Transcription

1 IOM 이민정책연구원 - 대한변호사협회 공동주최 국제심포지엄 아시아 내 국제결혼에 관한 법과 제도의 이해 International Symposium on Legal Systems for International Marriage in Asia

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3 IOM 이민정책연구원 - 대한변호사협회 공동주최 국제심포지엄 아시아 내 국제결혼에 관한 법과 제도의 이해 International Symposium on Legal Systems for International Marriage in Asia 프로그램 10:00~10:10 환영사 한효근 부원장(IOM 이민정책연구원) 위철환 협회장(대한변호사협회) 10:10-10:15 행사취지/참석자 소개 조영희 박사(IOM 이민정책연구원) 세션 1 송출국 이영임 변호사(대한변협 다문화가정법률지원위원회 부위원장) 10:15-11:30 발표 11:30-12:00 토론 및 질의응답 1 도 띠 메이 한 박사(베트남 호치민시대학교 법과대학) 베트남의 국제결혼관련 이슈 : 베트남과 한국 간의 사법지원협약설립 제안 2 골다 미라 로마 변호사 필리핀의 결혼이주 : 법적 정책적 규정, 대응 그리고 한계 3 텝 펀루 변호사(캄보디아 대학교 법과대학) 캄보디아인과 외국인 간의 결혼형식과 절차 1 이정훈 변호사 (대한변협 다문화가정법률지원위원회 위원, 변호사 이정훈 법률사무소) 2 로사 앤젤리카 수녀(천주교 구리 이주센터 EXODUS) 3 조영희 박사(IOM 이민정책연구원) 12:00-14:00 오찬 세션 2 수용국/국제기구 정기선 실장(IOM 이민정책연구원) 14:00-15:40 발표 15:40-16:20 토론 및 질의응답 1 임동번 변호사(대한변협 다문화가정법률지원위원회 위원, 법무법인 원전) 한국 국제결혼의 사회적 쟁점과 법제도 분석: 아시아 국가 간 협력의 모색 2 요코 요시다 변호사(일본 시민교도법률사무소) 일본 국제결혼의 법적 현황과 쟁점 3 그레이스 쿠오 슈친 교수(국립성공대학교 노스웨스턴법과대학) 대만의 결혼이주정책과 법규, 그리고 그에 따른 사회적 변화 4 플로리안 포스터(IOM 베트남) 동아시아 국제결혼이주 : 이주여성 현황과 국제기구 역할 1 박정해 변호사((대한변협, 법률사무소 허브) 2 허윤정 변호사(대한변협 다문화가정법률지원위원회 위원, 법무법인 지엘) 3 정도희 교수(국립경상대학교 법과대학) 4 황정미 박사(고려대학교 아세아문제연구소) 16:20-16:40 휴식 16:40-17:30 종합토론 17:30-17:35 폐회사 홍일표 변호사(대한변협 다문화가정법률지원위원회 위원장) 17:35-17:45 전체 기념사진 촬영

4 1 베트남의 국제결혼관련 이슈: 베트남과 한국 간의 사법지원협약설립 제안 Some Issues of Marriages with Foreigners in Vietnam: A Suggestion of Constructing a Justice Assistance Treaty on Civil Matters between Vietnam and Korea 01 도 띠 메이 한 박사 (베트남 호치민시대학교) / Dr. Do Thi Mai Hanh (Ho Chi Minh City University) 2 필리핀의 결혼이주: 법적ㆍ정책적 규정, 대응 그리고 한계 Marriage Migration in the Philippines: Legal and Policy Provisions, Options and Limitations 29 골다 미라 로마 변호사 / Atty. Golda Myra R. Roma 3 캄보디아인과 외국인 간의 결혼형식과 절차 Formality and Procedure for the Marriage between Cambodian and Foreign Nationals 57 텝 펀루 변호사 (캄보디아대학교) / Atty. TEP Punloeu (University of Cambodia) 4 한국 국제결혼의 사회적 쟁점과 법제도 분석: 아시아 국가 간 협력의 모색 Analysis on Social Issues and Legal System of International Marriage in Korea: to Further Cooperation among Asian Countries 71 임동번 변호사 (대한변협/법무법인 원전) / Atty. Dongbun Im (Korean Bar Association, Law Firm Won Jon)

5 목 차 5 일본 국제결혼의 법적 현황과 쟁점 The Present Situation and Issues from the Legal Perspective on International Marriage in Japan 93 요코 요시다 변호사 (일본시민교도법률사무소) / Atty. Yoko Yoshida (Shimin-Kyodo Law Office) 6 대만의 결혼이주정책과 법규, 그리고 그에 따른 사회적 변화 Policy, Regulation and Societal Change of Marriage Immigration in Taiwan 119 그레이스 쿠오 슈친 교수 (대만 국립성공대학교) / Prof. Grace Kuo Shu-chin (Taiwan National Cheng Kung Univsersity) 7 동아시아 국제결혼이주: 이주여성 현황과 국제기구 역할 International Marriage Migration in East Asia: The Situation of Migrant Women and the Role of International Organizations Focus on IOM 143 플로리안 포스터 (IOM 베트남) / Chief of Mission, Florian Gu nter Forster (IOM Vietnam)

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7 01 베트남의 국제결혼관련 이슈: 베트남과 한국 간의 사법지원 협약설립 제안 Some Issues of Marriages with Foreigners in Vietnam: A Suggestion of Constructing a Justice Assistance Treaty on Civil Matters between Vietnam and Korea 도 띠 메이 한 박사 (베트남 호치민시대학교) / Dr. Do Thi Mai Hanh (Ho Chi Minh City University)

