Pháp luật tố tụng phong kiến việt nam từ thế kỷ XV đến thế kỷ XIX tt tiếng anh

VIETNAM ACADEMY OF SOCIAL SCIENCE GRADUATE ACADEMY OF SOCIAL SCIENCE - - HA THI LAN PHUONG FEUDAL PROCEDURAL LAW OF VIETNAM FROM THE 15TH TO 19TH CENTURY Major : Theory and History of State and Law Major code : 38 01 06 DOCTORAL THESIS ABSTRACT ON JURISPRUDENCE HANOI – 2019 This work is completed at: GRADUATE ACADEMY OF SOCIAL SCIENCE Scientific Supervisor: Assoc Prof PhD Nguyen Thi Viet Huong First reviewer: Prof Dr Thai Vinh Thang Second reviewer: Assoc.Prof Dr Nguyen Minh Man Third reviewer: Assoc.Prof Dr Hoang Van Tu This thesis was protected before Doctoral Examination Council which was organized in Graduate academy of social science At: hour, April …, 2019 This thesis could be referred at: National library of Vietnam Library of Graduate academy of social science THE RELATED WORKS OF DOCTORAL CANDIDATE The achievements on procedural law of Le Thanh Tong reign in judicial history of Vietnam, June 2018, Co-author Le Ngoc Duy, Journal of legal professions review, Judicial Academy, No.03, (p.52-58) The theory on the procedural law of feudal state of Vietnam from 15th to 19th, February 2018, Co-author Ha Thi Lan Anh, Journal of legal professions review, Judicial Academy, N0.01, (p.58-64) Preventing corruption in feudal law of Vietnam and experiences, June 2017, Journal of legal professions review, Judicial Academy, No.03 (p.59-64) Characteristics of procedural law of feudal state of Vietnam, June 2016, Journal of legal professions review, Judicial Academy, No.3 (p.26-33) Lawyer and the issue on protecting human rights in procedural activities, February 2016, Co-author Ha Thi Lan Anh, Journal of legal professions review, Judicial Academy, No.01 (p.43-46) The progressive points and the drawbacks on the procedural model of contemporary Vietnam in comparison with the procedural model of feudal state of Vietnam, June 2015, Journal of legal professions review, Judicial Academy, No.03, (p.26-31) Comparing procedural law and the real application of feudal state and contemporary state, June 2013, Journal of legal professions review, Judicial Academy, (p.42-46) Rule of law and state, December 2012, Co-author Ha Thi Lan Anh, Journal of legal professions review, Judicial Academy, No.06 and No.01.13 (p.5-10) Overview on criminal procedural law in feudal Vietnam, 2010, The specialized number on “Criminal procedural model of Vietnam”, No.5+6, (p.5 -102), Supreme Public Prosecution OPENING SESSION The necessity of the subject of research Procedural law is an important part of legal system in Vietnam and also in the world In any historical periods, procedural law was always important to establish a judicial power regime to protect the state, protect the politico-economic regime, maintain justice, ensure human right and the humanitarian values of human To implement the strategy of judicial reform until 2020 with the vision to 2050, the state of Vietnam ratified the 2013 Constitution and amended many important codes Political report in 12th National congress of Vietnam Communist Party affirmed to “continue to enhance the implementing of Judicial Reform Strategy, build the transparent, strong, democratic judiciary to protect justice, human rights, citizen’s rights, communism, state’s interest, rights and interest of organizations and individuals” [1, p.114] Judicial reform is a long distance which demands the great determination of state From the judicial historical view, Vietnam possesses the progressive and unique heritage in compare with the different states at the same era But in reality, the sources and the researches on the historical laws and procedure law in history have many drawbacks Phan Huy Chu researched on the traditional legal system of Vietnam and he regret because of the disappear of legal cultural heritage of the nation.“Unfortunately, The legal documents of a reign which make the perpetual framework has lost” [11, p 65] With these formal reasons and the hope to contribute to the professional judicial system to protect justice, protect human rights, the phd candidate has chose the subject: “Feudal procedural law of Vietnam from the 15th to 19th century” for the thesis The purpose and missions of research 2.1 The purpose of research Through research of the progress of the establishing, form and content of feudal procedure law of Vietnam from the 15th to 19th century, the thesis clarifies the achievements, values and the ability to apply to build and improve procedural law and judicial reform of contemporary Vietnam 2.2 The missions of research Firstly, to evaluate generally the research status in Vietnam and in the world on the feudal procedure law Secondly, the theoretical and historical issues on feudal procedural law of Vietnam from 15th to 19th century Thirdly, to research the content of procedural law of Le, Trinh, Nguyen dynasties through the Codes and formal history document Fourthly, to find out the historical and contemporary values, the advantages and drawbacks on the establishing and applying of feudal procedural law The scope and object of research 3.1 The object of research This thesis concentrates on researching the scientific views on the procedural law, the contents of feudal procedural law from 15th to 19th century and the view of applying traditional law into building contemporary law 3.2 The scope of research On the time, feudal procedural law from 1428 to 1884 On the space: the North of Vietnam in Le’s dynasty and both the North and the South of Vietnam in Nguyen’s dynasty Methodology and research methods 4.1 Thesis’s methodology This thesis based on the dialectic materialism and historical materialism, methodology of jurisprudence, history, economics, politics, administrative science and logic 4.2 Research methods This thesis use the common methods of social science research, the unique methods on research of jurisprudence and history, namely: statistics, comparison, annalistic.v.v The thesis based on interdisciplinary approach of social science to research and analysis the procedural law in context of Vietnamese society in imperial period The new contributions of research Firstly, this thesis recognized the theory and history, analyzed the characteristic of judicial power regime in imperial state Secondly, this thesis described the general scene of feudal procedural law along with analyzed deeply the process of establishing and developing of feudal procedural law from 15th to 19th century Thirdly, this thesis clarified some contents and the nationality of feudal procedural law, namely: authority and process of procedure, protocol of procedure, actions and monitoring procedure, classifying of cases in procedure, precedents, fining, regimes of “Dinh Nghi”, “Thu Tham”, “Tam Phap Ty” Fourthly, this thesis recognized