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MINISTRY OF EDUCATION AND TRAINING MINISTRY OF JUSTICE HANOI LAW UNIVERSITY PHAM HUNG CUONG PERSONAL RIGHTS OF VULNERABLE GROUPS IN SOCIETY UNDER THE EXISTING CIVIL CODE OF VIETNAM Speciality: Civil Law and Civil Procedure Law Student code: 9.38.01.03 SUMMARY OF PHD THESIS IN LAW HANOI - 2020 This work is submitted to Hanoi Law University Research instructor:1 PhD Le Dinh Nghi Assoc Prof PhD Ha Thi Mai Hien The thesis is deffended at The Assessment Commitee at the University level, taking place in Hanoi Law University at , March , 2020 Searchable at the National Library and Library of Hanoi Law University INTRODUCTION In recent years, Vietnam has adopted policies on issuing specific legal documents to enforce supporting measures for Human Rights in general and rights of vulnerable groups in particular Additionally, domestic and international people’s and non-government organizations have also launched manifold supportive programs and projects for the disadvantaged, such as providing financial aids, vocational training, jobs, access to public services However, there are numerous subjective and objective factors hindering vulnerable groups from the exposure to the government and organizations’ supports, including the incompleteness and vagueness in regulations, the lack of expertise and vocational skills among local officials, the constraints of State budget… Especially, protecting Personal Rights of the disadvantaged is only mentioned in Civil Code generally and some of other sector specific regulations, which is not a truly appropriate way of codification Hence, the thesis concentrates on researching: "Personal Rights of vulnerable groups in society under the existing Civil law of Vietnam" in order to improve the effectiveness of relevant regulations and legal implementation in the future The scope of the research is mainly focused on studying and clarifying the theoretical basis for Personal Rights of vulnerable groups as well as Vietnamese regulations on this issue, concurrent with researching, comparing with the law of other countries in the world Thus, the research points out the advantages and disadvantages of the law on Personal Rights of vulnerable groups in Vietnam today The thesis also researches on the implementation of the law on Personal Rights of the disadvantaged in reality to highlight the current status of legislation on this issue, thereby providing assessments and proposals to improve the law in the future The objective of the research is to clarify the theoretical issues, the current status of the law as well as the implementation of the law on Personal Rights of vulnerable groups in society nowadays Accordingly, the thesis is conducted primarily in logically dialectical and historical materialism of Marxism - Leninism and Ho Chi Minh’s philosophy on State and Law, concurrent with other appropriate specialized methods such as analysis, synthesis, comparison and sociological method to clarify research issues New findings of the thesis: Firstly, studying the characteristics, nature and identifying the most general features about vulnerable groups, thereby building up the most appropriate concept on this issue Secondly, analyzing and identifying the factors that affect the exercise of this right in reality Thirdly, researching and specifically identifying the types of right to identify of vulnerable groups representing the breadth of the thesis's research Fourthly, studying the legal regulations on Personal Rights of the disadvantaged in particular, both domestically and internationally, and partly contributing a comprehensive picture of the legislation and legal practices Fifthly, studying the regulations of other nations compared to Vietnam’s to improve the law Sixthly, providing legislators and researchers with clear sight of the loopholes in relevant regulations through the assessments in the thesis will In addition to the introduction, conclusion, list of references and appendices, the content of the thesis consists of chapters: Chapter 1: General theory of Personal Rights of vulnerable groups in society Chapter 2: Existing regulations in Civil law of Vietnam on Personal Rights of vulnerable groups in society Chapter 3: Current status of the implementation and protection of Personal Rights for vulnerable groups in society Chapter 4: Orientation and solution to improve the law on Personal Rights of vulnerable groups in society Chapter GENERAL THEORY OF PERSONAL RIGHTS OF VULNERABLE GROUPS IN SOCIETY 1.1 Overview on vulnerable groups in society 1.1.1 Definition and characteristic of vulnerable groups in society “Vulnerable groups are people who are disadvantaged, likely to suffer from violation and neglect of Human Rights; and they require more attention and protection than other groups and communities in society” Based on the analysis of the aforementioned definition, the features of the group can be presented as follows: - Having a lower political, social or economic status - Caused by underdeveloped physicality or natural gender - Prone to neglect or disregard, violation of Human Rights, in