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9 베트남의 국제결혼관련 이슈: 베트남과 한국 간의 사법지원협약설립 제안 Some Issues of Marriages with Foreigners in Vietnam 01 Some Issues of Marriages with Foreigners in Vietnam: A Suggestion of constructing a Justice Assistance Treaty on Civil Matters between Vietnam and Korea Dr. Do Thi Mai Hanh (Ho Chi Minh City University) Overview of International Marriage in Vietnam Vietnam has a rather long history on the issue of marriage relationships with foreigners. 1) This phenomenon has usually occurred through colonies, war, economic development and cooperation, cultural exchanges and international integration. Initially, several marriages between Vietnamese and French were being constituted during the end of the 19 th Century and the first half of the 20 th Century when the French Empire colonized Vietnam. Then, from the war between the United States with Vietnam in the 1970s of the 20 th Century, it appeared marriages between Vietnamese women and Americans or Koreans in the South of Vietnam. After that, in the beginning of the 1980s when Vietnamese were re-building the country, marriages between Vietnamese and Russians are considerably established. This was a result of assistance as well as of cooperation between Vietnam and the Soviet Union. 2) During the period , Vietnam s pursuit of an alternative type of economy caused some changes in the socialist features of the Vietnamese legal system. With the launch of the policy of Renovation (Doi Moi) in 1986, Vietnam initiated a reform of the regime of economic management from a bureaucratic subsidised mechanism to a cost accounting 1) Trinh Thi Kim Ngoc, Thực Trạng Hôn Nhân của Phụ Nữ Việt Nam với Người Nước Ngoài và Những Vấn Đề Đặt Ra Hiện Nay (15 June 2013) assessed at 15 June [Facts of Marriages between Vietnamese Women and Foreigners and Upcoming issues (Part 1)]. 2) See Trinh Thi Kim Ngoc, above n 1. 3

10 IOM 이민정책연구원 - 대한변호사협회 공동주최 국제심포지엄 아시아 내 국제결혼에 관한 법과 제도의 이해 mechanism in a centrally planned economy, 3) and then transformed the centrally planned economy into a socialist-oriented 4) multi-sectored 5) market economy. Following this, modern civil relationships in terms of relationships of marriage, commerce, inheritance, house ownership rights (including marriages) with participation of foreigners have been visibly increased after the year of 1986 when Vietnam carried out Doimoi (Renovation) process. 6) Of those relationships, marriage relationships with foreign nationals have considerably arisen and developed in Vietnam in around the 1990s following the renovation and integration in Vietnam. 7) Before 1999, marriages between Vietnamese and foreigners are not common. Then, this phenomenon becomes more and more popular in subsequent time. Due to the increase of marriages with foreigners, the state promulgated in this period fairly many written laws to adjudicate those marriages i.e. Decree No.12/HDBT dated 1 February, 1989 on Process of registration of marriages between Vietnamese and foreigners; the 1993 Ordinance on Marriage and Family between Vietnamese and Foreigners... 8) According to statistics in between 1 January, 1995 and 31 December, 2010, in Vietnam, there were cases in which Vietnamese citizens got married with foreigners or with Overseas Vietnamese citizens. 9) Of this data, statistic shows 80 percentages of Vietnamese citizens in marriages are women. In those marriages, 11 percentages of marriages are 3) Dang Cong San Viet Nam, 'Nghi Quyet Dai Hoi Dai Bieu Toan Quoc Lan Thu Sau' (1986) [Communist Party of Vietnam, Resolution of the 6th National Representative Congress of the Communist Party of Vietnam (1986)]. 4) Based on the article of Ha Vi Luu viz. Vietnam: Industrialization Viewed from the Interplay between Productive Forces and Relations of Production to explain the socialist oriented market economy, Gillespie declares that the market economy following a socialist orientation is a necessary transition stage on the road to socialism : John Gillespie, 'Changing Concepts of Socialist Law in Vietnam' in John Gillespie and Pip Nicholson (eds), Asian Socialism and Legal Change: The Dynamics of Vietnamese and Chinese Reform (2005) 45, 57. 5) See Dang Cong San Viet Nam, 'Nghi Quyet Dai Hoi Dai Bieu Toan Quoc Lan Thu VII cua Dang: Thong qua Chien Luoc On Dinh va Phat Trien Kinh Te - Xa Hoi Den Nam 2000' (1991) [The Communist Party of Vietnam, Resolution of the 7th National Representative Congress of the Communist Party: Passing the Strategies of Economic-Socio Stability and Development towards year 2000 (1991)]. In this Resolution, the socialist-oriented multi-sectored market economy includes many economic sectors in which state-owned enterprises reserve a leading role. Collective economic sector continues to be developed. Individual economic sectors, which still exist in large numbers, gradually do cooperative business voluntarily, democratically, and effectively. Private capitalist economic sectors are allowed to do business in the fields which are beneficial to the people and the country. State capitalist economic sector is developed under many forms. Family economic sector is encouraged to develop strongly but are not considered as an independent economic sector. Many forms of ownerships mix and interweave to form plentiful economic organizations. They are self-controlled and allied, cooperative and competing in production and business. 6) Thi Mai Hanh Do, Doctor thesis Evaluation of the Applicability of Common Law Approaches to Precedents in Vietnam (2011) 7) 8) Both Decree No.12 and the 1993 Ordinance are now invalid. 9) See Materials of the National Meeting on Marriage and Family with foreign elements organized on 22 April, 2011 in Can Tho City. 4