and analyzed the progressiveness of feudal procedural law from 15th to 19th century Fifthly, this thesis pointed out the historical and contemporary values and also the ability to apply these values in the process of improving procedural law, judicial reforming, rule of law, protecting citizens in Vietnam Scientific and practical significance of research This thesis clarified the legislative reality and history values of traditional procedural law, then pointed out the lessons on legislation, building and applying procedural law into judging, the ways for improving the contemporary procedural law The structure of thesis Beyond the acknowledgement, table of abbreviation, opening session, conclusion and bibliography, the thesis consists of four chapters CHAPTER ONE: GENERAL STATUS OF SUBJECT’S RESEARCH 1.1 Abstract of research status 1.1.1 Domestic research status On theory and history: “Legal history” (1967) of Vu Quoc Thong could be deemed as the most typical research on the imperial regime and the organizing of judiciary in feudal Vietnam The author cognized on the procedural law after 1649 that: “the organizing of judiciary was clear and the procedures namely suing process, investing process, appealing process were also transparent” [209 p.375] The “Quoc trieu kham tung dieu le” also had unambiguous provisions on the cases, the authority and protocols of procedure The second is“Traditional Codes of Vietnam and judicial history” which includes “Overview of judicial organizations and procedure in traditional codes” of professor Vu Van Mau [146, p.227 - 265] This research on “Quoc trieu kham tung dieu le” showed the progressiveness on the legal technique and the separation of substantive law and procedural law and concluded that: “In legal history of Asia, it is the unique law on procedure and the organizing of judiciary It proved that in the traditional legal, Vietnamese legislators perceived the separation of substantive law and procedural law” [146, p 265] It is important that in the procedure of international tribunals the unity of the forms and protocols is the basis for judging It is the core problem of international procedural law On contents and forms: The third is “Research on the legal system of Vietnam from 15th to 18th century” (1994) including the article of the author Pham Diem on “Procedural law” [165, p 245 - 262] It is the research on procedural of Le’s dynasty which includes two main contents of “Quoc trieu hinh luật” and “Quoc trieu kham tung dieu le”, namely: authority and process of procedure; protocols of procedure, suing and judging The author stated that procedural law in Le’s dynasty is a “precious and unique heritage” The fourth is: “History of criminal procedural law in Vietnam” (2003) of doctor Tran Quang Tiep [214, p.7- 46] The author stated that: “Criminal procedure law in this period had some achievements, represented the humanitarianism in criminal procedural actions of our ancestors” [214, p 46] The fifth is the article names “feudal procedural law in the ‘Quoc trieu hinh luat’” of doctor Hoang Thi Minh Son in the book “‘Quoc trieu hinh luat’ establishing history, contents and values” (2004) This article’s content is on the overview of procedure including: investigation, prosecution, judging and implementing the jurisdiction [197, p.267 - 287] The sixth is “Procedural law in Nguyen’s dynasty (1802 - 1885)” (2017) The author stated that: “The Nguyen’s dynasty organized the judicial system which was disciplined, rigid and based on the effective imperial regime” [63, p.569] On general view: “Lich trieu hien chuong loai chi” (1819) of Phan Huy Chu Book “Quoc Trieu Hinh Luat and the historical and contemporary values for contributing to rule of law in Vietnam” (2008) [190, p.381, 404] Bui Xuan Dinh (1998) with “Le lang phep nuoc”, “Huong uoc va quan ly lang xa” [79, 80] Le Duoc Tiet with “Huong uoc le lang” (1998), “Hong Duc’s Code” (2010) [215, 216, 204] “Duc tri va Phap tri” [108, 110, 115, 131, 144, 152, 155, 157, 161, 173, 212, 213, 223, 31] Beside this, there were the scientific projects, academic articles, theses, which related to the feudal procedural law 1.1.2 Research status in the world On theory and history: Actually, in the world, the researchs on theory and history of feudal procedural law are spare, inadequate [88, 89, 135, 141, 235, 236] [57, p.14] The new book “A history of Viet nam” of Keith Weller Taylor is information about economy, politics, culture, society On the form and content of procedural law: The work of French author Doloustal on traditional law of Vietnam The work of lawyer Phan Van Truong on the Nguyen’s dynasty law in comparison with Quing dynasty law In US, the authors Nguyen Ngoc Huy and Ta Van Tai with: “Le code des: Quoc Trieu Hinh Luat ou lois penales de la dynastie nationale”, “Traditional law in Vietnam” The translation and introduction of “Quoc trieu hinh luật [238, p.173] [57, 141, 228] The scholar Insun Yu from Korea in the work “Legal system with Vietnamese society from 17th to 18th century” researched “Quoc trieu kham tung dieu le” for enhancing the fair and quick handling the cases for people’s interest [113, p 65] Insun Yu left a comment on procedural law in Le-Trinh government in a different approach He stated: “the unfair in procedure consist in the corruption of the officials and the intervention of interest group” [113, p.64] The author cited Samuel Baron that: “If they buy the position, they would seek for the interest and violate justice” [113, p.233, 234] These statement need to be researched to clarify the cause and effect of this phenomenon nin the Court of Vietnam in feudal time 1.1.3 Documentary systems for research It could be divided into two documentary systems: Firstly: legal documents; Secondly: chronicles and bibliographies 1.2 Comments on research status 1.2.1 Overview on research status Generally, there are some works on the feudal procedural law but it lacks of the research on the procedural law in imperial period and Le Thanh Tong reign 1.2.2 The clarified research contents Firstly, the general theory and history of state organization and law in Vietnam at feudal time namely: political regime, the form of monarchism Secondly, the system of feudal procedural law in Quoc trieu hinh luat and Hoang Viet luat le, contents of Quoc trieu kham tung dieu le have been researched generally Vu Van Mau and Vu Quoc Thong are two significant scholars Thirdly, the values of imperial law of Vietnam from the overview of Quoc trieu hinh luat, Quoc trieu kham tung dieu le in Le’s dynasty, Hoang Viet luat le in Nguyen’s dynasty 1.2.3 The issues need to be complemented Firstly, the concept, role, principle, characteristic, nature, structure, the participants of procedure Secondly, the relation between the legal documents, substantive