LEARNING ENGLISH WITH FDVN'S NEWSLETTER NO. 04/2021

The practical implementation of the provisions on the competence to settle parents and child identification – Part 1

Thực tiễn áp dụng quy định về thẩm quyền giải quyết việc xác định cha, mẹ, con – Phần 1

(Nguyen Thi Suong – FDVN’s Newsletter No. 5)

I. VOCABULARY IN USE:

“Right on parents and child identification is one of the moral rights (“quyền nhân thân”) in the relationship of marriage and family (“hôn nhân và gia đình”), which inherent to each natural person, cannot be transferred to other persons and are protected by law. It is important to determine the parents and child because it leads to a lot of legal issues such as custody (“nuôi dưỡng”), support (“cấp dưỡng”), inheritance… In fact, the identification of parents and children is not only a common child during the marriage period (“thời kỳ hôn nhân”) but also a common child between people who are not in the marriage. At that time, the procedure must be carried out at the competent authority (“cơ quan có thẩm quyền”) under the law provisions. Implementing this provision, not only the persons requesting but also the competent authorities are confused about the competence to settle the parents and child identification.

We build on this analysis to identify the practical implementation of the provisions on the competence to settle the parents and child identification through our practical legal support activities. Thereto, we can see then the legal issues related to the competence, the capacity in participating in the procedures when settling the request of parents and child identification.”

I. VIETNAMESE CURRENT LAW PROVISIONS ON THE COMPETENCE TO SETTLE PARENTS AND CHILD IDENTIFICATION

According to Article 101, Law on Marriage and Family 2014, there are 2 government authorities competent to settle identification of parents and children:  

Firstly, it’s Civil Status Registration Department [1], which is Commune-level People's Committees of places of residence of recognizing or recognized parents or children shall register parents and child recognition.

Secondly, Competent Court [2] settles the identification of parents and children in the following cases:

• There are disputes (“tranh chấp”);
• The person requested for being identified as parents or child has died;
• When a person who requests identification of his/her parents or child dies, his/her next of kin (“thân nhân”) has the right to request a court to identify the parents or child for him/her;
• A person who is not recognized as the parents of a person may request a court to identify that the latter (“con cái”)  is his/her child.

On the other hand, it is stipulated in Article 28 and Article 29 of Civil Procedure Code 2015 on the disputes falling under the courts' jurisdiction (“thẩm quyền của tòa án”) as follows:

“Disputes over determination of fathers or mothers for children; or determination of children for fathers or mothers” is one of the marriage and family-related disputes falling under the courts' jurisdiction; and

“The petition for determination of fathers or mothers for children; or determination of children for fathers or mothers according to legislation on marriage and family” is one of the marriage-and family-related petitions falling under the courts' jurisdiction.

Currently, under the Article 16 of the Circular No. 04/2020/TT-BTP dated May 28, 2020 of Ministry of Justice on elaborating a number of Articles of Law on Civil status and Government’s Decree No. 123/2015/ND-CP dated November 15, 2015 on guidelines for Law on Civil status taking effect (“có hiệu lực”) from July 16, 2020, parents-child relationship recognition and civil status (“hộ tịch”) revision in some special cases are as follows:

“People’s Courts shall decide cases where the wife gives birth or is pregnant during the marriage period but the wife or husband does not recognize the child as their common child or another person wishes to recognize the child as their own as per the law.

If the People’s Court rejects such a case, the civil registration authority shall receive and handle the application for registration of the birth of a child with unknown father or application for father-child relationship recognition, which shall include a written rejection from the Court and proof of the father-child relationship mentioned in Clause 1 Article 14 of this Circular.”

Thus, there is one more case falling under the courts' jurisdiction: “the wife gives birth or is pregnant during the marriage period but the wife or husband does not recognize the child as their common child or another person wishes to recognize the child”. However, the decision for this case can be transferred to the Civil Status Registration Agencies if the Court rejects it.  

II. SOME LEGAL QUESTIONS CALLED RELATED THE COMPETENCE TO SETTLE PARENTS AND CHILD IDENTIFICATION

1. What is the dispute related to the parents and child identification?

Until now, there is no regulation on the definition of “dispute” related to the parents and child identification, which leads to the confusion of the Courts and Civil Status Agencies about the competent to settle when being requested.