need of more special protection than other communities in society 1.1.2 Classification of vulnerable groups in society 1.1.2.1 Women Women are the largest group of vulnerable groups in society (since women account for more than half of the world’s population), thus the issue of women attracts great attention of the international community 1.1.2.2 Children Children are considered one of the most vulnerable social groups and highly protected by the State and society Children are a vulnerable social group whohave special needs and rights to special care and protection 1.1.2.3 People with HIV / AIDS Currently, the awareness of mankind about the mechanism of HIV transmission has been raised Protecting and promoting the Human Rights of HIV/AIDS-positive people is an integral element in the prevention of HIV/AIDS transmission 1.1.2.4 People with disabilities People with disabilities are considered one of the largest minority groups in the world and also one of the most vulnerable, because their disability puts them at a disadvantage in every aspects of social life 1.1.2.5 Migrant workers Migrant workers are considered legally registered if they are allowed to enter, stay and have a paid job in the country, where they work, under the national law and international agreements of which that country is a signatory They are considered undocumented when they not meet these conditions 1.1.2.6 Minorities “Minorities are who, due to their physical or cultural characteristics, are separated from others in society where they live because of discrimination and inequality, and thus, they consider themselves to be the target of the collective discrimination" It can be seen that this definition includes both objective and subjective criteria: membership of a minority group is determined objectively by the society, based on physical or behavioral characteristics of an individual; it is also subjectively applied by its members who can use their State as a basis for the identity or solidarity of the group 1.2 Concept of Personal Rights of vulnerable groups in society “If understood in an objective sense, the Personal Rights of vulnerable groups are a combination of legal regulations issued by the State, which clearly specify that individuals, including vulnerable groups, all have common rights to identify attached to themselves, besides specific provisions associated with the special nature of vulnerable group, and that is the basis for each individual in vulnerable group to exercise their own rights But if understood in the subjective sense, rights to identify of vulnerable groups are the subjective Civil Rights attached to each individual in the vulnerable groups defined by the State for each individual in vulnerable groups and cannot be transferred to other people, unless otherwise provided by law” 1.3 Theoretical and practical basis for recognizing and ensuring the Personal Rights of vulnerable groups in society 1.3.1 Theoretical basis for recognizing and ensuring the rights identity of vulnerable groups in society Firstly, in terms of group rights - basic perceptions Although the main subject of Human Rights is generally individuals, when it comes to Human Rights, it is basically about individual rights Second, the importance of recognizing and ensuring the rights of vulnerable groups in society In each country and region, due to social and historical reasons, there are always groups of people with different levels of development, social status and capacity Eventually, we are all parts of humanity, all equal in Human Rights and freedom, including the Personal Rights 1.3.2 Practical basis for recognizing and ensuring the Personal Rights of vulnerable groups in society The issue of protecting Human Rights and the Personal Rights of vulnerable groups must start from awareness to action The process from awareness to reality involves many different stages, namely, acknowledging, legislation, enforcement and judgment 1.4 A brief history of Vietnam's civil law on Personal Rights of vulnerable groups in society 1.4.1 Thoughts and development of Personal Rights of vulnerable groups in Vietnam before 1995 During the feudal period, from the Ly-Tran dynasty with Dai Viet complete annals (1042) to the Tran Dynasty which famous for the Dien Hong Conference (1284), humanity had been noticeably portrayed 1.4.2 Personal Rights of vulnerable groups in Vietnam under Civil Code 1995 Only from 1986 to 2005, Vietnam has issued over 13,000 legal documents of all kinds, including more than 40 codes and laws, over 120 ordinances, nearly 850 Government documents and over 3,000 documents of ministries and other institutions in different areas 1.4.3 Personal Rights of vulnerable groups in Vietnam under Civil Code 2005 Civil Code 2005 was enacted on June 14, 2005, come into force on January 1, 2006, with the task of protecting the legal rights and interests of individuals, organizations, the interests of the State and the public interests; ensuring equality and legal safety in civil relations, creating conditions to meet the material and spiritual needs of the people, stimulating socio-economic development 