law and procedural law Thirdly, the comparison between procedural law in Le Thanh Tong reign, Le-Trinh period and Nguyen’s dynasty Clarifying the specific legal documents on procedure, namely “Quoc trieu Hong Duc nien gian chu cung the thuc”, “Nhan mang tra nghiem phap”, “Tu tung dieu le”, “Quoc trieu kham tung dieu le” and the relation between these documents and Quoc trieu hinh luat, Hoang Viet luat le [54, 55, 56] Fourthly, the model of procedure , ensuring the unity of the organizing and operating procedural law On the time, evidence, jurisdiction Fifthly, the practice of operating and applying feudal procedural law Sixthly, the highest role of Le’s Kings, Trinh’s Lords and Nguyen’s Kings in judiciary in comparison with execution, economy and military Seventhly, the precedents, for instance: “Huong hoa dien san”, “Tien le Giap At”, “Nguyen Mo” in Quoc trieu hinh luat, Hong Duc thien chinh thu, Hoang Viet Luat Le [31 - 35] The conclusion needs to reach to the judicial reform for justice, human right, combination between tradition and modern It is the lesson from the values of Vietnam traditional laws and procedural law 1.3 Theoretical basis, research questions and hypotheses 1.3.1 Theoretical basis of research Firstly: Marxism, Leninism and Ho Chi Minh’s thought, Communist Party’s views and principle of law Secondly: The applying of traditional procedural law view with the ideology of national independence, national sovereignty, national security Thirdly: The theory and history on the organizing and controlling power in Vietnam imperialism and its impact to procedural law 1.3.2 Research question (1) What are the issues on theory and history of feudal procedural law? (2) What are the characteristics and nature of feudal procedural law? (3) What is the relation between the state organs in imperial regime? (4) What is the basic form and content of feudal procedural law? (5) What are the achievements and drawbacks and lessons? (6) What are the historical and contemporary values of feudal procedural law? 1.3.2 Hypotheses Hypothesis 1: There was no independence court and judge in imperial regime of Vietnam Hypothesis 2: Procedural law was promulgated in Le Thanh Tong reign (1450-1497) Vietnam is one of the most early state that promulgated the procedural law Hypothesis 3: feudal procedural law in Vietnam had many advantages: on legal technique, form, content, protocols The drawbacks were the abusing of procedural law, the unprofessional storage Hypothesis 4: feudal procedural law shows the exclusivity, aristocracy, nationality and humanity The reality of feudal procedural law is the thermometer for court’s justice Hypothesis 5: There are many potential values in national cultural legal of Vietnam which could be learnt in the process of development It shows the combination of the Vietnamese and Chinese factors These hypotheses are almost true assumption Conclusion of the 1st chapter: feudal procedural law has been research generally based on the Codes, legal documents and chronicle Some procedural documents in Le Thanh Tong reign and Le-Trinh dynasty have not been studied deeply, some arguments are also controversial and lack of comparison between Le’s dynasty and Nguyen’s dynasty However there are a few achievements but in general, feudal procedural law from Le’s dynasty to Nguyen’s dynasty even have absent issues CHAPTER TWO IDENTIFYING THEORY AND HISTORY OF FEUDAL PROCEDURAL LAW OF VIET NAM FROM 15TH TO 19TH CENTURY 2.1 Theory of feudal procedural law in general 2.1.1 Theory of procedural law in general Theory and history of procedure law in general Human history from many years ago established ambiguously basic notions on the procedural action From 15th to 17th, in Western Europe, there were court, prosecution and lawyer in order to protect possession right and human rights Perception and concept on procedural law Mandarin-Vietnamese dictionary explains: “‘To’ is report, to speak out, ‘Tung’ is to sue, debate” [221, p.545] The French-Vietnamese dictionary also have the same meaning: acccuser, dénoncer, procès, plaider, cause, contester, litige [86, tr 771 -1003 - 1113] According to English-Vietnamese dictionary, procedure is process, law litigate [172, p.125] The reigns of Vietnam feudal time prioritized the purpose of law is to comfort people, to consolidate the government, to handle violation, to ensure justice and to stabilize society In 1042, the king Ly Thai Tong ordered a “Trung Thu” official to write the Penal Code then he promulgated “After that, the procedure become stable, clear and useful to people” [23, p.263] The king Le Thanh Tong [24, p.401] and king Hien Tong, in the 38th year of Canh Hung (1777) amended procedural law “in order to make fair politics, precise litigation, to comfort people, to be deserved as position” [10, p 303] In Nguyen’s dynasty, the king Gia Long also considered seriously the judging based on law, using morality to educate people and balancing there both two sides [31, p.1-5] The king Minh Menh prioritized legalism in law application [51, 52, 53] Procedural law is a “boat” which transfers the substantive law to reality In general, procedural law is the collection of the provisions on principle of all processes of procedural actions, which is implemented in a protocol to judge criminal, civil, administrative, military cases or to solve other litigations to protect human rights, state, society and community with the dimension to justice, stability and development It is necessary to research the related concept, namely procedural authority, procedural protocol, procedural process, procedural actions 2.1.2 Position and role of feudal procedural law of Vietnam Position of feudal procedural law of Vietnam is showed in the structure of two main codes are “Quoc trieu hinh luat”, “Hoang Viet luat le” and “Quoc trieu kham tung dieu le” The role of procedural law is the mean to protect the law, prevent violation, punish the crime, restore the effect and bring justice to society “Law is a mean to make the governance to be better” [31, p.1- 3] 2.1.3 The basic principle in feudal procedural law of Vietnam 12 centralization, the lower level had to be obliged in administrative, military and judicial orders [54, p.114] 3.2 The provisions on the authorities of judging of feudal state of Vietnam from 15th to 17th century 3.2.1 The authorities of judging in judicial activities in Le’s dynasty (1428-1527] 3.2.1.1 The authorities of local government According to the article 672 of “Quoc trieu hinh luat” [57], if the people in a district had litigation, the authority to solve the small cases belonged to the district organs [46][55, p 245, 499] The reform of Le Thanh Tong made the unity of the administrative units and the change of the level of judging: District level with the “Tam phap ty” mechanism