SBLaw would like to provide some information whether the advertisement in local newspaper regarding the notice of the divorce petition filed in foreign Court will be considered legal under the laws of Vietnam.
1.Legal basis:
The Civil Code (Law 33/2005/QH11) is the governing law regulating the legal status, legal standards for the conduct of individuals, legal persons, other subjects and their rights and obligations regarding the civil relations.
Article 38 of the Code provides for the right to personal secrets of an individual. An individual’s rights to personal secrets shall be respected and protected by law. The publication of information and materials on the private life of an individual must be published only with his or her consent, except for cases where the collection and publication of information and materials are made by decision of a competent agency or organization.
Article 42 of the Code provides for the right to divorce stating that both the husband and wife, jointly and severally, shall have the right to request the Court to solve their divorce.
Under Article 74 of the Code, when a person has disappeared for six consecutive months or more, the person with related rights or interests shall have the right to request the Court to issue a notice of search for the person absent from his/her place of residence under the provisions of Civil Procedure.
Under Article 78 the Court, on application from the related person, can declare a person who has disappeared for two consecutive years or more and if there is no reliable information on whether such person is still alive or dead after carrying out the notification and search measures.
In such case the two-year time limit shall be counted from the date the last information of such person is obtained. Further the Article also provides that in the cases where the wife or the husband of a person, who has been declared missing files for a divorce, the Court shall grant the divorce.
Law on Media provides for protection of the freedom of the media and the right of freedom of speech of citizens through media in conformity with the interests of the State and of the people.
Article 10 of this law deals with the matters that the media is not permitted to report. According to this article, the media organizations should consider the following in order to exercise properly freedom of speech through media:
– To abstain from inciting the people to rebel against the State of the Socialist Republic of Vietnam and damage the unification of the people;
– To abstain from inciting the use of violence, from disseminating propaganda relating to war, from creating hatred between ethnic groups and people from different countries, from different countries, from encouraging obscenity, depravity and crime;
– To abstain from disclosing State secrets including military, security, economic, foreign relations, and other secrets stipulated by law;
– To abstain from disseminating information which is untruthful, distorted or slanderous and harmful to the reputation of organizations or the reputation and dignity of citizens.
Resolution No. 02/2005/NQ-HDTP of the Council of Judges of the Supreme People’s Court provides as a guidance of the implementation of provisions of Civil Procedure Code as to settlement procedures in case of the Court of First Instance.
According to Section 8 (7), if the petitioner does not know or does not properly record the address of the defendant, whose rights and obligations relating to records of the petition, the Petitioner shall make the announcement to find information and addresses of persons’ conditions, persons with interests and obligations related.
2. Observations/Remarks:
Based on the legal position, facts and observations, we would like to place before you the following remarks.
- Firstly, foreign person shall advertise in Vietnam only as under the direction of the foreign Court. Under Civil Code, an individual’s information can be disclosed and published in media only with his or her consent. But this case shall fall under the exception as cases where the publication of information is made by decision of a competent agency or organization.
- Secondly, the information that is being published does not fall under the conditions prescribed under Article 10 of the Media Law.
- Even under Vietnamese law, if the Plaintiff does not have proper record of the Defendant’s address, the Plaintiff is permitted to move the court for a direction to issue public notice in the leading newspaper to inform and gather news and information of the Defendant.
In the light of the above, it can be seen and inferred that foreign person has the right to issue notice in the Vietnam News as per the direction of the foreign Court to inform the Defendant about the filing of the divorce petition.
In other words, such a publication shall be considered lawful and shall not be inconsistent with the provisions of the Civil Code, Civil Procedure Code and Media Law of Vietnam.