1.4.4 Personal Rights of vulnerable groups in Vietnam under Civil Code 2015 After 02 amendments, legislations on Personal Rights in Civil Code 2015 has been improved with more specific regulations than the Civil Code 2005 to address practical shortcomings as well as to specify Constitution 2013 on recognizing, respecting, protecting and ensuring Human Rights, Civil Rights of citizens in general, and the rights of vulnerable groups in society in particular 1.5 International law on the rights in identity of vulnerable groups in society 1.5.1 Personal Rights of women The CEDAW Convention is one of the nine most important international conventions on Human Rights of the United Nations However, CEDAW does not establish new Human Rights for women, the Convention sets out measures to eliminate discrimination against women in having the Human Rights that they have been granted in previous international treaties 1.5.2 Children's Personal Rights CRC is an international treaty of The United Nations on Human Rights, and also the most primary and comprehensive international document on children's rights CRC establishment is based on four foundational principles 1.5.3 Personal Rights of people with HIV / AIDS Personal Rights in particular, Human Rights of people with HIV / AIDS in general have not been stipulated in international treaties, but only mentioned in some typical documents such as: Declaration on Key Actions for Further Implementation of the Programme of Action of the International Conference on Population and Development (1999); 1.5.4 Personal Rights of people with disabilities The International Convention on the Rights of Persons with Disabilities (ICRPD) was passed by the General Assembly of The United Nations in March 2007 This was the first Human Rights treaty of the United Nations in the 21st century, which marked a turning point in the fight for the rights of people with disabilities in the world Third, the right to identify and redefine ethnicity of vulnerable groups Ethnic identification is the practice of identifying for the first time for an individual (commonly applied to newborns – a part of vulnerable groups - in the birth registration procedure); redefining ethnicity is the ethnicity re-identification for individuals who have been previously recorded with another nationality, which means a lot to migrant workers Fourth, rights of vulnerable groups to images Individual rights to images are Personal Rights attached to each individual recognized and protected by law, whereby individuals are allowed to use images and permit others to use their images Fifth, the right to gender redefining and reassignment of vulnerable groups The principle of gender reassignment is: Ensuring that each person with disabilities could live with his or her true gender identity; gender reassignment must be conducted in principles of willingness, objectivity, honesty, science and self-responsibility before the law for redefining gender, confidentiality of the information related to the people who have been redefined Sixth, the right to nationality of vulnerable groups Nationality is an identity factor attached to each individual that shows the connection of an individual to the country of which the individual holds the nationality, as well as vulnerable groups’ 2.2.2 Personal Rights of vulnerable groups in society relating to the person value in society 11 - The right to protection of honor, dignity and prestige (Article 34 of Civil Code 2015) Vulnerable groups in society require protection of their honor, dignity and prestige in order to continuously contribute, participate in community integration, dedicate to society and become useful people - The right to private life, personal secrets and family secrets (Article 38 of Civil Code 2015) The right to protection of private life, personal secrets and family secrets is sincerely crucial because information on private life, personal and family secrets of vulnerable people is sensitive thing, which might be the cause of their "vulnerability" in the community The right to respect and protection of such secrets is necessary and reasonable 2.2.3 Personal Rights of vulnerable social groups relate to the human body - The right to life and the right to safety in life, health and body (Article 33 of Civil Code 2015) Personal life, health, and body are the most important and invaluable factors to each person Therefore, the right to life and the right to safety of life, health and body of individuals are primary Personal Rights that are prioritized in care and protection by the State and competent agencies - The right to donate or receive human tissues, organs, and to donate or receive corpses (Article 35 of Civil Code 2015) Originating from the needs of individuals as well as the purpose of sharing with the community, the law gives people the right to donate, receive tissues and organs human body and donate, take corpses due to 12 difficulties in the diseases treatment or other medical reasons Accordingly, individuals have the right to make decisions on their own bodies and corpses after death 2.2.4 Personal Rights of vulnerable groups in