (Article 194 and Article 203) Applying the above provisions, victims of gender-based violence have grounds to be protected in criminal cases

The 2015 Criminal Procedure Code also stipulates that the procedure-conducting agency is responsible for explaining to the victim eligible for legal aid about the right to receive legal aid, if they request legal

6 Article 56, Criminal Procedure Law 2015

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aid, then must notify the State Legal Aid Center to appoint a person to provide legal aid for them (Article 71); Legal assistants and lawyers (including lawyers contracted to provide legal aid with the State Legal Aid Center, lawyers of organizations participating in legal aid) are allowed to participate as legal assistants defender of the legitimate rights and interests of the victim (Article 84) These are new regulations that guarantee the right to legal aid of victims who are subject to legal aid

Fourth, regulations on civil and civil proceedings: The 2015 Civil Code has many provisions related to combating acts of violence, including gender-based violence: (1) Regulations on civil principles such as the principle of equality in civil relations, regardless of gender (Article 5); principles of respecting and protecting civil rights, specifically when the subject's civil rights are infringed (including by acts of violence), the subject has the right to protect himself or to request the agency, competent organizations to recognize their civil rights, to force the cessation of violations, to apologize, to make public corrections, to perform civil obligations, to compel compensation for damage (Article 9); the principle that no one may use force or threaten to use force when participating in civil relations or settling civil disputes (Article 12); (2) Regulates the personal and property rights of individuals, prohibits infringement of these rights, including the use of force, and where these rights are violated, the right holder may choose to solutions to protect their rights (Chapter III); (3) Regulations on transactions are invalid in case they are deceived or threatened and the participants in such transactions have the right to request the Court to declare the transaction invalid 132 and Article 137); (4) Regulations on limitation of civil act capacity stemming from violent acts of drug or other stimulant addicts leading to the destruction of family property to protect the property of the person who has related (Article 23).7

7 The 2015 Civil Code

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At the same time, the 2015 Civil Procedure Code stipulates that the judge is responsible for explaining and guiding the involved parties so that they can exercise their right to request legal aid according to the provisions of the law on legal aid Clause 6, Article 48)8 This is a provision ensuring the right to legal aid for litigants who are subject to legal aid in civil cases

1.2.3 Legal features of ensuring legal aid rights for abused women

1.2.3.1 The following are the main features of legal aid legislation in Vietnam:

First, the subject provides legal aid

Subjects providing legal aid are State legal aid organizations and practicing organizations, legal consulting organizations of socio-political, socio-political professional organizations Thus, legal aid activities are a type of activity that is both state and social in nature

law-Persons providing legal aid under the Law on Legal Aid 2006 are legal assistants, collaborators of the State Legal Aid Center, lawyers and legal consultants of law-practicing organizations and organizations legal consulting organizations of socio-political organizations, professional socio-political organizations

Second, the subject of legal aid

The beneficiaries of free legal aid are poor households; people with meritorious services to the revolution; ethnic minorities permanently residing in areas with extremely difficult socio-economic conditions; lonely old people,

8 The 2015 Civil Procedure Code

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disabled people, people infected with HIV, infected with toxic chemicals, helpless children

Third, the area of legal aid

Legal aid activities are carried out for all cases related to the legitimate rights and interests of legal aid recipients in most legal fields, except for cases related to legal aid recipients business and commerce

Fourth, the form of legal aid

Forms of legal aid implementation include: legal advice, participation in proceedings, representation outside the proceedings, conciliation and guidance on administrative procedures and complaints

Finally, it's free for people with legal aid

Legal aid recipients do not have to pay any fees or remuneration of any kind Funding for legal aid activities shall be provided by the State budget and by grants from domestic and foreign organizations and individuals

The purpose of legal aid activities is to help legal aid recipients protect their legitimate rights and interests, improve their understanding of the law, their sense of respect and observance of the law; contribute to protecting justice, ensuring social justice, preventing and limiting disputes and law violations, contributing to ensuring that all citizens are equal before the law, contributing to social justice