This reform’s values were stable, harmonized 3.2.1.2 The authorities of central government “Quoc trieu hinh luat” have the provisions on the suing to central government followed by the establishing of the council of judge, if all the evidence were clear then judging based on the evidence (Article 667, 668 of “Quoc trieu hinh luat”) (Article 669, 673, 675, 687, 689 of “Quoc trieu hinh luat”) (Article 720, 721 of “Quoc trieu hinh luat”) The provisions on “Hoi ty” aimed to ensure the objectivity of judging 3.2.2 The authorities of judging in judicial activities in Le-Trinh’s Dynasty (1599-1786) 3.2.2.1 The authorities of local government There were clear provisions in “Quoc trieu kham tung dieu le” Any precise cases could be sued at district government [54, p.270, 271], the harassed cases, such as assassination, raping could be sued at provincial government “Quoc trieu kham tung dieu le” was more clear than “Quoc trieu hinh luat” and Le’s dynasty laws [54, p.177] 3.2.2.2 The authorities of central lord’s government According to “Quoc trieu kham tung dieu le”, the judicial central government were mainly “Hinh bo”, “Dai ly tu”, “Ngu su dai” and “Chanh duong” Lord’s government gradually took all the military and procedural authorities of king’s government Any cases which were submitted by local government were solved in lord’s government 3.2.3 The authorities of judging in judicial activities in Nguyen’s Dynasty (1802-1884) The region, population and government of Nguyen’s dynasty had many characteristics in compare with the former dynasties Based on the lessons of Le’s dynasty and refer to the judicial administration model in Quing dynasty of China, the organization of judiciary in Nguyen’s dynasty had some progressive point [230, 231, 232] 3.2.3.1 The authorities of local government 13 The district government: (Article 305, 355, 358 of Hoang Viet luat le) The procedural authorities were identified based on the three main types of cases: Civil cases included criminal and civil case belonged to the authority of district government; military cases which related to army were judged based on military law, commercial cases which relate to trading activities were solved at provincial government The procedural classifying was more general than “Quoc trieu hinh luat” and “Quoc trieu kham tung dieu le” The important cases after judging by “An sat” need to be submit to “Tong doc”,“Tuan phu”[52, p.403, 404] The Nguyen’s dynasty centralized power much more than Le’s dynasty at provincial level [31; 32; 33] 3.2.3.2 The authorities of central government The procedural authorities of “Hinh bo”, “Do sat vien”, “Dai ly tu” [22, p.9-13] The head quarter of the judging organs “Tam phap ty” was “Cong chinh duong” [52, p.333 - 336] The highest judging council was “Cong dong” “Dinh nghi” under the leading of the king [37, p.310 - 312][51, p.220] The drumming “Dang van”, “Thu tham” and “Kinh luoc su” were progressive judicial precedents 3.2.4 The authority of monitoring judicial activities 3.2.4.1 The authority at local level With “Quoc trieu hinh luat” and “Quoc trieu kham tung dieu le”, “Ngu su dai” at Le-Trinh’s dynasty through six organs to monitor the jurisdictions based on the reasons of cases to check the judges [54, p.282, 296] In Nguyen’s dynasty, “Do sat vien”, “Kinh luoc su”, “Kham sai dai than” were allowed to solve the cases before submitting At the local level, there were “Hien ty” and “An sat” who monitored the two administrative levels, “Giam quan” and “Giam lam” 3.2.4.2 The authority at central level According to “Quoc trieu hinh luat”, “Tri tu tung” or “Tham hinh vien” and “De hinh ngu su” had authorities to allow the cases before the ratification of the king After that, the jurisdiction would have legal validity This was the interdisciplinary mechanism In “Quoc trieu kham tung dieu le”, the authorities belonged to “Ngu phu”, “Phu lieu”, “Chuong phu su”, ‘Thu phu su”, “Tham tung”, “Boi tung”, “Luc bo”, “Luc phien”; the highest authority belonged to lord’s government [54, p.297] In Nguyen’s dynasty, there were “Do sat vien”, “Dai ly tu” and “Tam phap ty”, the mechanisms of “Dinh nghi” and “Thu tham” At the highest position of the monitoring system at central government was the king 3.3 The provisions on process and protocols of judging the cases in procedural activities of Vietnam’s feudal state 3.3.1 Laws on protocols of suing, admitting cases were objective, clear, tight, synchronized, unified 14 Procedural law allowed two types of suing Firstly: submitting the paper of accusation at the head quarter of state organs in accordance with the related provisions; Secondly: If the case was immediate and needed to be report as soon as possible, it was allowed to make the sound by drumming at the head quarter of state organs and the officials must handle it immediately [54, p.278, 281] In principle, when a paper was submitted, it must be attached with the evidence and be compatible with the regulated form [56, p.239, 251, 253, 297] [54, p.297] If the submitter could not write then he or she might be helped On the form of the paper, it needed to include the time, the truth of event [57, p.184] (Article 508 of “Quoc trieu hinh luat”) The laws based on Confucianism so that a person must not accuse his or her parent and grandparent, the wife must no accuse her husband If the siblings accused each others, the one who made fail would be punished more In the choosing between family’s gratitude and social obligations, the traditional laws chose family’s gratitude Article 306 of “Hoang Viet luat le” explained that “family’s gratitude is the irreplaceable nature” The choosing of traditional laws was accurate and incisive The traditional laws prohibited the accusation without name because it was evil (Articles 502, 504, 511, 512 of “Quoc trieu hinh luat”) (Article 302 of “Hoang Viet luat le”) [58] An important content with was regulated in “Thong le kham tung” of “Quoc trieu kham tung dieu le” on the limitation of time for submitting the accusation: “The time limitation on the land and thief is months, murder is months, marriage is months with the stated date is when the accused was arrested” [54, p.275] If this limitation was exceed, the accusation with be suspended “The suing which was lengthened for years could not be admitted” [54, p.274] The codification of “Hong Duc nien gian chu cung the thuc” regulated 70 forms of procedural papers,“Quoc trieu thu khe the thuc” regulated form of testament and contract, “Hong Duc hon gia” regulated the process of marriage,“Hong Duc thien chinh thu” with 228 provisions were mostly on civil cases and land [54, p 297, 298, 299, 300] In “Hoang Viet luat le”, the admitting of the suing was also regulated with the procedural officials:“The officials must be quick to admit the accusation” If