society related to marriage and family - The right to identity in marriage and family (Article 39 of Civil Code 2015) In addition to the right to life, to protection of spiritual values, health and body, vulnerable groups in society also have the right to "seek happiness", therein, their Personal Rights in marriage and family relations also need to be guaranteed 2.2.5 Personal Rights of vulnerable groups in society related to individual labor and creative activities Labor is an essential activity, an existence mode of human beings Therefore, the right to work is a natural right which is inextricably linked with "right to life" of each individual For vulnerable groups such as children, women, and people with disabilities, in the working process of these subjects, there are separate regulations to protect, support and encourage them to participate in work 13 Chapter CURRENT STATUS OF THE IMPLEMENTATION AND PROTECTION OF PERSONAL RIGHTS FOR VULNERABLE GROUPS IN SOCIETY 3.1 Achievements in applying and protecting Personal Rights of vulnerable groups in society 3.1.1 In terms of protecting Personal Rights for children More specifically, ensuring the Human Rights of health and body according to Article 33 of Civil Code 2015 is constantly put in priority, free medical examination and treatment programs, measures to reduce infant mortality and malnutrition have been implemented quite effectively (about 8.4 million children, accounting for over 90% of children under years old, received free health care cards) 3.1.2 In terms of protecting Personal Rights for women At the same time, Viet Nam has also accomplished encouraging achievements in ensuring women's rights The proportion of women in the National Assembly of Vietnam has increased to 26.72%, higher than the global average of 22.3%1, ranking 4th in Asia –Pacific area 83% of working-age women are employed 3.1.3 In terms of protecting Personal Rights for ethnic minority group Vietnam is implementing two national target programs, namely the Program on Supporting Production Land, residential land, housing and clean water for poor ethnic minorities households with difficult life (Program 134) and Socio-Economic Development Program for Further detail: http://vneconomy.vn/ty-le-nu-dai-bieu-quoc-hoi-viet-nam-cao-hon-trung-binh-toan-cau20180118111331779.htm 14 Extremely Difficult Communes in Ethnic Minority and Mountainous Areas (Program 135) 3.1.4 In terms of protecting Personal Rights for people with disabilities The State of Vietnam consistently creates favorable conditions for Vietnamese people with disabilities to exercise their rights better and better Many people with severe disabilities, war invalids, sick soldiers, and those affected by Agent Orange, including children, are supported and fostered by the State 3.1.5 In terms of protecting Personal Rights for migrant workers According to statistics by August 2011, the number of expatriates working in Vietnam was more than 74,000 Foreign labor coming to Vietnam to work has nationalities of more than 60 countries, of which Asian accounts for more than 58% including Chinese, Japanese, Korean, Malaysian, about 28.5% are European citizens and the rest are from other countries 3.1.6 In terms of protecting Personal Rights for people with HIV / AIDS In accordance to the data of the Ministry of Health, Vietnam has done HIV test on a total of more than 760 000 pregnant women, increasing from 32% in 2009 to 36% in 2010 The number of people receiving antiretroviral treatment by December 2010 in Vietnam was 42 492 Vietnam has currently provided treatment to about 52% of HIV- 15 positive people who are eligible for treatment When people with HIV are in better health, they can handle their own finance better2 3.2 Drawbacks in applying and protecting Personal Rights of vulnerable groups in society 3.2.1 Sexual abuse, invasions of images, privacy, personal secrets and exploitation in children becomes prevalent and serious issues According to statistics of the Criminal Police Department, General Police Department, Ministry of Public Security, from 2014 to 2016, there were 4,147 cases of child sexual abuse reported nationwide, with 4,320 criminals and 4,140 victims; calculated separately for the first months of 2017, 696 cases of child sexual abuse were detected, with 716 convictions 3.2.2 Physical abuse, domestic violence, sexual discrimination against women still exists and tends to be more complicated Out of 157,859 domestic violence cases detected (from 20112015), it was found that: Victims were women (from 16 to 59 years old) in 117.206 cases (74.24%); children in 17,586 cases (11.14%); and elderly people in 14.017 cases (8.91%) Statistics also showed that about 58% of married women reported to have experienced at least one of the three types of violence - physical, sexual and mental - throughout their lives 3.2.3 Access to some of the basic Personal Rights of ethnic minorities is confronting manifold problems http://www.wpro.who.int/vietnam/mediacentre/releases/2011/20111201/vi/ 16 By 2012, the literacy rate of people aged 10 and over of ethnic minorities was 83.8% - a significant number