1.2.3.2 Legal features of ensuring legal aid rights for abused women

Trợ giúp pháp lý cho phụ nữ bị bạo hành trên địa bàn các tỉnh thành tại Việt Nam là hoạt động tư vấn pháp luật, tham gia tố tụng, đại diện ngoài tố tụng cho phụ nữ và trẻ em gái bị bạo lực gia đình Theo quy định của Luật trợ giúp pháp lý, một trong các đối tượng được thụ hưởng quyền trợ giúp pháp lý là nạn nhân trong vụ việc bạo lực gia đình có khó khăn về tài chính, trong đó phần lớn

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nạn nhân là phụ nữ và trẻ em gái Kể từ khi Luật Trợ giúp pháp lý 2017 có hiệu lực, công tác trợ giúp pháp lý cho phụ nữ bạo hành của Trung tâm Trợ giúp pháp lý Nhà nước các tỉnh thành luôn được ưu tiên thực hiện và triển khai sâu rộng đến cơ sở

Họ là điểm tựa vững chắc cho phụ nữ bị bạo hành, họ là đối tượng mà trợ giúp pháp lý hướng đến, điều này sẽ giúp cho phụ nữ bị bạo hành có được cảm giác quan tâm, hỗ trợ của nhà nước

1.2.4 The role and influencing factors of the law on ensuring legal aid rights for women who have suffered violence in Vietnam today

In recent years, although our State has had many investment policies, giving priority to women who have suffered from violence, in general, their lives are still difficult Therefore, besides policies on economy, culture, society, education, health, etc., there is also a policy on legal aid for women who have been abused The content of the right to legal aid of abused women is also included in the content of human rights to be granted legal aid in general, but this is a vulnerable group that suffers many losses, so women who have suffered violence need to have legal rights rights are recognized, respected, protected and enforced by international and national laws Our Party and State always pay attention to the rights of abused women In the judicial field, abused women are fully recognized by law and their human rights and citizens' rights are publicly recognized In fact, abused women face a lot of difficulties in exercising their human rights and citizens' rights, including the right to legal aid, especially in the judicial field, and accessing justice from specific characteristics Women's victims of violence, economic, educational, socio-cultural where they live, local judicial activities are the factors that affect, are barriers and limitations to ensuring women's right to legal aid abused women

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Ensuring the right to legal aid of abused women is of particular importance because legal aid is a policy to ensure human rights and citizens' rights and is a part of the overall protection policies

The exercise of the right to legal aid should be revolved around the following three basic axes, and at the same time are the elements that ensure the right to legal aid is exercised in real life

1.2.4.1 The legal system of rights and obligations

The system of rights and obligations or the system of legal provisions on the rights and obligations of individuals and legal entities in social activities is the first guarantee and the basis of other factors

The issue of legal aid, in both broad and narrow interpretations, is only raised when there is a violation by an individual/legal entity that affects and infringes upon the rights and interests of another individual/legal entity It may be civil rights (signing contracts, inheritance ), political rights (selection, participating in political and social organizations ), economic and commercial rights But only when those legitimate rights and interests are legalized, that is, they are recognized in specific legal documents promulgated by competent authorities The damage or failure to perform the obligations of an individual/legal entity does not depend on the subjective will of the individual Therefore, the system of rights and obligations is the first foundation for ensuring the right to legal aid, because only when there is a framework of legal rights and obligations can people have a basis to seek legal aid compensate/remedy for the injustice or harm they are experiencing in a legal, safe and fair manner

Attaching the right to legal aid with the basis is the right to a fair trial, the important content is the system of rights and obligations in handling and settling disputes On the part of the subject of the right to legal aid, which is directed to individuals/juridical persons, these are the rights that guarantee

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them to participate in the legal process in a fair and equal manner For different types of subjects, the contents guaranteeing the right to legal aid in criminal proceedings are also different For example, for people held in detention, persons serving prison sentences: must be treated humanely during their detention, including not being tortured, not being treated badly, not being forced into submission; must be guaranteed the minimum living conditions as a human; must be kept in touch with the outside world