there were any neglect of officials, they will be punished (Article 303 of “Hoang Viet luat le” With the criminal cases, when they happened it must be accused All the cases of murder would be solved by the provincial officials [58] The documents showed that the laws was respected in the procedural activities of imperial feudal state of Vietnam 3.3.2 The provisions on investigation was progressive, based on evidence and objective truth 15 On investigation The form of procedural documents, namely accusation and evidence were regulated clearly in the law [165] [197] [63] For ensuring the integrity and objectivity, “Quoc trieu hinh luat” and “Quoc trieu kham tung dieu le” also regulated clearly the procedural process In the investigation, the officials must be obliged with the provisions on detention, interrogation and torturing (Articles 668 and 669 of “Quoc trieu hinh luat”) [54, p.281-311] (Article from 701 to 704 of “Quoc trieu hinh luat”) [57] [58] There were provisions on investigation, evidence, interrogation and mitigation of the elderly, children and disabilities (Article from 361 to 378 of “Hoang Viet luat le”) 3.3.3 The provisions on court of instance, court of appeal and final court 3.3.3.1 The provisions on court of instance Court of instance needed to ensure the process, evidence, law and responsibilities of judges The judging had to be obliged with the time limitation and if not, the judges might be punished (Articles 670 and 671 of “Quoc trieu hinh luat”) [54, p 271, 272] On the evidence, it is an important issues on procedural process Accordingly, “Quoc trieu kham tung dieu le” regulated that the judging must be reasonable The land cases based on the contract, the marriage cases based on certificate, the inherit cases based on testament The principle of respecting evidence was be prioritized The provisions on instance court, therefore, were progressive and humanity On the legal base, in judging, the principle were legal based But in some cased related to minority ethnics, the judging could be flexible So that, in the process of applying and implementing laws, the subjects needed to concern to the context and conditions [10, p.389] Confucius said that: “I can judge like another but the difference is make no litigation” “The officials, in case of judging, have to clearly solve the case to comfort all persons” [55, p 239] [56, p 240] For all cases, the responsibility of instance court was most high and the judges had to be careful [56, p.292] 3.3.3.2 The provisions on court of appeal The provisions on court of appeal ensured the protocols, time limitations and the process was reasonable According to the law, before judging, the judges had to meet and debate seriously (Article 720 of “Quoc trieu hinh luat) The officials had to implement their obligation enthusiastically If all the truth were exposed reasonably but the accused not accept, he or she will get more punishment (Article 721 of “Quoc trieu hinh luat”) [54, p.279] 3.3.3.3 The provision on final court with three levels, the highest level was central government and the king is the highest judge 16 In “Quoc trieu Hinh luat”, “Hoi dong Dinh nghi” and the officials had right to debate and the king would make the final jurisdiction by his own decision [57, p.244] “Hoang Viet luat le” regulated on the court in autumn was the final court (Article 376 of “Hoang Viet luat le”) [52, p 322, 333, 335, 336, 415] In general, the cases had to be considered carefully by a council of the central government officials which led by the king 3.3.4 The provisions on implementing the jurisdictions, amnesty The amnesty of state have to be accordance with the socio-economy condition and the reality There were eight cases of amnesty not including women, children, elders and disabilities Implementing jurisdiction was the important mission of procedural activities “Can can cong ly” and “Ao hinh giai Trai” were always the symbol of the integrity and transparency of judges In “Quoc trieu hinh luat”, the officials could be fined if submit to implement a death penalty in the festival days (Articles 676 and 710 of “Quoc trieu hinh luat”) [57, p.230, 241] In “Hoang Viet luat le”, the time for implementing death penalty was autumn (Book 179 – “Kham dinh Dai Nam hoi dien su le”) Amnesty was a humanity policy of state Normally, the scope of amnesty were women, children, elders, disabilities, “Bat nghi”, foreigner (Articles 21, 22, 33, 133, 369, 385 of “Hoang Viet luat le”) [58] In case of natural disaster, the king could amnesty for many persons The general criminal policy was using punishment to reduce punishment In some cases, the civilized punishment was also a value of feudal procedural law of Vietnam [31,32,33] 3.4 The provisions on classifying cases in procedure of feudal law of Vietnam It could be considered that the classifying cases was one of the most progressive content which showed the specialty of the cases in Le-Trinh dynasty In comparison with today, the cases could be classified into criminal, civil, administrative and office aspects 3.4.1 Procedural law in criminal aspect 3.4.1.1 Precedent on murdering (Precedent number 15, “Quoc trieu kham tung dieu le” The precedent on murdering were regulated mostly in the Precedent number 15, including articles, from article number 66 to 73, “Quoc trieu kham tung dieu le” 3.4.1.2 Precedent on thieving (Precedent number 16, “Quoc trieu kham tung dieu le”) (Articles 16, 74, 75 and 76, “Quoc trieu kham tung dieu le”) In case the grandparent or parent or children hide the criminals because of gratitude, it is not prohibited, the female thief was reduced the punishment (Articles 429, 450, “Quoc trieu hinh luat”) 3.4.1.3 Precedent on affray (Precedent number 22, “Quoc trieu kham tung dieu le”) If the affray was happened, the wounded one had to report, the village’s officials had to investigate and 17 recognize clearly the time of investigation 3.4.1.4 Precedent on gambling (Precedent number 27, “Quoc trieu kham tung dieu le) The contracts in gambling were all prohibited and a half of the value of these contracts would be offered to the accuser Precedent number 27, Article 125 regulated that the loser in gambling was obliged by the winner to sell his own land and it was prohibited and punished toughly [54, 55] 3.4.2 Procedural law in civil aspect 3.4.2.1 Precedent on land (Precedent number 17, “Quoc trieu kham tung dieu le”) The precedent on land related mostly to the privatization of public land Article 84 of “Quoc trieu kham tung dieu le” regulated that the case of privatization the offering land had to be solved by the district officials (Article 82, 89 and 85) On the limitation time of suing: If the suing did not exceed years, it would be solved In three months, it must be judged The limitation of time in case of relating land