11 베트남의 국제결혼관련 이슈: 베트남과 한국 간의 사법지원협약설립 제안 Some Issues of Marriages with Foreigners in Vietnam 01 with Chinese citizens, 30 percentages with Taiwan citizens (China), 14 percentages with Americans and 13 percentages of occupancy belonged to Korean citizens... 10) From 2007 to 2010 numbers of marriages with foreigners has national-widely in which data is collected from sixty-three provinces increased quickly. The number of marriages with foreigners in the years of 2007, 2008, 2009 and 2010 (4 years) are 9468, 9654, and respectively. 11) Among regional areas, in the respective period, the leading provinces with higher number of marriage cases with foreigners can be enumerated are Ho Chi Minh City (3509 cases), Ha Noi Capital (796 cases), Dong Nai Province (784 cases), Hai Phong Province (721 cases), Vinh Long Province (557 cases), Khanh Hoa (414 cases), Tien Giang Province (406 cases). 12) Observing the most leading area, Ho Chi Minh City, in the most recent data, that is, from the years of 2011 and 2012, it can be seen that registration of marriages with foreigners has remained in high number. Indeed, in Ho Chi Minh City, 3024 cases were registered in ) and 2440 cases were in ) From the above-mentioned data, in four years ( ) there were only 3509 cases of international marriages registered in Ho Chi Minh City. In two years later, the number of marriage cases has increased to Additionally, marriages between Vietnamese and foreigners have mainly occurred in Vietnam, marriages between them have partly been organized in foreign countries. For being recognized as a legal marriage, couple who got married abroad must carry out compulsory procedure, that is, being noted in Marriage Book in the Department of Justice. A complete picture of international marriages in Vietnam, thus, needs to be considered in an aspect of noting marriages between Vietnamese and foreigners which were conducted by foreign competent authorities. The number of cases noted into Marriage Registration Books is fairly considerable by following data collected from several provinces between 2005 and 2010: 15) 10) Ibid No.9, Materials of the National Meeting 11) Ministry of Justicec, STP-03 Appendix on Statistics of Civil status activities in 2010 (data from 1 October, 2009 to 30 September, August, ) Ibid, Ministry of Justice 13) Statistics on registration of marriages with foreigners in 2011 issued by Department of Justice of Ho Chi Minh City (from 1January 2011 to 31 December, 2011) 14) Statistics on registration of marriages with foreigners in 2012 issued by Department of Justice of Ho Chi Minh City (from 1January 2012 to 31 December, 2012) 15) See Materials of National Meeting on Marriage and Family with foreign elements organized at 22 April, 2011 in 5

12 IOM 이민정책연구원 - 대한변호사협회 공동주최 국제심포지엄 아시아 내 국제결혼에 관한 법과 제도의 이해 Regional areas The number of marriages with foreigners (cases) The number of marriages with foreigners noted (cases) Ho Chi Minh City Can Tho Province Ca Mau Province Bac Lieu Province Soc Trang Province Dong Thap Province Steadiness in quantity of marriages with foreigners in Vietnam proves the fact in Vietnam and step by step makes marriages between Vietnamese and foreigners become popular in Vietnam and change the thinking of Vietnamese. For instance, before 1999, majority of Vietnamese citizens might feel shamed or hesitated to get married with foreigners. After that, many Vietnamese brides are more confident and even proud of their marriages with foreigners. 16) As shown, it is aware that international marriage tends to be a trend of society in international integration and also a proper demand of people. To create good condition for international marriages between Vietnamese and foreigners, there were a series of written law to be passed in the period right after 1999 such as the 2000 Marriage and Family law, Resolution No. 01/2003/NQ-HDTP dated 16 April, 2003 on guidelines of the Supreme Court Judge Council on law application addressing civil, marriage and family disputes Decree No. 68/2002/ND-CP dated 10 July, 2002 on marriage relationships with foreign elements, the 2005 Civil Code (hereafter called Decree No. 68), Decree No. 69/2006/ND-CP dated 21 July, 2006 on amendment and supplement of several articles of Decree No. 68 (hereafter called Decree No. 68) and some related written law. 17) Current Status of International Marriages As studied as above, international marriages in Vietnam have started in history, gradually developed in 1990s and become common phenomenon since the year of Currently, international marriages become an inseparable phenomenon of social life in Vietnam. To give understanding on marriages with foreigners in Vietnam, spouses home countries, Can Tho Province. 16) See Mai Xuan Hai, Bachelor Dissertation, Marriages with foreigners: Practice and Solutions (2005) ) At present, Decree No. 68 and Decree No. 69 are both no longer valid since 5/

13 베트남의 국제결혼관련 이슈: 베트남과 한국 간의 사법지원협약설립 제안 Some Issues of Marriages with Foreigners in Vietnam 01 gender, residential location, education, occupation, ages of Vietnamese citizens will be analysed below. Spouses home countries, gender and residential location of Vietnamese citizens. Vietnamese women are main subjects taking part in marriage relationships with foreigners who obtained nationality from more than 50 nations having international marriages with Vietnam. 18) However, in practical, the current trend of international marriages tends to be focused into several countries as follows: Taiwan, Korea, the United States, 19) Australia... Those can be seen through data collected from statistics on marriages with foreigners in the period of several Departments of Justice and Summary Report done by Ministry of Justice to carry out the Instruction No. 03/2005/CT-TTg on the increase of management of marriage and family relationship with foreigners in five-year implementation (from ). For instance, in Soc Trang Province, there were cases of marriages with foreigners including cases of marriage registration and 67 cases of noted marriages. In cases of marriage registration, Vietnamese female citizens occupied cases while Vietnamese male citizens just remained in 176 cases. Foreigners in marriage relationships in this province were mainly from Taiwan (825 cases), the Unite States (632 cases), Canada (210 cases), Korea (29 cases)... 20) In Vinh Long Province, there were cases of marriages with foreigners including cases of marriage registration and cases of noted marriages. In cases of marriage registration, Vietnamese female citizens occupied cases while Vietnamese male citizens just remained in 246 cases. Foreigners in marriage registration in this province were mainly from Taiwan (1.614 cases) while in noted marriages with Koreans occupied 1248 cases. 21) In Dong Thap Province, there were cases of marriages with foreigners including cases of marriage registration and 585 cases of noted marriages. In cases of 18) Dam Trung Thanh, Bachelor Dissertation, Marriages with foreign elements: Practice and Solutions (2012) 36; See Mai Xuan Hai, above n 16, ) Please note that foreign party in the marriage relationship from the United States are mainly overseas Vietnamese citizens who have resided in the United States. 20) Statistics on Marriages with foreigners in the period provided by Department of Justice of Soc Trang Province. 21) Statistics on Marriages with foreigners in the period provided by Department of Justice of Vinh Long Province. 7

