>>Penal liability under Vietnam’s criminal law
Pham
Penalties constitute a typical criminal measure and a legal consequence of crimes. Just like crimes, penalties are formed into the most important institution of
In the course of preventing and combating crimes, the
As a legal principle, penalties and crimes must be prescribed in criminal legislation texts. Judges are therefore not entitled to establish new penalties other than those already defined in criminal law and must observe the minimum and maximum limits of penalty frames, which are specified by lawmakers in specific articles of the law on crimes.
Penalties can be applied in a special order only by courts to individual offenders, as it has been affirmed in Vietnam’s Constitution that “people’s courts are adjudicatory bodies of the Socialist Republic of Vietnam”, in the Law on Organization of People’s Courts that “only people’s courts have the jurisdiction to adjudicate cases”, or in the Penal Code that courts are “the sole bodies to have power to apply penalty to offenders.”
So, only courts have the power to decide on behalf of the State whether a person must be penalized or not and which specific penalty will be applied if he/she is found guilty. Penalties decided by courts against offenders must be publicly declared at court sessions in judgments. The process of adjudication and penalty decision by courts must comply with the procedures defined in the criminal procedure law.
Penalties are used as a tool to ensure the performance of the criminal law’s tasks of preventing and combating crimes. Penalties in
- Punish and rehabilitate offenders, preventing them from committing new crimes;
- Prevent “unsteady” persons in society from committing crimes;
- Educate other people to raise their sense of law observance and actively participate in the struggle to prevent and combat crimes.
Before the promulgation of the first Penal Code in 1985, such penalties as capital punishment, life sentence, termed imprisonment, fine, warning, probation, compulsory residence, residence ban, deprivation of civic rights, confiscation of property, ban from holding certain positions or from practicing certain occupations were not prescribed in a single document but in various documents. However, these documents failed to clearly and fully define the contents and conditions for the application of each type of penalty, and also failed to clearly distinguish penalties from other measures (administrative sanctions, discipline, etc.).
In drafting the Penal Code, Vietnamese lawmakers took into consideration specific economic, political and cultural conditions in various historical periods as well as previous legislative experiences and based themselves on the requirements and roles of penalties in combating crimes as well as legislative experiences of other countries to prescribe penalties in the most general and complete manner, suitable to the criminal situation in Vietnam.
In the spirit of the Penal Code, the penalty system is construed as an aggregate of penalties prescribed by the State in criminal law, which are closely interrelated in a certain order determined on the basis of the severity of each penalty. Penalties aim “not only to punish offenders but also to rehabilitate them into persons useful to society and having a sense of observing laws and regulations of the socialist life and prevent them from committing new crimes, and also aim to educate other people to respect laws and prevent and combat crimes,” as clearly stated in Article 27 of the 1999 Penal Code.
Since its promulgation, the Penal Code has become a unique legal document defining the system of penalties, the contents and conditions for the application of each penalty and the penalty frame for each specific crime. It spells out in its General Part the definition and purposes of penalty, the system of penalties, the contents, conditions and scope of application of each specific penalty, penalty decision, penalty exemption, exemption from penalty execution, reduction of penalty term, postponement of penalty execution, suspension from penalty execution and penalties applicable to juvenile offenders.
On the basis of general provisions on penalties, the nature and danger of crimes, and the practical crime fighting situation and requirements, lawmakers have defined in the Penal Code’s Part on Crimes specific penalties for each type of crime. However, penalties must not be harder than the actual severity of acts banned by criminal law. The nature and severity of penalties against specific crimes depend on their nature and extent of danger to society. The more serious a crime the harder the penalty against it. The diversity and complexity of crimes require the diversity and balance of penalties with different degrees of coercion. The balance between penalties and the nature and extent of danger of crimes is a basis for the reasonable, fair and effective application of criminal law.
In adjudicating activities, courts should not only base on articles and clauses on specific crimes in the Penal Code’s Part on Crimes but also respect the contents, conditions and scope of application of each type of penalty as well as the principles and grounds for deciding on penalties, which have been defined in the Code’s General Part.
With the emergence of the Penal Code in
Previously, penalties were defined here and there in various legal documents. Now they are prescribed in a unique document, that is the Penal Code, where they are arranged in a system. For the first time, penalties are divided into principal penalties and additional penalties.
Principal penalties are those applicable to crimes and imposed independently. For each offense, courts can impose only one principal penalty. They include warning, fine, non-custodial reform, reform at disciplinary units of the army, termed imprisonment, life imprisonment and death penalty as specified in the 1985 Penal Code or warning, fine, non-custodial reform, expulsion, termed imprisonment, life imprisonment and death sentence in the 1999 Penal Code.
Additional penalties are those added to principal penalties, which must not be imposed independently but together with principal penalties. Courts may, on a case-by-case basis, impose one or a number of additional penalties together with a principal penalty. Additional penalties include ban from holding certain posts, practicing certain occupations or doing certain jobs; ban on residence; probation; deprivation of some civic rights; deprivation of armymen title; confiscation of property and fine as seen in the 1985 Penal Code, or ban from holding certain posts, practicing certain occupations or doing certain jobs; ban on residence, probation; deprivation of some civic rights, confiscation of property and fine when it is not applied as a principal penalty; expulsion when it is not applied as a principal penalty as in the 1999 Penal Code.
The classification of principal and additional penalties as well as the combination between principal and additional penalties upon penalty decision aim to enhance the coercion and education, punishment and rehabilitation of the penalty system in general and the principal penalties in particular; to resolutely enforce principal penalties; to achieve the purposes of specific prevention and general prevention and to help courts follow the principle of individualization of penal liability and penalty, thus ensuring social justice and legality.
Panoramically, penalties in the criminal law have been constantly improved from their scattered definitions in various legal documents during the pre-1985 period to a uniform system in the Penal Code, from their generalization and non-classification into their classification and specification. In addition to the system of penalties, the 1999 Penal Code devotes a new chapter to prescribe judicial measures, which are not penalties but coercive measures newly defined in Vietnamese criminal law.-