To undertand more about the consfusing competence to settle these cases, we will analyze the practical case:

Due to unhappy common life, Ms.  Phan Thi Thanh T and her husband Mr. Duong Van H, from 2010, have been living separately. Then, Ms. T and Mr. Vu Trung TH have a relationship. They have a common child who was born at Hai Phong Maternity hospital on June 09, 2014. His name is Vu Hai PH. Whereby, Ms. T and her husband have not divorced.

Mr. TH and Ms. T have come to the Commune-level People’s Committee where Ms. H resides several times to apply for their child’s birth certificate (“giấy khai sinh”) whose family name is passed from Mr. TH. However, their application was rejected and they were advised by the Civil Status Officers to file a lawsuit at a competent court because there was a dispute arising from their case.  

Not understanding the law provisions and avoiding filing a lawsuit, they agreed that there was no dispute between them. It was determined that PH is their common child and Mr. H had no opinion. In February 2020, Mr. Vu Trung TH filed a lawsuit to the Court to settle this issue so that he could apply for his child’s admission at school.

On March 03, 2020, People’s Court in H.A District, Hai Phong City accepted the case which was “dispute on father identification” in which the status of the involved parties was determined as follows[3]:

• Plaintiff (“Nguyên đơn”): Mr. Vu Trung TH;
• Defendant (“Bị đơn”): Ms. Phan Thi Thanh T.;
• The person with related interests and obligations (“Người có quyền lợi và nghĩa vụ liên quan”): Mr. Duong Van H.

Considering the case of Mr. Vu Trung TH and Ms. Phan Thi Thanh T., the People's Court of H.A District, Hai Phong City determined that Mr. TH was the plaintiff and Ms. T was the defendant. Compared to (“so sánh với”) the Article 68 of Civil Procedure Code 2015, the involved parties in civil lawsuits (“vụ án dân sự”) are agencies, organizations and individuals, including the plaintiffs, the defendants and the persons with related interests and obligations, in which:

The plaintiff in a civil lawsuit is the person that initiates lawsuit or the person for whom the other agencies, organizations and individuals prescribed by this Code initiates the lawsuit to request the Court to resolve the civil lawsuit when he/she holds that the legitimate rights and interests of that person have been infringed (“xâm phạm quyền”) upon.

The defendant in a civil lawsuit is the person against whom the plaintiff initiates a lawsuit or the other agencies, organizations and individuals prescribed by this Code initiates a lawsuit to request the Court to resolve the civil lawsuit when they holds that the legitimate rights and interests of the plaintiff have been infringed upon by such person.

Thereto, we can understand from the determination of the People’s Court in H.A District, Hai Phong City about the status of the involved parties compared to the spirit of Article 68 of Civil Procedure Code 2015 was as follows: “Mr. Vu Trung H files a lawsuit to ask the Court to protect his legitimate rights and interests as he holds that his rights and interest have been infringed by Ms. T”. However, in reality, Mr. TH did not want to file this case as his rights and interests were not infringed by Ms. T. Ms. T agreed that PH is their common child. The question called is that why the competent did not consider Mr. Duong Van H. (Ms. T’s husband) as the defendant while their aim was to determine the father of the child.

This situation calls the issue that it is necessary to define the "dispute" in order to determine the competent to settle; ensure consistency (“sự nhất quán”) in the legal documents, avoid the inadequacies (“những bất cập”) and confusion (“sự nhầm lẫn”) caused by the unclear determination of the status of the involved parties and establishment of the legal relationship between the parties when putting the law provisions into practice.

II. EXPLANATION AND DEMONSTRATION:

Some legal terms related to civil status, marriage and family – Part 1:

1. Civil status (compound noun): Hộ tịch

• Civil status registration (compound noun): Đăng ký hộ tịch
• Civil status book (compound noun): Sổ đăng ký hộ tịch
• Civil status events (compound noun): Sự kiện hộ tịch
• Civil status database (compound noun): Cơ sở dữ liệu hộ tịch
• Civil status extract (compound noun): Trích lục hộ tịch
• Civil status supplementation (compound noun): Bổ sung hộ tịch
• Civil status correction (compound noun): Cải chính hộ tịch

2. Birth certificate (compound noun): Giấy khai sinh
3. Marriage certificate (compound noun): Giấy đăng ký kết hôn
4. Native place (compound noun): Quê quán
5. Guardianship registration (compound noun): Đăng ký giám hộ
6. Registration of parent and child recognition (compound noun): Đăng ký nhận cha mẹ con

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