14 IOM 이민정책연구원 - 대한변호사협회 공동주최 국제심포지엄 아시아 내 국제결혼에 관한 법과 제도의 이해 marriage registration, Vietnamese female citizens occupied cases while Vietnamese male citizens just remained in 55 cases. Foreigners in noted marriage in this province were nearly mainly from Korea (579 cases). 22) In Binh Duong Province, there were 906 cases of marriages with foreigners including 837 cases of marriage registration and 69 cases of noted marriages. In 837 cases of marriage registration, Vietnamese female citizens occupied 828 cases while Vietnamese male citizens just remained in 176 cases. 23) In Hai Phong Province, there were 9357 cases of marriages with foreigners including cases of marriage registration with Korean male citizens. 24) In Can Tho City, there were cases of marriages with foreigners including cases of marriage registration and cases of noted marriages. Foreigners in noted marriage in this City were almost from Korea (8167 cases). 25) In addition, surprisingly, in Quang Ninh province, the phenomenon which Vietnamese women married foreigners (mainly with Koreans) was deeply increased. For instance, there had been 126 cases of marriages with foreigners in 2005 while this number was 786 cases in Between 2005 and 2010, there were cases of marriages with Koreans in cases of marriages with foreigners in Quang Ninh Province. 26) Following the data, the general trend of marriages between Vietnamese and foreigners in Vietnam is currently remarkable in three things: Vietnamese women are main subjects in the marriage relationships with foreigners; foreigners in marriages relationship come mainly from Taiwan, Korea and the United States; and registration and noting international marriages mainly occur in Western provinces in Vietnam. 27) This trend is continuing to be affirmed as above by reviewing the situation of international marriage in Ho Chi Minh City through the latest data collected from 1 January, 2011 to 31 st December, ) Statistics on Marriages with foreigners in the period provided by Department of Justice of Dong Thap Province. 23) Statistics on Marriages with foreigners in the period provided by Department of Justice of Binh Duong Province. 24) Statistics on Marriages with foreigners in the period provided by Department of Justice of Hai Phong Province. 25) Statistics on Marriages with foreigners in the period provided by Department of Justice of Can Tho City. 26) Summary Report done by Ministry of Justice to carry out the Instruction No. 03/2005/CT-TTg on the increase of management of marriage and family relationship with foreigners in five-year implementation (from ). 27) Can Tho City, Soc Trang, Dong Thap, Binh Duong are located in the South of Vietnam while, Ha Noi and Hai phong are located in the North of Vietnam. 8

15 베트남의 국제결혼관련 이슈: 베트남과 한국 간의 사법지원협약설립 제안 Some Issues of Marriages with Foreigners in Vietnam 01 In according to the data in 2011, 28) in Ho Chi Minh City, there were cases of marriage registration and 1278 cases of noted marriages. In cases of marriage registration, Vietnamese female citizens occupied cases while Vietnamese male citizens just remained in 749 cases. In cases of noted marriages, Vietnamese female citizens occupied cases while Vietnamese male citizens just remained in 7 cases. Foreigners in marriage registration in this city were mainly from the United States (1.235 cases), Taiwan (522 cases), Canada (241 cases) and Korea (74 cases) while foreigners in noted marriages were almost from Korea (1234 cases). Regarding the data of 2012, 29) in Ho Chi Minh City, there were cases of marriage registration 30) and 423 cases of noted marriages. In cases of marriage registration, Vietnamese female citizens occupied cases while Vietnamese male citizens just remained in 297 cases. In 423 cases of noted marriages, Vietnamese female citizens occupied 397 cases while Vietnamese male citizens just remained in 26 cases. Foreigners in marriage registration in this city were mainly from the United States (990 cases), Canada (150 cases), Taiwan (127 cases), and Korea (36 cases) while foreigners in noted marriages were maily from Korea (298 cases), the United States (28 cases), China (10 cases)... As shown, by research result in Ho Chi Minh City, the fact continues to be defined that major subjects of the international marriage relationship are female Vietnamese citizens. In addition, although the foreign parties in marriage registration are mainly from the United States, in terms of noted marriages, the leading number of foreign party in noted marriages still continuously belongs to Korean citizens in recent period. Residential locations and jobs Vietnamese female citizens and male citizens: Majority of Vietnamese female live in the countryside or remote area of the South of Vietnam such as Can Tho City, Dong Thap, Ca Mau Province or in several northern areas such as Ha Noi capital, Hai Phong, Hai Duong, Quang Ninh Province... Occupation of Vietnamese females usually consists of housewife, purchasers, free-jobs, intellectuals, public servant... In common sense, housewife is referred to people having no job or staying and assisting household works while free-jobs can be referred to people having unsteady jobs. 31) 28) Data on Marriage Registration with foreigners organized at Ho Chi Minh City Department of Justice in 2011 and Data on Noted Marriages conducted at Ho Chi Minh City Department of Justice in ) Data on Marriage Registration with foreigners organized at Ho Chi Minh City Department of Justice in 2012 and Data on Noted Marriages conducted at Ho Chi Minh City Department of Justice in ) 31) Mai Xuan Hai, above n 16, 28; Nguyen Thi Oanh, Paper on Several legal solutions to protect Vietnamese females interests in international marriages,

