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Saturday, October 21, 2017

Exclusion of penal liability in criminal justice

Updated: 17:14’ - 26/06/2014

The 1999 Penal Code of Vietnam (the Code) has no chapter or article directly providing the exclusion of penal liability though this expression has long been used in criminal law documents, law enforcement reports and criminal law textbooks and researches together with other expressions of similar meaning used in the Code, such as “not be held guilty,” “do not constitute a crime,” “do not have to bear penal liability and “enjoy exemption from penal liability.”

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Despite some different opinions on the legal nature, connotation, scope and wording of this expression in Vietnam’s criminal law, all legal experts agree that: (i) exclusion of penal liability is an institution of criminal law, (ii) it is a combination of independent institutions which are found here and there in the Code, and (iii) this institution should be improved.

Regarding the legal nature and scope of this institution, we further hold that:

First, exclusion of penal liability is not limited to the provisions of the criminal law on legitimate defense and urgent circumstances.

Second, exclusion of penal liability should be construed as the case in which a person commits an act dangerous to the society but he/she is relieved by law from penal liability due to the act’s minimal danger to the society, lack of constituent(s) of a crime or the legally grounded commission of the act.

As a result, it is reasonable to regard the six cases (minimal danger to the society of the act, unexpected event, under the age to be subject to penal liability, the state of having no penal liability capacity, legitimate defense, and urgent circumstances) in which a person committing an act dangerous to the society does not have to bear penal liability under the Code as cases eligible for exclusion of penal liability.

Meanwhile, the provisions on exemption from penal liability and the statute of limitations for penal liability examination institutionalize the State’s leniency policy toward criminal offenders in certain circumstances and therefore fall outside the institution of exclusion of penal liability.

Stemming from the above understanding about the institution of exclusion of penal liability, the cases eligible for exclusion of penal liability under the Code include:

* “An act showing signs of crime but posing minimal danger to the society is not a crime and shall be handled by other measures” (Clause 4, Article 8). In this case, the condition of considerable danger of an act to the society for determining whether or not such act is a crime and criminal justice measures should be applied is not satisfied. Therefore, this act is not regarded by law as a crime and the penal liability of the person committing it will be excluded.

* “Persons who commit acts which cause harmful consequences to the society due to unexpected events, namely in circumstances which they cannot, or are not compelled to, foresee the consequences of such acts, do not have to bear penal liability” (Article 11). In this case, due to an unexpected event, the person committing an act which causes harmful consequences to the society is not at fault due to the fact that he has neither chosen to do so nor been able to foresee the consequences of such act. Besides, he is not obliged (compelled) to foresee the consequences of such act. That means the condition of fault for determining whether or not such act is a crime and criminal justice measures should be applied is not satisfied. Therefore, this act is not a crime and the penal liability of the person committing it will be excluded.

* “Persons aged full 16 or older shall bear penal liability for all crimes they commit. Persons aged full 14 or older but under full 16 shall bear penal liability for very serious crimes intentionally committed or for particularly serious crimes” (Article 12). The provision on the age subject to penal liability aims to prescribe a condition for a person to be regarded as having the penal liability capacity and being at fault, and expresses the criminal justice policy toward minors committing criminal acts. Specifically, the criminal law provides escape from penal liability to a person who (i) is aged under 14, or (ii) is aged full 14 or older but under full 16 and commits a less serious crime or serious crime, or unintentionally commits a very serious crime. In addition, some articles of the Code, namely Article 115 (Having sexual intercourse with children) and Article 116 (Obscenity against children), prescribe that only adults committing crimes are regarded as offenders. Minors committing the acts prescribed in these Articles are automatically eligible for exclusion of penal liability and their acts are not regarded as crimes.  

* “Persons who commit acts dangerous to the society while suffering from mental disease or another disease which deprives them of their capacity to be aware of or to control their acts, shall not have to bear penal liability; to these persons, the measure of coercive hospitalization will apply” (Clause 1, Article 13). The exclusion of penal liability in this case is attributable to these persons’ state of having no penal liability capacity. Like the provision on the age subject to penal liability, this provision requires the condition of having penal liability capacity for determining that a person is at fault and has to bear penal liability.   

* “Legitimate defense is an act of persons who, for the purpose of protecting the interests of the State or organizations, the legitimate rights and interests of their own or other persons, fight in a necessary manner against persons who are committing acts of infringing upon the interests of the above-mentioned. Legitimate defense is not a crime” (Clause 1, Article 15). Without the circumstance of legitimate defense, the act in this case constitutes a crime. Legitimate defense means a person’s act causing damage to another person to prevent the latter’s act dangerous to the society and to limit the damage likely to be caused by the latter’s act. As a result, legitimate defense is recognized by law as the right of every citizen and constitutes a legal ground for excluding the criminality of an act.

