PHAM
Aggravating and extenuating circumstances as a factor in sentencing demonstrate the humane nature of criminal law in Vietnam, serving as a legal basis for courts to hand down specific and proper punishments.
The prescription of circumstances for aggravating and extenuating circumstances in the Penal Code and the application thereof in adjudication reflect the following principles:
- Circumstances which already serve as factors determining punishment will not be considered aggravating or extenuating circumstances in penal liability.
- Courts may consider circumstances other than the extenuating circumstances specified in Clause 1, Article 46 of the Penal Code extenuating the penal liability, but not circumstances other than the aggravating circumstances defined in Clause 1, Article 48 of the Penal Code.
- Extenuating or aggravating circumstances only permit extenuation or aggravation within a given punitive frame. Courts must not hand down punishments higher than the maximum penalty within a punitive frame, even though many aggravating circumstances are involved, but may decide on punishments lower than the minimum penalty prescribed by law for a crime or shift to a lighter penalty, if many extenuating circumstances are involved.
Extenuating circumstances
a/ Offenders have prevented and/or reduced the harm caused by their offenses. In other words, after committing crimes, the offenders try to do all they can to prevent or reduce the potential harm;
b/ Offenders volunteer to repair or compensate for damage or overcome consequences.
These are cases in which offenders themselves or their relatives seek such ways to compensate for or overcome the damage caused to victims such as repair of damaged properties, return of appropriated property, or payment of hospitalization or funeral costs;
c/ Crimes are committed in cases going beyond the limit of legitimate defense or beyond the requirements of urgent circumstances;
d/ Crimes are committed in cases in which offenders are mentally incited by the illegal acts of the victims or other persons. Such incitement may be caused by instant or repeated illegal acts of victims or other persons;
e/ Crimes are committed due to circumstances beyond the offender’s control, or such particularly difficult plights may be suffered by individual offenders or their families, which are not caused by the offenders themselves, but by natural disasters, wars, accidents, ailments or working environment, not due entirely to the offenders themselves;
f/ Crimes are committed but no damage or minor damage is caused;
g/ Crimes are committed by first-time offenders and in less serious cases;
h/ Crimes are committed due to threats and/or coercion by other persons. In these cases, offenders are coerced, but not to the extent of total mental paralysis or loss of free will, which would exempt the offenders from penal liability;
i/ Crimes are committed due to backwardness, i.e., poor cognition of the danger of their criminal acts, due to superstition or backward customs and practices;
j/ Offenders are pregnant;
k/ Offenders are aged persons, over 60 years or more;
l/ Offenders are persons suffering from illnesses that restrict their cognitive capability or capacity to control their actions;
m/ Offenders give themselves up;
n/ Offenders make honest declara-tions and reports and show their repentance;
o/ Offenders actively help respon-sible bodies detect and investigate the crimes;
p/ Offenders have redeemed their faults with achievements. These are cases in which, before adjudication, the offender not only redeems fault but also helps competent bodies detect and prevent other offenses or perform acts showing their sacrifices in the interests of the State, collectives and citizens, which are recognized by competent state bodies; or,
q/ Offenders are persons who have recorded outstanding achievements in production, combat, study or work. In these cases, the offenders are awarded orders, medals, noble titles or merit papers by the State.
In reality, circumstances extenuating penal liability are diverse, and not all can be specified by law. Therefore, the Penal Code permits courts to consider circumstances other than those prescribed as extenuating circumstances, although these must be clearly stated in the judgment.
Aggravating circumstances
Circumstances aggravating penal liability are those which increase the offenders’ penal liability within a penalty frame, reflecting their objective, subjective and personal characters. The Penal Code does not permit courts to apply aggravating circumstances not prescribed by law, demonstrating the humanitarian nature of
a/ Committing crimes in a organized manner. This means complicity and close collusion between offenders, with division of labor, preparation, calculation and coverage in crime commission. Crimes committed in this manner are often repeated crimes, which cause serious or particularly serious consequences.
b/ Committing crimes in a professional manner. This circumstance was defined in the 1985 Penal Code, specifically for crimes of infringement upon property ownership, but the General Part of the 1999 Penal Code permitted its application to all crimes. It can be construed that offenders who commit one or many crimes and repeat their crimes take this as their main profession or a major source of income.
c/ Abusing positions and powers in order to commit crimes. With their position or powers, offenders find it easy to commit crimes and cause serious or particularly serious consequences. The extent of aggravation depends on the level of positions, or powers abused.
d/ Committing crimes in a hooligan manner. Under the 1985 Penal Code, this circumstance was applied only to some crimes of infringing upon the lives or health of other persons. Yet, in the 1999 Penal Code, it was provided for in the General Part and can be applied to all crimes.
e/ Committing crimes with despicable motivation.
f/ Intentionally carrying out the crimes to the end. This is the case in which offenders are determined to commit the crimes and attain their objectives by any means.
g/ Committing crimes time and again, or recidivism or dangerous recidivism. Committing crimes time and again means the offender commits a specific crime for two or more times at different times and is brought to trial once. Recidivism means cases in which offenders have already been sentenced but unintentionally commit crimes, particularly serious crimes or exceptionally serious crimes once their criminal sentences have been served. Dangerous recidivism means cases in which offenders have already been sentenced for very serious crimes, particularly serious crimes, but intentionally commit very serious crimes or particularly serious crimes.
h/ Committing crimes against children (of under 16 years old), aged persons (of full 60 or older), pregnant women, persons unable to defend themselves or persons dependent on offenders in material and/or moral conditions, work or other ways.
i/ Committing crimes which cause serious, very serious or particularly serious consequences. Consequences are demonstrated in material and/or moral forms, covering direct and indirect damage to different extents. The more serious the consequences, the heavier the penalties.
j/ Taking advantage of war conditions, emergency situations, natural calamities, epidemics or other special difficulties of society in order commit crimes;
k/ Using treachery or cruel tricks to commit crimes and/or using means capable of causing harm to many persons. These tricks are construed as particularly dangerous, causing heavy consequences and provoking indignant responses in society.
l/ Inciting juveniles (aged under 18) to commit crimes, causing physical, material and moral harms to the juveniles.
m/ Committing treacherous and/or violent acts in order to avoid punishment or conceal crimes.-