16 IOM 이민정책연구원 - 대한변호사협회 공동주최 국제심포지엄 아시아 내 국제결혼에 관한 법과 제도의 이해 According to results of social search, 32) proportion of Vietnamese women s jobs in the international marriage can be divided as follows: housewife is led with 42.7 percentages, free-jobs took the second place with 23 percentages, purchasers followed with percentages and the final places belonged to public servants and intellectuals with respectively 8.90 and 6.40 percentage. Residential locations of Vietnamese women in marriages with foreigner are usually in poverty, low economy with main activities in agriculture. Occupational chances for women in working ages cannot meet demand. 33) There are rather many features in common among women in the international marriages: three quarters of them are members of five-children and poor families; one-thirds earns low income; fifty-six percentages obtains under primary education and eighty-six percentages have never trained in any job. 34) Through several studies, the age of Vietnamese women in international marriage is generally young. Majority of Vietnamese women married foreigners between the age of 18 and 25 (occupied around 87.1 percentages). Of this, there are 60.1 percentages who get married between the age of 18 and ) In terms of age, gap between them and their foreign spouses is rather high. Ten years gap between spouses take 85 % while twenty years gap occupies 15%. 36) In one hand, this situation is resulted from the young age of Vietnamese women in marriages with foreigners and sometimes from their acceptance. According to result of questionnaire in 2011, eighty-five percentages of Vietnamese brides accept to get married with foreign husband who are older from 10 to 19 years and fifteen percentages accepts husbands who are 20 or 30 years of age older. 37) In the other hand, the high gap in marriage is also caused from the fact that Koreans and Taiwan man when getting married are usually at the age of above 30, even there are several cases in which bridegrooms reached the age of ) 32) Social search was done by a Board of Being for Women s advance in ) See Dam Trung Thanh, above n 18, ) Summary report on result of study of Vietnamese women in marriages with foreigners done by Labor and Social Institution. 35) See Nguyen Thi Oanh, above n 29,16; Mai Xuan Hai, above n 16, 30-31, Nguyen Thi Cam Tu, paper on Difficulties and Problems in the application of Prohibited article (article 9 and 10) of the 2000 Marriage and Family on marriages with foreigners, ) See Report of Ministry of Foreign Affairs on the issue of marriages between Vietnamese women with foreigners: Problems and Solution; Tran Huu Yen Loan, Problems of Vietnamese female emigrants who register marriage in Korea, at assessed to at 10 August, ) vgp. assessed to at 10 July, ) See Nguyen Thi Oanh, above n 29,

17 베트남의 국제결혼관련 이슈: 베트남과 한국 간의 사법지원협약설립 제안 Some Issues of Marriages with Foreigners in Vietnam 01 In summary, the phenomenon that many Vietnamese women get married foreigners especially with Taiwan and Korean bridegrooms is factual. Major of Vietnamese women in marriage relationships with foreigners are young and reside in provincial areas of the South of Vietnam. Those areas are usually agricultural regions with difficulties economy. Vietnamese brides mainly come from poor families with many brothers and sisters, have low education and income. Consequently, out of cases getting married due to true love or voluntariness, it is undeniable that a part of Vietnamese women consider that marriages with foreigners as a solution to evacuate poverty or to shift to a brighter life. 39) This is an issue threatening happiness of international marriages. Additionally, surprisingly, according to statistic mentioned as above, numbers of marriages between Vietnamese women and Koreans registered in Koreas (instead of in Vietnam) occupied considerably nearly 70 percentages. Of those cases, in process of recognition of marriages registered in Korea, it is shown that many couple could not communicate with each other. 40) This has raised an issue which is assumed to come from easy procedure of marriage registration regulated by Korean law: marriage registration does not require the presence (availability) of Vietnamese brides in front of Korean authority when registering their marriages. The Vietnamese Legal System on International Marriage Marriages with foreigners in Vietnam are ensured to be respected in Vietnam via treaties on international civil judicial assistance, 41) the 1992 Constitution (amended and supplemented in 2001), 42) and mainly governed by the 2000 Marriage and Family law, the 2005 Civil Code, and various subordinate laws such as Decree 138/2006/NĐ-CP dated on November 15, 2006 (hereafter called Decree 138), 43) Decree 24/2013 NĐ-CP dated on March 28, 2013 (hereafter called Decree no. 24), 44) and other relating written laws. 45) 39) See vgp). 40) See Report on Summary of fulfillment of the 2000 Family and Marriage issued by Ministry of Justice in ) Vietnam has been signed 17 treaties on international civil judicial assistance with following countries: Czech Republic, Slovakia (inherited from former Czechoslovakia), Cuba, Hungary, Bulgaria, Poland, Laos, Federation of R ussia, People Republic of China, France, Ukraine, Mongolia, Belarus, Democratic People Republic of Korea, Kazakhstan, Algeria and Chinese Taipei: See Tran Minh Tuan, Bachelor Dissertation on Protection of Human Rights in the International Civil Judicial Assistance in Vietnam, ) The 1992 Constitution, section 64stipulates the government protects marriage and family 43) This Decree gives details to fulfill part 7 of civil relationships with foreign element of the 2005 Civil Code of Vietnam. 44) Decree No. 24/2013 NĐ-CP dated on March 28, 2013 gives details to fulfill several sections of the 2000 Law on Marriage and Family on marriage 11