One of the differences between the two traditional and modern interpretations regarding the right to legal aid described above is related to the system of rights and obligations of the subjects involved It is the application source or system of regulations related to the rights and obligations of those subjects Traditional assistance is mainly limited to the application of the state's legal provisions, which are recognized in legal documents (Law, Decree, Circular ) Meanwhile, the new way of helping is much more extensive when it also acknowledges the application of informal sources such as customary law or customary law, depending on each specific case and also flexible application between the two national legislation and international standards relevant to the case

Legal customs are those that are recognized by the State to have legal value, become common rules of conduct, and are guaranteed by the State When the State needs to regulate a social relationship, normally the State will issue legal documents However, in many cases, the social relations that the State needs to re-adjust are being regulated by customary norms Therefore, if these customs are consistent with the State's goal of regulating social relations, many states will use the method of recognition, making that custom a mandatory code of conduct generally guaranteed by the State Thus, to be considered customary law, that customary norm itself must be recognized by the State in one of two ways: either through a principled regulation for all cases or through a detailed rule for each specific case

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The recognition of a number of customs has also been recognized in legal documents Article 5 of the 2015 Civil Code stipulates: “If the parties do not reach an agreement and the law does not provide for it, a custom may be applied, but the applied custom must not be contrary to the basic principles of the law civil law prescribed in Article 3 of this Code” In order to concretize the above-mentioned principle, the 2015 Civil Code also provides many detailed regulations on the recognition of custom in certain cases, for example, Clause 1, Article 29 of the 2015 Civil Code Regulations: “Individuals at birth are identified by ethnicity according to the ethnicity of their biological father or mother In case the biological father and mother belong to two different ethnic groups, the ethnicity of the child shall be determined according to the ethnicity of the biological father or natural mother according to the agreement of the biological father or mother; in case there is no agreement, the ethnicity of the child shall be determined according to custom; In case of different customs, the ethnicity of the child is determined according to the custom of the ethnic minority " Thus, the ethnic custom of choosing ethnicity for children when their parents are different in ethnicity is recognized by the state and considered law

However, the above-mentioned formal or informal regulations are only necessary for the exercise of the right to legal aid Here, we want to say whether the content of those regulations brings convenience to the disputing parties in finding a fair solution These are requirements that are comprehensive, fast, flexible, open, and even financially relevant to the parties involved The improvement of the national legal system and the review and selection of unofficial sources of law for application is a challenge that requires the long-term efforts of the state Because the gap between legal provisions and social requirements and requirements always exists, the use of unofficial sources in the sense of filling this gap of state law makes a lot of sense important

1.2.4.2 System of agencies involved in dispute settlement

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In addition to a complete and comprehensive legal system, another pillar to ensure the right to legal aid is exercised is the system of agencies involved in dispute resolution

According to the traditional view of the right to legal aid, the agencies involved in dispute settlement only include formal judicial institutions such as courts, procuracies, and investigating bodies because these are the authority prescribed by law and authorized to engage in judicial activities

However, the modern view of the right to legal aid has broadened the scope of impact, not only stopping at the formal judicial institutions as above, but also recognizing the role of participating in dispute settlement of these institutions other social institutions such as residential agencies, social organizations because mentioned above, the task of all these agencies is to realize equitable solutions to disputes that arise in social life

While recognizing both formal and informal judicial systems, it is clear that the decisive and decisive role in ensuring equitable solutions for the disputing parties cannot be denied Dispute settlement procedures and procedures by way of these agencies can be chosen as the first step, and if using the informal judicial route does not work, the disputing parties will The second option is through the official judicial route

At present, due to the inadequacies of dispute settlement through the formal judicial route as well as the advantages brought by the informal judicial authority, the application of informal mechanisms to resolve disputes is becoming increasingly difficult the more popular, and in many cases, the preferred choice However, the number of disputes resolved through the formal judicial system is still larger than that of the informal justice system Therefore, it can be seen that the important role of the formal justice system in ensuring the right to legal aid is exercised

