Make the Civil Code the common law of the legal system

According to the agenda of the 9th session, the National Assembly will listen to the Report on the results of collecting public opinions and plans to absorb and revise the draft Civil Code (amended) and the Report on the examination of the Civil Code (amended) project.

This is a major amendment with the aim of building the Civil Code to truly become the common law of the legal system regulating social relations formed on the principles of freedom, voluntariness, equality and self-responsibility between participating parties, thereby better recognizing and protecting the rights of individuals and legal entities in civil exchanges; contributing to perfecting the socialist-oriented market economic institution, stabilizing the legal environment for socio-economic development after the 2013 Constitution was promulgated.

According to the agenda of the 9th session, the National Assembly will hear reports on the draft Civil Code (amended). (Photo: Nhan Sang/VNA)

Fully and comprehensively institutionalize the Party's viewpoints and policies

At the 8th session of the 13th National Assembly, National Assembly deputies discussed and gave their first comments on the draft Civil Code (amended).

Given the position, importance and great impact of the Code on people's lives, the Standing Committee of the 13th National Assembly passed a Resolution on organizing the collection of public opinions on 10 major contents in the draft Civil Code (amended), from January 5 to April 5, 2015.

At the 9th session, the draft Civil Code (amended) was considered by the National Assembly for the second time after collecting public opinions on 10 major issues of the draft.

According to the Report on the results of collecting public opinions and receiving and revising the draft Civil Code (amended), the majority of opinions assessed that the draft Code was elaborately constructed, fully and comprehensively institutionalizing the Party's viewpoints and policies as determined in the Socio-Economic Development Strategy, the Platform for National Construction in the Transitional Period to Socialism and the Judicial Reform Strategy; concretizing the provisions of the 2013 Constitution on human rights, citizen rights, and building a socialist-oriented market economic institution...

The practical problems and shortcomings raised in the process of summarizing the implementation of the 2005 Civil Code have basically been reasonably resolved in the draft Code.

However, besides positive assessments, there are also many opinions that the draft Code still has many technical errors; some provisions have unclear content, are unreasonable or do not thoroughly resolve problems arising in civil communication practice.

These issues need to be overcome to ensure that the provisions of the Civil Code truly become legal standards in people's conduct and in the activities of competent authorities; to ensure a more favorable, safe, and less risky legal corridor for people, for economic activities in particular, and for the development of the socialist-oriented market economy in general and in international integration.

It should be noted that public ownership is an independent form of ownership.

Ownership form is one of 10 contents put forward for public opinion. There are two basic opinions on this issue.

The majority of opinions agree with the provisions in the draft Law, according to which, in addition to private ownership and common ownership, it is necessary to recognize public ownership as an independent form of ownership.

This type of opinion argues that the Civil Code needs to recognize the form of ownership by the entire people to be consistent with the Constitution (Article 53), consistent with the importance of the object of ownership by the entire people as well as the mechanism for implementing this ownership right.

The second type of opinion suggests that the forms of ownership stipulated in the Civil Code only include private ownership and common ownership. For public ownership, the exercise of the owner's rights to public-owned property has very complicated political-economic factors and should be regulated in specialized laws.

In Vietnam today, there is basically a relatively complete legal system to regulate issues related to the implementation of the people's ownership rights. In case the State brings this property into civil exchange, it must also comply with the principle of equality like other civil entities.

The Government agrees with the above majority opinion and believes that the Civil Code's regulation of the form of ownership by the entire people is necessary to concretize the provisions of the 2013 Constitution on possession, use, and disposal of property owned by the entire people and to create a legal mechanism for the State to exercise the powers of the representative owner of property owned by the entire people in civil relations.

Identify the subject of civil legal relations

There are currently three basic opinions on the subjects of civil legal relations. The majority of opinions agree with the provisions in the draft Code, according to which, the subjects of civil legal relations include individuals and legal entities, while households, cooperatives, and other organizations without legal status are defined by the Civil Code as legal entities through which individuals represent members participating in civil legal relations.

This regulation, on the one hand, still recognizes households, cooperatives, and other organizations without legal status as entities existing in social life, and on the other hand, contributes to resolving practical difficulties and shortcomings related to the participation of these entities in civil relations.

The second type of opinion suggests that the draft Code should continue to recognize households and cooperatives as subjects of civil legal relations like the current Civil Code because these are entities existing in society, participating in many civil legal relations, such as land, electricity, water use relations...; in accordance with the specific economic, cultural, social, family and historical conditions of Vietnam.

The limitations and shortcomings in current legal regulations on households and cooperatives are real, but can be overcome in the process of perfecting the law to create a better legal basis for households and cooperatives to exist and develop.

The third type of opinion argues that the subjects of civil legal relations include individuals and legal entities, and suggests removing all regulations on households and cooperatives from the Civil Code; if necessary, these legal entities can be regulated in relevant laws.

The Government agrees with the above majority opinion. Regarding households, the Government believes that, based on the historical conditions and circumstances of our country, households have an important position and role in participating in production and business in general and agricultural production in particular. The Land Law (from 1993 to present) has always stipulated that households are the subjects to whom the State grants land use rights. On that basis, the 1995 Civil Code and the current Civil Code have specified this issue by recognizing households as subjects of civil legal relations.

However, the practice of law enforcement shows that the law is regulating households in a "static" state, while the relationships within the household, members of the household, representatives, common assets, legal responsibilities of members... often fluctuate (due to separation, merger, birth, death, marriage...). That has given rise to many inadequacies and limitations in regulating civil relations with the participation of households.

Summary of the implementation of the Civil Code shows that households rarely participate in civil legal relations as the subjects of these relations. On the other hand, it is essentially the participation of individual members, because they (head of household or household members) are the ones who have civil rights, obligations and bear unlimited civil liability with all their private assets in civil legal relations in which the household participates. Trial practice also shows that there are almost no plaintiffs or defendants who are households.

Regarding cooperatives, the Government believes that cooperatives are legal entities that have been participating in civil exchanges, playing a certain role in socio-economic development, especially contributing to hunger eradication and poverty reduction in rural, mountainous and disadvantaged areas. However, in terms of the subject of civil legal relations, cooperatives are essentially a group of individuals who associate and participate in civil relations through contracts. Therefore, adjusting the law for this entity through the cooperative contract regime is reasonable, both in accordance with the legal nature and in accordance with the current practice of civil exchanges.

The Draft Code has added cooperation contracts as one of the common types of contracts (from Article 520 to Article 528) to create a legal basis for the organization and operation of this legal entity in practice.

Along with that, absorbing the people's opinions on the need for the draft Code to clarify the legal status of individual members, the common property of members and civil liability arising in civil legal relations with the participation of households, cooperatives, and other organizations without legal status, the Government has directed to revise the regulations on this issue in the direction of: Identifying each member of a household, cooperative, or other organization without legal status as the subject of civil legal relations with the participation of these legal entities.

In case a household using land participates in a civil legal relationship, the determination of the subject is carried out according to the provisions of the Land Law (Article 102). Regulations on separate and distinct bases for determining the common property of members of households, cooperatives and other organizations without legal status (Article 103)...

Other issues regarding the responsibility of competent authorities in protecting civil rights; personal rights of individuals; subjects of civil legal relationships; legal consequences of civil transactions that do not comply with regulations on form; protection of bona fide third parties in case civil transactions are invalid; contract adjustment when circumstances change; interest rates in property loan contracts; statute of limitations... have also been consulted on by the people./.

According to VNA