18 IOM 이민정책연구원 - 대한변호사협회 공동주최 국제심포지엄 아시아 내 국제결혼에 관한 법과 제도의 이해 In order to be able to get married Vietnamese people in front of the competent authority of Vietnam, a foreigner and his or her partner have to satisfy several requirements which the Vietnamese law specifically stipulated. Indeed, the couple has to meet conditions for marriages, to complete marriage registration or procedure of noting marriage in cases couples married abroad. 46) 3. 1 Conditions for marriages with foreigners Based on the 2005 Civil Code section 752 and the 2000 Marriage and Family law section 103, in marriages with foreigners in front of the competent authority of Vietnam (namely the People s Committee of a province where the Vietnamese citizen resides or provisionally resides in case he or she has not had permanent residency), 47) each party must be eligible to get married under his and her own national law on marriage. Concurrently, a foreign party must be eligible to marriage conditions stipulated in section 9 (about marriage condition) and section 10 (about prohibition cases of marriage) of the 2000 Marriage and Family law. According to section 9, marriage conditions consist of issues of marriage ages and voluntariness. Following this section, marriage ages under the Vietnamese law are at least 20 years of age for male and 18 years of age for female. 48) Parties in the marriage must be voluntary to decide getting married, without force, without cheating to each other. And no one can either compel or obstruct this marriage. Additionally, according to section 10, to be eligible to get married, beside satisfying the above-mentioned marriage conditions, each of the parties must not be within cases as follows: a party who has a spouse; or has no civil capacity; or is not among the direct line of biological family relationship; is not in the case of marrying a cousin who is in the third biological relationship; is not the marriage between adopted father, mother and adopted daughter, son; between father in law and his daughter in law, between mother in law and her son in law; between step father and daughter of his spouse; between step mother and son of her spouse and is not the marriage between homosexual couples. 45) Resolution No. 02/2000/NĐ-HĐTP dated December 23, 2000 of the Justice s Council on guiding to apply several regulations of the 2000 Marriage and Family; Official Letter of Ministry of Justice dated June 5, 2006 on marriages with foreigners. 46) For instance, marriages abroad mentioned here can be understood as the marriage between a Vietnamese and a foreigner in the competent authority of Korea, Australia or the United States. 47) Decree No. 24 section 6 dated on March 28, ) Section 9 of The 2000 Marriage and Family law. 12

19 베트남의 국제결혼관련 이슈: 베트남과 한국 간의 사법지원협약설립 제안 Some Issues of Marriages with Foreigners in Vietnam 01 Similarly, foreigners who would like to get married together in Vietnam, both of them must also comply with their own home legal system as well as well as conditions stipulated in section 9, section 10 of the 2000 Marriage and Family Law of Vietnam. Based on those above-mentioned rules, in the case that a Korean man marries a Vietnamese woman, the Vietnamese woman must qualifies the conditions of marriage regulated in the Vietnamese law while The Korean man must be eligible to get married in accordance with marriage conditions stipulated in both the Korean marriage law and the Vietnamese marriage law (namely section 9 and section 10 of the 2000 Marriage and Family Law) Registration of marriages with foreigners After meeting requirements as analysed above, prospective spouses must carry out their marriage registration. In this part, there are three main contents which are going to be presented, that is, state bodies with registration authority, file of marriage registration, and steps for registering marriages About competent state body taking charges of marriages with foreigners: According to section 102 of the 2000 Marriage and Family Law and section 6 of the Decree No.24, People s Committees of provincial level 49) take charges of marriage registration applying in Vietnam while Diplomatic representative or consulate general body of Vietnam is responsible for marriage registrations abroad between Vietnamese citizens and foreigners. Indeed, the People s Committee of the province where the Vietnamese party permanently resides or temporarily resides (in case he or she does not hold registration of permanent residence). For instance, the marriage between the Korean and the Vietnamese who permanently resides in Ho Chi Minh City must be registered in the People s Committee of Ho Chi Minh City. In case foreigners wish to get married together in Vietnam, they can also register marriage in the People s Committee where one party or both parties permanently reside or temporarily reside (in case the permanent residence has not been registered). 49) for example, People s Committee of Ho Chi Minh City, People s Committee of Ha Noi City, People s Committee of Binh Duong Province...are in the provincial level. 13

20 IOM 이민정책연구원 - 대한변호사협회 공동주최 국제심포지엄 아시아 내 국제결혼에 관한 법과 제도의 이해 Files of marriage registration: For applying marriage registration, each party in prospective spouses needs to prepare for following documents: 50) - A declaration for marriage registration (form provided by the law) - For Vietnamese party: a certificate of marriage status or a declaration for marriage registration in which his or her marriage status was certified within 6 months calculated to submission date. For foreigners: a single (without wife or husband) marital status issued by a competent body the country where he or she is its citizen. In case without existence of that type of document stipulated in foreign law, it can be replaced by his or her certified affidavit in accordance with his or her national law within 6 months since submission date. - A medical certification of the competent medical body of Vietnam or foreign country issued within 6 months since submission date which certifies that each party has no mental disease or others which makes him or her unable to be aware or to control conducts of him or her. - A copy of one of documents as personal proof such as identification or passport (for Vietnamese party); a passport or resident card (for foreigner). - A copy of household book or a copy of temporary resident book (for Vietnamese party); a resident card or a certification of temporary residence (for foreigners who reside or temporarily reside in Vietnam marry together). In addition to the above-mentioned documents each party must submit respective documents as follows: 51) - The Vietnamese party who is working in the armed force or in the department relating directly to state secrets must submit a certification issued by a body or a management organization in the central or provincial level to confirm that his or her marriage with a foreigner does not affect protection of the state s secrets or does not against rules of that department. - The Vietnamese party who divorced in front of a competent body of a foreign country must submit a certificate of divorce which has been noted into the civil status book in accordance with the Vietnamese law. - The Vietnamese party who concurrently hold foreign national must submit a certification of marital status issued by a foreign competent body. - A foreign party who does not permanently resides in Vietnam must submit a certificate 50) Part 1, Section 7 of the Decree No ) Part 2, Section 7 of the Decree No