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In order to maintain an important key role in ensuring the right to legal aid, agencies in the formal justice system need to promote their inherent advantages (professionalism, legal ) and at the same time overcome the disadvantages in the process of operating the dispute settlement mechanism (financially expensive, time-consuming, cumbersome procedures ) To do this, it is necessary not only to have comprehensive reforms in terms of the organizational structure of specific judicial bodies but also to develop and train a competent judicial staff ethics, integrity, fairness, and professionalism

In addition to the formal judicial system, the informal justice system also plays an increasingly important role in facilitating the resolution of legal disputes without going through the courts The agencies of the informal justice system are established in accordance with the law, recognized, and supported by the state

Commonly used system organs include:

- Arbitration: which is commonly used to resolve commercial and related disputes; An arbitral award is usually binding on both parties, even if one of the parties disagrees with the decision

civil Mediation: is used to resolve small disputes within a small geographical area; mediators must be persons of high repute to both parties to the dispute; The form is usually a meeting between the parties to discuss how to handle it

- Neutral assessment: assessment by a group of people with expertise related to the dispute to provide a solution or orientation for the two parties

In some cases, one of the above forms is used by the judicial authorities, especially the courts, in the legal process, and it plays the role of a mandatory step in dispute resolution As disputes related to marriage, family, or land

In addition to the above three forms, the informal judicial process is also used according to custom, also known as customary law, especially for disputes

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arising in the community with specific characteristics lifestyle, culture, traditions, and customs However, it is also necessary to pay attention to the issue of conformity or not between custom and legal provisions to apply for dispute settlement

In order to ensure the correctness and reliability of the dispute settlement activities of the formal and informal judicial systems, it is necessary to have supervision and supervision activities by agencies, organizations, and unions in society In these bodies, elected bodies and civil society organizations play a leading role Agencies such as the National Assembly, the inspectorate, the anti-corruption committee, and the commission to protect human rights are also included in this system

1.2.4.3 Legal advice and legal aid system

In addition to the above-mentioned formal and informal judicial agencies, the legal advice and legal aid system also plays an increasingly important role in ensuring the exercise of the right to legal aid, especially for disadvantaged social groups (children, women, people with disabilities )

Clause 2, Article 11 of the 2017 Law on Legal Aid, stipulates on state legal aid centers: “A branch is a dependent unit of the State Legal Aid Center, established in districts in regulated regions especially difficult socio-economic conditions, inconvenient transportation to the State Legal Aid Center, and no law-practicing organization or legal consultancy organization participating in legal aid The State Legal Aid Center is responsible for all activities of the Branch Based on local needs and actual conditions, the President of the People's Committee of the province shall decide to establish a branch of the State Legal Aid Center

Legal aid and advice, especially when combined with propaganda and education, improve and expand their understanding of the provisions of the law Especially for areas where the level of legal knowledge is still low such as in

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rural areas, mountainous areas, ethnic minorities, etc., legal aid sessions of groups and organizations , has had a positive effect, providing the most basic knowledge related to the most essential issues in daily life such as marriage, family, land, education, inheritance,

Not only that, some legal aid organizations also provide free legal services to help women in participating in legal proceedings Cooperate with companies, and law offices to advise, represent and defend women free of charge; even in some cases with some subjects, these help centers even provide temporary shelter to provide temporary safety for them during the case resolution process The target audience of this activity is mainly women suffering from domestic violence, orphans, abused children, the poor, etc difficult to obtain legal aid or other legal services

Therefore, it can be said that the legal aid rights of abused women are increasingly enhanced and guaranteed in today's society, from which they will be protected by the state and the law

1.2.4.3 In the context of economic, social culture

Our country is building a socialist-oriented market economy, with the positive side of promoting socio-economic development, but the negative side is that there are still many old-fashioned women in some areas are still subject to many prejudices Therefore, this is an inevitable factor leading to inequality in access to educational, medical, cultural, and especially in accessing legal services Abused women often have negative thoughts, so they don't have the will to stand up for themselves Therefore, ensuring the right to legal aid of abused women has created the necessary mechanism for them to have the same conditions and circumstances as others in accessing legal services, strengthening confidence in the law, contribute to social justice, prevent and limit disputes and law violations, and ensure human and citizen rights