compared to the rate before 1975 Some of the ethnic minorities with low illiteracy rate are Tay: 5.1%, Muong: 5.5% The primary completion rate of the Northern mountainous area reaches 89.4%; the number is 83.65% and 86.4% in the Central Highlands and the South West respectively3 3.2.4 Stigma and discrimination against people with disabilities still exists, the community integration process of people with disabilities maintains excessively difficult It is the stigma and discrimination of the family and community that is the main culprit behind the hardship in marriage of the disabled To many people, the marriage of people with disabilities should not be stimulated and will cause difficulties in life for the disabled themselves 3.2.5 Lacking regional specific guidance on protection of Personal Rights of migrant workers in Vietnam leads to difficulties in access to rights According to statistics by August 2011, the number of expatriates working in Vietnam was more than 74,000 Foreign labor coming to Vietnam to work has nationalities of more than 60 countries, of which Asian accounts for more than 58% including Chinese, Japanese, Korean, Malaysian, about 28.5% are European citizens and the rest are from other countries 3.2.6 People with HIV/AIDS still suffer from the violation of their rights to privacy and confidentiality, stigma and discrimination http://nguoibaovequyenloi.com/User/ThongTin_ChiTiet.aspx?MaTT=132201653735270172&MaMT=22 17 that seriously affects their daily life, labor and community integration In the first nine months of the year, there are 6.883 newly HIVinfected people detected nationwide, 3.484 people getting AIDS and 1.260 HIV-positive people died It is estimated in 2017 that there will be approximately 9,800 new HIV infection cases and 1,900 deaths from HIV Sexual transmission continues to make up a large proportion in recent years 18 Chapter ORIENTATION AND SOLUTION TO IMPROVE THE LAW ON PERSONAL RIGHTS OF VULNERABLE GROUPS IN SOCIETY 4.1 Orientation to improve the law on Personal Rights of vulnerable groups in society 4.1.1 Incorporating the views of the Communist Party, policies and laws of the State in to law timely, thoroughly and properly Incorporating the Party's guidelines timely, thoroughly and properly; specifying provisions in the Constitution on building The State of the Socialist Republic of Vietnam ruled by law, of the People, by the People and for the People; ensuring Human Rights, rights to freedom and democracy of citizens; building a socialist-oriented market economy, developing socio-cultural system, maintaining national defense and security 4.1.2 Ensuring the consistency and uniformity in the legal system in respect of ensuring Human Rights and Personal Rights Consistency and uniformity are required in the legal system generally and for each legal document particularly The legal system is composed of different elements, in order to maintain the unity of the legal system, there must be no contradictions and overlapping of the components 4.1.3 Developing and improving laws on Personal Rights of vulnerable groups compatible with international documents that Vietnam has signed and participated in 19 As a member of international economic organizations, international treaties, international agreements, we are under obligation to fully comply with our international commitments, including making our laws compatible especially to our commitments to world economic organizations and multilateral international treaties which is a necessity to enhance Vietnam's position and prestige on the world; 4.1.4 Inheriting the humanity, especially the rights of the disadvantaged on the ground of strict protection and law enforcement Especially under the impact of the current competitive market mechanism, the task of ensuring Human Rights must maintain and promote our humanistic tradition In particular, respecting, protection and implementation of rights for vulnerable groups (women, children, the elderly, people with disabilities, the poor, ) play a key role in ensuring Human Rights 4.2 Solution to complete and improve the laws on Personal Rights of vulnerable groups in society 4.2.1 Solution to perfect the law on Personal Rights of vulnerable groups in society Firstly, completing the provisions of Civil Code regarding the right to images of vulnerable groups Based on the research on the contents prescribed in the existing Civil law of Vietnam on Personal Rights in general and the rights of vulnerable groups in particular, the author proposes revisions, supplementation and completion to Provision 1, Article 32 of Civil Code 2015 stipulating the right of individuals to images 20 Secondly, developing and completing sector specific legal documents to ensure the Personal Rights of vulnerable groups in society In terms of children: It is necessary to improve the legal system of rights, ensure the comprehensiveness, uniformity, consistency among Civil Code 2015, Law on Children 2016 and other sector specific laws, eliminate contradiction, overlapping as well as specify the laws, and ensure the feasibility of the whole legal system In terms of women: For women suffering from domestic violence, gender discrimination, the authorities need to wholly review legal documents to incorporate gender equality so that women have an equal position, at the same time, to classify regions and specific characteristics of each ethnic group for specific orientations In terms of ethnic minority groups: In addition to the recognition of Personal Rights stipulated in Civil Code 2015, in the coming time, legal system in general and the law on Personal Rights of ethnic minority groups in particular need to be further improved towards comprehensiveness, efficiency, sustainability and equality In terms of people with disabilities: The laws on people with disabilities should be reviewed, revised and supplemented to provide the best support in power for this vulnerable group in the process of approaching Civil Rights in general as well as Personal Rights in particular, in order for this vulnerable group to develop, integrate into the community and protect themselves In terms of migrant workers: In the coming time, apart from the prescribed regulations in Civil Code 2015, sector specific laws, 21 especially the Labor Code and guiding documents need reviewing, revising and supplementing thoroughly for practicality, especially, regulations concerning the group of foreign workers working in Vietnam (migrant workers in Vietnam) and their Personal Rights must be put on priority In terms of people with HIV/AIDS: Civil Code 2015 in general, Law on prevention and control of viral infections causing human immunodeficiency syndrome (HIV/AIDS) 2006 in particular and guiding documents should be further completed towards respect for human rights, social solutions reducing adverse impacts of HIV/AIDS, and national stability and development Thirdly, amending and supplementing the provisions of Civil laws concerning the statute of limitations for initiating legal actions and the subjects requesting protection of Personal Rights of vulnerable groups It is noted in law that the statute of limitations for initiating lawsuits regarding Personal Rights attached to property and Personal Rights not associated with property, however, Provision 2, Article 184 of Civil Proceeding Code 2015 stipulated that the Court only applies the limitations if the involved parties have requested before the firstinstance court issues judgments or decisions, this rule shows the right of parties to request the courts to apply the statute of limitations for resolution 4.2.2 Solution to improve the effectiveness of implementation of law on Personal Rights of vulnerable groups 22 the Firstly, strengthening the duty, power, and coordination combined with the responsibilities of the proceeding authorities and other relevant agencies in protecting the Personal Rights of vulnerable groups Secondly, further enhancing the participation of people in the legislative process and raising the responsibility of writing agencies in acquiring and explaining individual and organizational comments Thirdly, promoting propaganda, education to raise social awareness and build a legal culture on protecting Human Rights for vulnerable groups Fourth, internationally cooperating in establishing a legal framework on protecting Personal Rights for vulnerable groups 23 CONCLUSION The administration of the State in assuring the rights and interests of vulnerable groups in society is considered a complicated issue related to politics, economy and society Vietnam has made important efforts in improving laws and policies on Personal Rights of vulnerable groups in society With the policy of willingness for dialogue and cooperation on human rights, considering it an opportunity for frank and constructive exchange on Human Rights issues of mutual concern, Vietnam has established regular bilateral dialogue mechanisms on Human Rights with several countries and partners such as the US, EU, Australia, Norway and Switzerland These dialogue mechanisms have achieved positive results, not only enhancing understanding and promoting Vietnam’s partnerships, but also acting as the best channel of communication to exchange experiences of each party and solve many Human Rights issues of mutual concern 24 BIBLIOGRAPHY The Human resources of Social Science Journal, No 11 (66) November - 2018, "Some theoretical issues on Personal Rights of vulnerable groups in society", p.20 – p.29; The Democracy and Law Journal, No 12 (321) December 2018, "Current situations of protecting Personal Rights of vulnerable groups in Vietnam", p.39 – p.44 ... change the surname; right to change the name of vulnerable groups By the recognition of the right to have a surname, a name of a vulnerable group, their right to change the family name and name is... social groups relate to individualization First, the right to a surname and a name of vulnerable groups The right to a surname, a name is an important right to identity for each individual in general... with disabilities The State of Vietnam consistently creates favorable conditions for Vietnamese people with disabilities to exercise their rights better and better Many people with severe disabilities,