was not much more than 600m2 was months The government had many means to prevent the privatization land of the officials [54, 55] 3.4.2.2 The precedents on insulting, fornication, marriage, loaning (Precedents from 23 to 27 “Quoc trieu kham tung dieu le”) Precedents on another civil cases (Precendents from 28 to “Quoc trieu kham tung dieu le”) Precedent on insulting: When the insulting was happened, the village’s official had to make a report with a copy and the head of village must sign at this report Precedent on fornication: The officials had to investigate the fornication if there was a report on this case in 10 days Precedent on marriage: The marriage had to go through the ceremonies of “Van danh” and “Nap trung” (Article 315 of “Quoc trieu hinh luat”) It was prohibited to refuse the marriage arbitrarily and impact to the fame of both groom and bride families Precedent on loaning: the mortgagee was prohibited to capture the debtor If the debtor family had a funeral, the mortgagee had to wait to make a dues [54, 55] Loaning was a common civil relation in society The law prevented the arbitrary actions of mortgagee to make the debtor become distress Precedent on tomb and grave: If the parties could mediate together, the officials had to recognize this mediation to stop the suing and reduce the fee 3.4.3 Procedural law in administration, finance: The precedents on administrative officials: suing on corruption, abusing tax (Precedents from 18 to 21 “Quoc trieu kham tung dieu le”) and another documents On the authorities to judge the cases related to officials: belong to “Hien ty” in province and “Ngu su dai” in capital The responsibility on compensation of officials was regulated clearly 18 The steps of suing the abusing: laws had re regulations on the subjects and the process of suing the abusing of officials Precedent on officials prevented the judicial officials to affiliate to abuse their powers If the corruptions were happened, all the officials would be punished [54, 55] 3.5 The provisions on military judicial administrative regime of officials and some telling cases in imperial feudal time of Vietnam 3.5.1 The provision on military judicial administrative regime of officials Imperial examination and appointing officials had an imperative importance According to the principle of “Kinh thu”, from Ly-Tran to LeNguyen dynasty, imperial examination was the most methods to recruit officials “The talent is the strength of nation, imperial examination is the way of officials” [9, p.442- 450] The chapter “Vi che” included 144 provisions on the judicial administrative regime of officials and imperial examination (Articles 97, 98, 100, “Quoc trieu hinh luat”) The crimes of judicial officials were regulated clearly with high punishment The code determined clearly 24 circumstances on the abusing power of officials and it was the base verdict If an officials reduced the punishment for the accused, he could be punished (Articles 686, 720, 721, 722 of “Quoc trieu hinh luat”) In case of complicated circumstance, “Cong dong dinh nghi” would determine the crime and the king would decide (Article 375 of “Hoang Viet luat le”) 3.5.2 The reality of some telling cases in imperial history of Vietnam According to historical documents, from 15th to 19th century, there were more than 500 briefly recorded cases The comparison of these cases could give us much information and also many unknown issues need to be analyzed and explained According to the statistics in historical documents, from 1428 to 1789, there were more than 200 telling cases were recorded (56 cases in “Dai Viet su ky toan thu” book 2, 54 cases in “Dai Viet su ky tuc bien” book and 89 cases in “Dai Viet su ky tuc bien”) Statistics in “Dai Nam thuc luc” and “Minh Menh chinh yeu”, there were 380 cases on the officials violated in sercutiry, military, politics, and official’s regime There were 80 cases in Gia Long’s reign, 130 cases in Minh Menh reign, 60 cases in Thieu Tri’s reign and 110 cases in Tu Duc’s reign [12-21] Are there experienced lessons from the traditional history of precedents? Firstly, recorded history of precedents showed that all the erratic cases related to politics and military The cases were maintained in the people’s mind through many generations That means Vietnamese people concern to the fade of nation Secondly, some cases showed the family gratitude and the filial piety Some characterized cases were recorded in “Hong Duc thien chinh thu”, 19 namely the litigation between siblings and the jurisdiction of judge, case on worship land, case of son admit his father’s sins There was a humanity case such as Mrs Nguyen Thi Ton went through thousands of miles to make a petitioning for her husband at a not working day This case made a change on the law of state The king Minh Menh punished his princes Mien Phu and Mien Tham who abused powers [220, p 200, 203, 204, 244] Thirdly, researching the cases is a way to realize the reality of society and the implementing of law Conclusion of chapter three: In general, both the feudal law and feudal procedural law of Vietnam had some unique and progressive achievements They were the combination of the nationality and contemporaneous context, the integration by learning China but also keep the own characteristics Promulgating, implementing, amending and codifying procedural law from local to central government, from civil to military, from criminal to administrative aspect were the achievements of the imperial state of Vietnam CHAPTER FOUR THE HISTORICAL AND CONTEMPORANEOUS VALUES OF FEUDAL PROCEDURAL LAW IN JUDICIAL REFORM AND RULE OF LAW IN VIETNAM TODAY 4.1 The historical values of feudal procedural law of Vietnam 4.1.1 Historical values on legislation and legislative technique The values on legislation always have the heritability and initial develop: The most progressiveness in legislative technique is that feudal state of Vietnam is the most early nation that promulgated the first specialized procedural code in Asia This code made the new position to the judicial regime in imperial Vietnam The talent legislators were recognized in history namely Ly Thai Tong in Ly’s dynasty, Truong Han Sieu, Nguyen Trung Ngan and Tran Minh Tong in Tran’s dynasty, Le Thai To, Le Nhan Tong, Le Thanh Tong, Nguyen Trai, Phan Phu Tien, Than Nhan Trung, Do Nhuan, Dam Van Le in Le’s dynasty, the lord Trinh Sam and Nguyen Hoan in Le-Trinh dynasty, Gia Long, Minh Menh, Nguyen Van Thanh, Vu Trinh, Tran Huu in Nguyen’s dynasty [54, p.279] [9,10,11] 4.1.2 Historical values on constructing progressive legal system Values on the combination of theoretical science and the regulation The nation sovereignty and national independency were always the values on theory and practice of imperial state of Vietnam According to the evaluation of