English - CEDAW Southeast Asia

CEDAW and the Law:
This should be read together with Article 63 of the Constitution: “Male and female citizens have
equal rights in all fields - political, economic, cultural, social and family.”
Legal documents on property rights are gender-neutral. The main law concerning land
is the Land Law, which, save for very few provisions, is also gender-neutral. The Civil Code
provides for rules relating to property and ownership rights in Part II. Chapter XIV of the Penal
Code provides a list of crimes against property in Articles 133-145, such as extorting
property, 665 openly appropriating property, 666 abusing trust to appropriate property, 667 illegally
holding property, 668 and illegally using property. 669 Also, Article 173 of the Penal Code penalizes
“[t]hose who grab and occupy land or transfer the land use right or use land in contravention
of the State’s regulations on land management and use, causing serious consequences…”.
The most discussed issue relating to property is registration of LUCs. This is even
identified by Goal 3 of the VDGs, which seeks to ensure gender equality and women
empowerment and has as one of its targets ensuring that the names of both husband and wife
appear on all LUCs by 2005. There are no impediments in law on the basis of gender relating
to registration of land-use rights. In reality, however, only 19 percent and 15 percent of LUCs
are registered in the woman’s name or in the names of both spouses respectively in
certificates for agricultural land. 670 For residential land, the percentages for registration in the
woman’s name or in the names of both spouses are 22 percent and 18 percent respectively. 671
There are two main laws on the issue of registration of LUCs: the Land Law and
Marriage and Family Law. The Land Law states that where the land-use right is a mutual asset
of a wife and husband, the LUC must state the names of the husband and wife. 672 The Land
Law seeks to attend to the gender bias in registering LUCs; that is, the tendency to register
LUCs only in the name of the husband as he was considered the sole head of household. To
implement the Land Law, the Decree No. 181/2004/ND-CP Of October 29, 2004 On The
Implementation Of The Land Law (Decree on Land Law) provides that the names of both the
husband and the wife must be inscribed in the LUC as common property of the husband and
wife. 673 It further states that, where it is proposed that solely the name of the husband or wife
will appear, there must be a written agreement between the husband and wife to this effect
with certification by the commune, ward or township People's Committees.
292
Article 27(1) of the Marriage and Family Law provides that the land-use right obtained
by husband and wife after their marriage is their common property. The land-use right obtained
before the marriage or inherited by either is common property only if so agreed by both. If
common properties require registration, they must be in the name of both husband and wife. 674
The Decree on Marriage and Family Law provides further details. It states that land-use rights
665
Civil Code, Article 135
666
Ibid., Article 137
667
Ibid., Article 140
668
Ibid., Article 141
669
Ibid., Article 142
670
World Bank Assessment, p. 43
671
Ibid.
672
Land Law, Article 48(3)
673
Decree on Land Law, Article 43
674
Marriage and Family Law, Article 27(2)
Review of key legal documents and compliance with CEDAW