* “Urgent circumstance is a circumstance in which persons who, because of wanting to ward off a danger practically jeopardizing the interests of the State or organizations, the legitimate rights and interests of their own or other persons and having no other alternatives, have to cause a damage smaller than the damage to be warded off. An act causing damage in an urgent circumstance is not a crime” (Clause 1, Article 16). Like legitimate defense, an act taken in an urgent circumstance is benevolent and aims to meet the society’s requirements and is therefore regarded by law as lawful. Urgent circumstances are used to relieve persons committing these acts from penal liability.

* “The grand-father, grand-mother, father, mother, offspring, grandchild, sibling, wife or husband of an offender, who fails to denounce the latter’s crime, shall bear penal liability only in case of failing to denounce crimes against the national security or particularly serious crimes prescribed in Article 313 of this Code” (Clause 2, Article 22). This provision perpetuates the long-standing criminal justice’s tradition of leniency toward family members of offenders for failing to report their crimes.

* “Those who are compelled to offer bribes but take the initiative in reporting it before being detected will not be held guilty and have the whole of the property offered as bribes returned” (Clause 6, Article 289). In essence, this can be regarded as a special urgent circumstance in which a person commits an act dangerous to the society prescribed in the Code while being “forced” by another person. He has no choice but to offer a bribe so as to ward off the damage which the forcing person threats to cause to himself/herself or another person. 

Proposals on improvement of the institution

We suggest the Code provide the exclusion of penal liability in a new chapter independent from the chapter on crimes because in legal essence the aforesaid cases eligible for exclusion of penal liability are not crimes.

A separate chapter on the exclusion of penal liability will help systematically determine cases (circumstances) eligible for exclusion of penal liability, including provisions directly concerning this institution and relevant provisions in the General Part and the Part on Crimes.

The cases (circumstances) eligible for exclusion of penal liability, especially in the aforementioned articles, should be prescribed using the expression of exclusion of penal liability in replacement of or in addition to the current expressions of “is not a crime,” “do not have to bear penal liability” and “not be held guilty”, because these expressions have similar meanings and are interchangeable.

Other circumstances eligible for exclusion of penal liability usually seen in reality, including force majeure event, being not at fault for the state of intoxication, forced act, act in obedience to superior orders, risks in scientific and technological research or application, and arrest of a person caught red-handed or wanted under a pursuit warrant, should be additionally specified in the Code. 

First, irremediable force majeure events are cases in which a person committing an act dangerous to the society is unable to remedy foreseeable consequences of his act due to objective (natural, technical) conditions or subjective conditions (health, professional qualifications). In other words, since he could not do otherwise in such cases, he would be considered not at fault and eligible for exclusion of penal liability.   

Second, Article 14 of the Code stipulates: “Persons who commit crimes while in the state of being intoxicated due to the use of alcohol or other strong intoxicants shall still bear penal liability.” This can be understood that a person who is at fault for his state of intoxication should bear liability for his socially dangerous act. Any person who is not at fault for his state of intoxication (pathological alcohol intoxication or forced use of alcohol or another strong intoxicant) will be regarded as being deprived of penal liability capacity and eligible for exclusion of penal liability.

Third, any act causing (considerable) damage to the society committed by a person under physical force will be eligible for exclusion of penal liability because it is not a direct result of such person’s reason and will. Meanwhile, an act committed by a person in the state of being mentally forced may be eligible for exclusion of penal liability only when there is a legal ground for such act and may be regarded as a special urgent circumstance.

Fourth, the plea of obedience to superior orders should be recognized in the Code as a legal ground for an act dangerous to the society, provided the following conditions are met: orders are lawful (given according to prescribed competence and procedures and in compliance with current law), orders have a commanding effect on subordinates, and orders are military.

Persons who follow superior orders in other (civilian) fields without perceiving such orders as unlawful may be relieved from penal liability.

Fifth, theoretically and practically, any experiment in scientific and technological research and application always has the risk of causing damage to the society. However, the criminality of a damage-causing act in scientific and technological research and application can be excluded only when the following conditions are met: (i) the act is an experiment included in registered research and application activities, (ii) the experiment aims to bring benefits to the society, and (iii) the experiment takes into account all factors acceptable to the general development level and conditions (qualifications and capability of the experiment performer, recognition by state-of-the-art science and technology).

Sixth, the exclusion of penal liability for an act dangerous and causing damage to the society taken during the arrest of an offender caught red-handed or wanted under a pursuit warrant should be based on the following conditions: (i) the motivation for causing damage to the society is to arrest the offender in question, the arrester clearly knows that the arrestee has been caught red-handed or is wanted under a pursuit warrant, and the arrestee takes no resisting act which infringes upon protected interests (otherwise, the arrester’s act would be considered as legitimate defense or urgent circumstance); (ii) the use of damage-causing force is the only or last resort to arrest the offender; and (iii) no harm is caused to others’ lives or no grave harm is intentionally caused to others’ health.-

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