Oliver Oldman, Harvard University, on “Quoc trieu hinh luat”: “It is a perpetual endeavor to build a strong national state and the protecting the legal rights of private possession by a progressive legal 20 system” [57, p.19][58][54,55,56] The “reverting of punishment” was the application of value principle in punishment and the important progressiveness in the legislative technique of feudal state of Vietnam [31][35, p.153] Procedural law included the universality of society The code have the long and stable validity and gradually became the national customs The code and the content on procedural law had a long value and took root into the community until now 4.1.3 Historical values on the content of feudal procedural law of Vietnam to protect the state and society: Procedural law was a tool for protecting state and national administration The imperial state was established to implement the basic functions including organizing, constructing, subducting and protecting [54, p.51-201][46, p.10 - 120] In “Quoc trieu hinh luat” and “Hoang Viet luat le”, there were many provisions on protecting imperial state, national security, border and ethnics: Articles 2, 411, 412 of “Quoc trieu hinh luat” and Article 223 of “Hoang Viet luat le”, Ten Felonies, “Dao tac” and the provision on protecting Van Don harbor, controlling the trade and security at the border (Articles 614, 615 and 616 of Quoc trieu hinh luat)[58] Procedural law protected the economy, politics, culture and society According to Phan Huy Chu, “During 20 years, the nation has changed It is the god’s mind to give Nguyen’s dynasty a chance to unify the nation”[9, p.41] 4.1.4 Progressive and humanity values of feudal procedural law of Vietnam The scholars M Aikyo and T Inaco stated in a research work on South East Asian that: Historical law of Vietnam did not unified with Chinese law [97, p 58, 59, 60] The legal status of women was protected, the punishments were reduced According to “Quoc trieu hinh luat”, with the female thief, law regulated to reduce the punishment [169, p.33, 149, 159] (Article 1, 401-410, 429, 680, 709 of “Quoc trieu hinh luat) The humanity and family’s gratitude of Vietnam’s traditional law also had the filial values in the litigation on possession, contract, inheritance, compensation and relations between the relatives The classifying based on cases was one of the most important achievements of traditional procedural law of Vietnam [138, 139] Monitoring judicial procedure was the special legal mechanism to protect the laws Fining and converting the punishment to fining, the rule of value was applied in the punishment and its application This provision was favor to all parties and could prevent corruption and the abusing power in judicial activities The former and latter laws would make the condition for the developing of society 4.1.5 The unique values of traditional procedural law Firstly, there was no separation between substantive law and procedural law Secondly, there was no independency on the organizing of powers 21 amongst legislation, execution, judiciary, military security Thirdly, the border amongst criminal, civil, administrative, disciplinary and military procedure was relative Fourthly, administrative organs and procedural implementers and responsibility of officials were tough Fifthly, the punishing of judges when they violate the laws were tough Sixthly, the classifying procedural protocols based on cases had many meaning in the new era 4.2 The contemporaneous values of feudal procedural law of Vietnam 4.2.1 The theoretical contemporaneous values in constructing and applying feudal procedural law of Vietnam: Contemporaneous on legislation: It needs to have the talent legislators who design legal system both in theory and practice and establish the legislative council including the most prominent scholars Contemporaneous values on execution and judiciary: it needs to establish the administration compatible with the handling violations in order to ensure national security, national sovereignty, social development and good governance Contemporaneous values on procedural judiciary are the aiming to legal integrity Theoretical values of laws on legislation, execution and judiciary in constructing procedural law were to protect citizen, protect human rights, ethnics and to punish the law violation 4.2.2 The contemporaneous values in constructing and applying procedural law in judging of Vietnam’s feudal state 4.2.2.1 The constructing of an unified judging model and monitoring procedure The inquisitional system in “Quoc trieu hinh luat”, “Quoc trieu kham tung dieu le”, ‘Hoang Viet luat le” have many values in globalization era, the prioritization of public procedure which is comprehensive The traditional monitoring of procedure was relatively scientific and consolidated In reality and history, the procedural model combined inquisitional and adversarial system had some priorities 4.2.2.2 The procedural activities and judicial administration based on regional geography combined with the village’s law: in Le Thanh Tong’s reign, there were the provisions allow the villages to promulgate the private laws [35, p.103] This phenomenon was showed by “ Quoc trieu hinh luat”, “Hoang Viet luat le”, “Hong Duc thien chinh thu”, “Quoc trieu kham tung dieu le” and the law of Vietnam’s feudal state from 15th to 19th century This issue could be learnt to promote the forces from the basis to administrate and handle the violations in procedure 4.2.2.3 The classifying cases in specialized procedure and the new innovative values: Procedural law in Le-Trinh’s dynasty was specialized in each type of cases These regulations were proper, progressive and effective [54, p 373-378] The 22 author Vu Van Mau also stated that procedural law which was specialized and classified based on cased would make the convenience in the international litigations 4.3 The solutions on inheriting and developing the achievements of feudal procedural law of Vietnam in the judicial reform, rule of law in contemporary Vietnam Based on traditional law research, the thesis author recommends some solutions based on the link between the traditional and developing factors, including: 4.3.1 Building the ideology of rule by law, rule of law and human right; 4.3.2 Building the state and judicial institutions combining the centralization and decentralization of powers along with enhancing controlling powers, 4.3.3 Proper legislation and mechanism for controlling powers; 4.3.4 Applying the punishment strictly; 4.3.5 Educating, recruiting and appointing proper judicial human resources; 4.3.6 Authorities and obligations of the public sector in procedure; 4.3.7 Classifying based on cases professional and effective; 4.3.8 The unified solutions in judicial reform It needed to continue to research