21 베트남의 국제결혼관련 이슈: 베트남과 한국 간의 사법지원협약설립 제안 Some Issues of Marriages with Foreigners in Vietnam 01 issued by a foreign competent party to certify that he or she is eligible to get married in accordance with the law of that foreign country. - A foreign party who divorced a Vietnamese citizen in front of a competent body of a foreign country must submit a certificate of divorce abroad which has been noted into the civil status book in accordance with the Vietnamese law. Moreover, it depends on a concrete case to meet the requirement of state management on marriage and family with foreigner, Minister of Justice can regulate to supplement a certification issued by the Centre of Consultancy and Assistance of Marriage and Family with Foreign Elements to confirm to be advised and assisted on marriage and family with foreign elements. 52) Steps for registering marriages: There are 3 steps for the marriage registration between a Vietnamese and a foreigner. According to the new law, it takes up to 25 days for registration in Vietnam and 20 days for registration in Diplomatic Representative Body since the date of receipt of legal file and fees. However, the duration for addressing the marriage registration can last longer if verification of certain issues, the re-interview, or suggestion from the parties of extending the time organizing the ceremony of marriage registration are required. Generally, compared with previous law, 53) the process for addressing marriage registration is shorter in terms of the general duration, the time for making interview and the date of issuing certificate of marriage. Step 1: Submission of marriage registration file One of the two parties will directly submit their file of marriage registration at the Department of Justice if they wish to register marriage in Vietnam or at the Diplomatic representative body if they wish to register marriage there. The cadre who receives the file is responsible to check file documents. If the file is perfect and legal, he must write a receipt of marriage registration file showing clearly the date of interview and the date of giving a result. In case, there is a lack of documents in the file or it is illegal, the cadre who receives the file guides in written two parties to supplement and complete their file. The written guidance must fully and clearly indicate types of documents need to be supplemented, completed; the cadre who receives the file must sign and write his or her full name in the 52) Part 3, Section 7 of the Decree No ) Decree 68 dated on 10/7/2002, Decree no. 69 dated in

22 IOM 이민정책연구원 - 대한변호사협회 공동주최 국제심포지엄 아시아 내 국제결혼에 관한 법과 제도의 이해 written law. In case the parties submitted the file to wrong People s Committee, the cadre who receives the file guides them to submit file to the right People s Committee. The duration of addressing marriage registration in Vietnam is calculated from the date of receiving legal files and fees. The marriage registration submitted will take up to 25 days. In the case the Department of Justice requires the police body to verify several issues, the duration can last up to 10 working days. 54) The duration of addressing marriage registration in the Diplomatic representative body is calculated from the date of receiving legal files and fees. The marriage registration submitted will take up to 20 days. In the case the Diplomatic representative body requires a domestic body to verify several issues, the duration can last up to 35 working days. 55) Step 2: A process of addressing marriage registration Within 15 days since the date of submission of marriage registration file and fees, the Department of Justice is responsible for: 56) - Conducting a direct interview to the two parties at the Department of Justice s head office to check and to clarify personal records, voluntariness of marriage, the extent of understanding each other. If an interpreter is required to carry out the interview, the Department of Justice will appoint the interpreter. Result of the interview must be in written. Interviewing cadre must express his or her suggestion and sign the interview s document. The interpreter, if any, must undertake to translate correctly the interview content and sign the interview s document. If the result of the interview shows that the two parties do not understand each own situation, the Department of Justice must make another appointment date for re-interviewing. The re-interview must be conducted after 30 days since the date of previous interview. 57) - Issues of searching, investigating the marriage registration file: if there is any suspect thing or any complaint, accusation that the marriage through intermediary is for seeking a profit, or an untrue marriage, taking advantages of marriage to purchase women, to other self-interest purposes; or if it is considered to necessarily clarify personal records of the two parties or the documents in the file of marriage registration. The Department of Justice carry out verification. 58) 54) Paragraph 1, Section 9 of the Decree No ) Paragraph 2, Section 9 of the Decree No ) Paragraph 1, Section 10 of the Decree No ) Point a, Paragraph 1, Section 10 of the Decree No ) Point b, Part 1, Section 10 of the Decree No

23 베트남의 국제결혼관련 이슈: 베트남과 한국 간의 사법지원협약설립 제안 Some Issues of Marriages with Foreigners in Vietnam 01 In case the issue needed to be verified is under the police s work, the Department of Justice makes an official letter to the same-level Police which indicate clearly the issue with a copy of marriage registration file attached. Within 7 working days since the date of receipt of the official letter, the police carry out the verification as required and answer in written for the Department of Justice. 59) After interviewing the two parties, searching, investigating the marriage registration file, requiring opinion of the police (if any), the Department of Justice reports the result and proposes address marriage registration to submit the Provincial level of People s Committee with a file of marriage registration attached. 60) Within 5 working days, since the date of receipt of the official letter and the marriage registration file from the Department of Justice, President of the Provincial People s Committee must decide. If it is considered that the parties meet marriage conditions and do not fall in refusal cases for marriage registration (which will presented below), the President of the Provincial People s Committee signs certificate of marriage and turn the file back to the Department of Justice for organizing ceremony of marriage registration. In case there was a refusal for marriage registration, the Provincial People s Committee must send a written announcement in which reason must be clearly stated to the Department of Justice for informing the parties. 61) Refusal cases for marriage registration: the parties marriage registration may be refused in one of following cases 62) - One party or the two parties do not reach the marriage age in accordance with the Vietnamese law. - The foreign party is not eligible to get married in accordance with his or her national law or the law of the country where he or she permanently resides. - The parties are not voluntary to decide their marriage - There is deceit or force to get married - One or the two parties are having wife or husband - One or the two parties lost their civil capacity - The parties are persons having the direct line of biological family relationship; or is cousin within the third biological relationship; - The parties are persons who had been adopted parent and adopted children; or a 59) Part 2, Section 10 of the Decree No ) Part 3, Section 10 of the Decree No ) Paragraph 2 and 3, Part 3, Section 10 of the Decree No ) Part 1, Section 12 of the Decree No