more on judicial procedure of Vietnam in history Based on this, the dimension to develop and integrate could be expected for the future of procedural models The near dimensions are: Firstly, Educating the human resources to integrate who can use international language fluently and have a huge knowledge on the nations in the world Secondly, Directing the judiciary based on the principle that protects Vietnamese person in the world Thirdly, Incorporating the adversarial system and inquisitional system and promoting the national traditional achievements and values Conclusion of chapter four The history of Vietnam from 15th to 19th century with the creating of the Codes had brought the unique achievements for procedural law in an imperial state administration There were not only the values on legislation, execution, judiciary, politics, economy, culture, society and security but also the confirmation that the level of state administration on judiciary was progressive Although there were a few drawbacks but the values on theory and practice of constructing and implementing procedural law of feudal imperial state of Vietnam has been recognized, researched, learnt, inherited and developed by the latter state through the history GENERAL CONCLUSION Researching the constructing and applying procedural law of feudal state of Vietnam from 15th to 19th century shows the achievement of legislation on the methodology, historical development, nature, principle and characteristic of procedural activities The legal values on the content, 23 authority, process and protocols of judging activities The achievements and drawbacks in applying and implementing law The solutions need to be inherited and developed The experiences on constructing legislative ideology, the structure of the provision in drafting the law and the concrete provisions of the code Thus, the applying of the progressive achievements in legislation of feudal state of Vietnam in order to fit with the development of new society is imperative Although procedural law of imperial feudal state of Vietnam from 15th to 19th was not the most perfect legal system but it could be considered the most achievement in this period when there was no nations in the world had a specialized procedural code Although the powers were centralized and the provisions and punishments were draconian but it showed the progressive legislative ideals Because of the importance of procedural law in constructing and governing nation, along with the process of history, all the states prioritized in constructing legal system including procedure Base on the principles, rules and basic dimensions, traditional procedural law established the proper provisions to ensure the integrity and efficiency of judging With the codes of imperial feudal state of Vietnam, although in research there are many barriers on language, grammar and the truth of translated documents but the values on legislation, execution and judiciary of the application of legal documents to regulate and govern the relations on state, society, individuals and families cannot be negated The contemporary legislator would concern on designing the law, the assumption on solving cases, the solutions on operating and applying law and the values of a humanity judiciary to contribute to procedural activities and the transforming of these values to construct and apply the law properly in today’s period The purpose of referring and using the historical documentary sources with the referring of the legislative experiences of the nations in the world is to aim to bring the achievements in legislation, to ensure the systematicity in the intents of nation, to gradually contribute to judicial reform and administration on judicial aspect based on human rights approach In the process of researching and comparing, we could realize that if the constructing and promulgating of the new legal documents and amending current laws to develop the economy and integrate to the international trading not achieve the intents then the researching and applying the achievement of imperial feudal state is very important with many sustainable values The detecting more legal documents on procedure in Le Thanh Tong reign with the amendments in Le Trinh dynasty brought many 24 achievements to the research on feudal procedural law of Vietnam It confirmed the objective evaluation of the Westerner scholars in the Almanach: from the 15 century, when Europe were on the dark age with the domination of the law of lord and church, in Vietnam and China there were the codes which they progressiveness astonished the Westerner researchers It also be confirmed by the scholar Vu Van Mau in the translation of “Hong Duc thien chinh thu”:“It is the spirit of own ancestors has concluded through many layers of history” Looking back to the history, looking forward to the world, fixing our self, dimension to the future The root of family and nation are always the basis for creating future and learning from the history is always the proper lesson Traditional not only have meaning with the contemporaneous state but also have meaning and precious experience in constructing legal system nowadays, especially in legislation, execution and judiciary to contribute to construct the socialism rule of law for affluence people, strong nation, democracy, civilization, peace, progressiveness and development for“independent nation, free citizen’s rights and happy citizen’s life” as the hope of president Ho Chi Minh Procedural law not only protects the justice through the legal protocols but also establishes the mechanism for implementing judicial power through the activities of Courts, Public Prosecution, Investigation and the Socio-political organizations In the current legal system of Vietnam, procedural law is gradually amended to be more concrete to have more proper provisions on content, progress and protocols of procedural in the criminal, civil, administrative, economic, trade, financial, labor and land cases to ensure the justice and the strictness of law, to gradually reform the judiciary, constructing rule of law with the dimension of profession, efficiency, progressiveness, integration and development ... library of Vietnam Library of Graduate academy of social science THE RELATED WORKS OF DOCTORAL CANDIDATE The achievements on procedural law of Le Thanh Tong reign in judicial history of Vietnam, June... of Vietnam from 15th to 19th, February 2018, Co-author Ha Thi Lan Anh, Journal of legal professions review, Judicial Academy, N0.01, (p.58-64) Preventing corruption in feudal law of Vietnam and... “Traditional law in Vietnam” The translation and introduction of “Quoc trieu hinh luật [238, p.173] [57, 141, 228] The scholar Insun Yu from Korea in the work “Legal system with Vietnamese society from