24 IOM 이민정책연구원 - 대한변호사협회 공동주최 국제심포지엄 아시아 내 국제결혼에 관한 법과 제도의 이해 father-in-law and daughter- in- law; or a mother-in-law and son- in- law; or step father and his spouse s daughter; or step mother and her spouse s son; - The parties are homosexual (female gets married female, male gets married male) Step 3: A ceremony of marriage registration 63) Within 5 working days since the date the President of Provincial People s Committee sign the certificate of marriage, the Department of Justice celebrates the ceremony of marriage registration. 64) The ceremony is organized in dignity at the head office of the Department of Justice. The presence of the parties is compulsory. Representative of the Department of Justice chairs the ceremony and ask the parties the last time about their voluntariness of marriage. If the two parties agree to get married, the representative will note down Marriage Registration Book, require the parties to sign the certificate of marriage and the Marriage Registration Book, and hand in each original of the certificate of marriage to each party. 65) The certificate of marriage has been valid since the date of ceremony of marriage registration. Issuing copies of the certificate of marriage will be carried out by the Department of Justice following requirements of wife, husband. 66) Due to the parties proper reason for being postponed the ceremony of marriage registration, the organization of the ceremony can be extended within 90 days since the date the President of the Provincial People s Committee signs the certificate. When the extended time is due, the parties do not take part in the ceremony, the Department of Justice reports case to the President of the Provincial People s Committee. If the parties still wish to get married, they must start from the beginning of the process of marriage registration. 67) * Process of marriage registration in Diplomatic Representative Bodies (hereafter called Representative Body): There is a little different in terms of the time limit for addressing the marriage registration which is applied in the Representative Body. Within 15 days from the date of receipt of legal file and fees, the Representative Body is responsible for: 68) - Conducting a direct interview to the two parties at the Representative Body s head office to check and to clarify personal records, voluntariness of marriage, the extent of 63) Section 11 of the Decree No ) Part 1, Section 11 of the Decree No ) Part 2, Section 11 of the Decree No ) Part 3, Section 11 of the Decree No ) Part 4, Section 11 of the Decree No ) Section 13 of the Decree No

25 베트남의 국제결혼관련 이슈: 베트남과 한국 간의 사법지원협약설립 제안 Some Issues of Marriages with Foreigners in Vietnam 01 understanding each other. 69) - Issues of searching, investigating the marriage registration file: if there is any suspect thing or any complaint, accusation that the marriage through intermediary is for seeking a profit, or an untrue marriage, taking advantages of marriage to purchase women, to other self-interest purposes; or if it is considered to necessarily clarify personal records of the two parties or the documents in the file of marriage registration. The Diplomatic Body carry out verification. 70) - If it is considered that the parties meet marriage conditions and do not fall in refusal for marriage registration, Head of Representative Body signs certificate of marriage and turn the file back to the Department of Justice for organizing ceremony of marriage registration. In case there was a refusal for marriage registration, the Representative Body must send a written announcement with clear reasons of refusal to inform the parties. 71) - In case the issue which is considered to be necessarily verified is under the domestic body s work, the Representative Body sends an official letter stated clearly the necessary verification to Ministry of Foreign Affairs. This Ministry will require relating domestic bodies to verify their function. Within 10 days from the date of receipt of official letter of the Ministry, Domestic bodies verify the stated requirement, then, will send answers in written to Ministry of Foreign Affairs for transferring to the Representative Body. 72) - A ceremony of marriage registration is organized within 5 working days since the date the head of the Representative Body sign the certificate of marriage. 73) - The ceremony is organized in dignity at the head office of the Representative Body. The presence of the parties is compulsory. Representative of the Representative Body chairs the ceremony and ask the parties the last time about their voluntariness of marriage. If the two parties agree to get married, the representative will note down Marriage Registration Book, requires the parties to sign the certificate of marriage and the Marriage Registration Book, and hand in each original of the certificate of marriage to each party. 74) - The certificate of marriage has been valid since the date of ceremony of marriage registration. Issuing copies of the certificate of marriage will be carried out by the 69) Point a, Part 1, Section 13 of the Decree No ) Point b, Part 1, Section 13 of the Decree No ) Point c, Part 1, Section 13 of the Decree No ) Part 2, Section 13 of the Decree No ) Part 3, Section 13 of the Decree No ) Part 4, Section 13 of the Decree No

26 IOM 이민정책연구원 - 대한변호사협회 공동주최 국제심포지엄 아시아 내 국제결혼에 관한 법과 제도의 이해 Representative Body following requirements of wife, husband. 75) - Due to the parties proper reason for being postponed the ceremony of marriage registration, the organization of ceremony can be extended within 90 days since the date the head of Representative Body signs the certificate. When extended time is due, the parties do not take part in the ceremony, the Representative Body saves the certificate of marriage in its record. If the parties still wish to get married, they must start from the beginning of the process of marriage registration. 76) Jurisdiction of the Vietnamese courts in divorce between Vietnamese with foreigners Foreigners need to be aware that Vietnamese courts do not always have jurisdiction of judging a civil case. Some cases which are specifically regulated by the law will be under to the Vietnamese courts jurisdiction. According to the Vietnamese law, there are two types of jurisdiction with a difference in meaning as well as consequence, that is, general jurisdiction and specific jurisdiction. The Vietnamese courts are also vested to address divorce cases with foreigners in case either a plaintiff or a defendant is a Vietnamese citizen. 77) For instance, in a divorce between spouses in which one party is a Vietnamese, Vietnamese courts always have authority to address that divorce when a plaintiff submits an application for divorce. Following this, the above-mentioned cases usually lie in the general jurisdiction of the Vietnamese courts. Courts of other countries, such as home country s courts of the foreigners, are also vested to address those cases. Which courts will address the suits with foreign elements? This issue is partly based on the choice of the plaintiff. Being different from general jurisdiction, specific jurisdiction is referred to cases which exclusively belong to the Vietnamese courts jurisdiction. To suits included in specific jurisdiction, two parties, based on their willingness, still may select the Vietnamese courts or foreign courts to address their case. However, it is noted that judgments decided by foreign courts for cases which are included in the specific jurisdiction of Vietnamese courts will not be recognized and fulfilled in Vietnam. 78) In terms of divorce, Vietnamese courts are vested to handle cases within its specific 75) Part 5, Section 13 of the Decree No ) Part 6, Section 13 of the Decree No ) The 2004 Civil Procedural Code (amended and supplemented in 2011), section 410, Part 2(g). 78) The 2004 Civil Procedural Code (amended and supplemented in 2011), section