PHAM DIEM
State and Law Institute of Vietnam
The principles of the criminal law are understood to include the guiding ideologies and basic orientations for defining crimes, penalties and application of the criminal law.
These basic principles are reflected through the general contents of the Penal Code as well as particular articles. The Foreword and Articles 2, 3 and 4 include the principles of the legal system, equality before criminal law, several responsibility, penal liability based on fault, fairness and humanitarianism.
The legal system
The prerequisite and fundamental principle of Vietnam’s criminal law provide:
First, an act is considered a crime, penalized by penal measures and bearing other penal consequences if these are provided for in the criminal law. Vietnam’s Penal Code provides: “A crime is an act dangerous to society and prescribed in the Penal Code” (Article 8), and “Only those persons who have committed crimes defined by the Penal Code shall bear penal liability therefor” (Article 2).
These provisions affirm that only the criminal law can prescribe crimes and penalties; or, in other words, crimes must be acts prescribed by the criminal law and penal liability and penalties only arise when such acts are committed.
Second, application of the criminal law must be based on strict and consistent observance, execution and application of its provisions, as clearly stated in Article 45 of the Penal Code: “When deciding penalties, the courts shall base themselves on the provisions of the Penal Code, taking into consideration the nature and extent of danger posed to society by the acts of offense, the personal records of the offenders and any circumstances that extenuate or aggravate penal liability.”
Third, the criminal law must not be applied on the principle of similarity. Under Articles 2 and 8 of the Penal Code, only the criminal law can prescribe crimes and penalties such that the similarity in crimes and similarity in penalties shall not apply.
The principle of legal system makes specific a constitutional principle: “The State manages society by law and unceasingly enhances the socialist legislation” (Clause 1, Article 12 of the Constitution of the Socialist Republic of Vietnam). This principle conforms to mankind’s progressive legal ideology as solemnly stated in the United Nations Human Rights Declaration of December 10, 1948, that crimes shall not be constituted if they are not prescribed by law.
In Vietnam, the idea of defining crimes and penalties appeared fairly early in feudal times. “Bo Luat Hong Duc” (The Hong Duc Penal Code) in the 15th century provided that, in making arguments and judgments, “the judging mandarins must cite the provisions on such crimes exactly without making any addition or omission” (Article 683), and “when determining crimes, the judging mandarins must refer to the very provisions of law on those crimes, without making any addition or citation to other provisions.” (Article 722).
In the history of modern law, the legal system has gone through a process of formulation and development. During 1945-1985, it was always put in the first place in the application of criminal law. However, for various reasons, Vietnam’s criminal law in this 40-year period stretching from the emergence of the young republic to the pre-“doi moi” (renewal) period, was incomplete, uncoordinated and unsystematic. This prompted the application of the similarity principle, taking policies and directives of the Party and the State and the adjudicating precedents of courts (case law) as substitutes for legal inadequacies.
Since the emergence of Vietnam’s first Penal Code in 1985, these limitations have been overcome and the criminal law principle of legality has been demonstrated comprehensively and absolutely.
Equality before the law
The Constitution of the Socialist Republic of Vietnam affirms: “All citizens are equal before the law” (Article 12).
This constitutional principle is expressed in Article 3 of the Penal Code: “All offenders are equal before the law, regardless of their gender, nationality, beliefs, religion, social class or status.”
The basic element of the principle of equality before the law is that “all criminal acts must be detected in a timely manner and handled promptly, justly and in an enlightened manner in strict accordance with the law” (Clause 1 of Article 3). In other words, anyone who commits offenses must bear responsibility before the law and be handled according to the law, regardless of who he/she is.
Equality before the law is above all understood as equality before the penal provisions on crimes and penalties. Anyone who commits crimes shall bear the same liability for the same type of acts and under the same provisions of the criminal law. To materialize such equality, the criminal law provides that the only basis of penal liability is the constitution of crimes, including objective and subjective elements of criminal acts and defined only by the criminal law.
In the modern history of the criminal law, the principle of equality before the law has been incrementally formulated and developed. In the initial period, due to objective and subjective reasons, particularly wars which required concentrated effort on the struggle against domestic and foreign enemies and the leftist perception which laid too much stress on social class and status as well as political records of individuals, this principle was more or less neglected in the criminal law as well as in adjudication by the courts.
Things have changed since the promulgation of the Penal Code, with the principle of equality before the law being comprehensively and absolutely observed through the spirit and contents of the Code, although it has been violated here and there in judicial application. The elimination of such violations, negative phenomena and limitations has constituted a crucial element of the judicial reform underway in Vietnam.
Several responsibility
The ancient feudal law in Vietnam advocated the principle of joint or even substitute penal liability for crimes committed by offenders, which was contrary to the principle of several responsibility which emerged in the 18th century during the French revolution.
This principle has been directly expressed in the spirit and contents of many articles of Vietnam’s Penal Code, such as “the Penal Code defines crimes and penalties for offenders” (Article 1); “only those persons who have committed crimes defined by the Penal Code shall bear penal liability therefor” (Article 2); “the Penal Code applies to all acts of criminal offenses committed in the territory of the Socialist Republic of Vietnam” or “outside the territory of the Socialist Republic of Vietnam” by “Vietnamese citizens” or “foreigners” (Articles 5 and 6); “a crime is an act dangerous to society prescribed by the Penal Code and committed intentionally or unintentionally by a person having penal liability capacity.” (Article 8).
So, under Vietnam’s criminal law, crimes can only be acts of individuals, and penal liability can only apply to offending individuals, not to the collectives or legal persons.
The principle of several responsibility, that offenders shall bear penal liability for what they have caused, embraces the following basic elements:
First, the subject of a criminal act can only be an individual, a specific person, not a collective or any other community.
Second, a person shall bear penal liability for the consequences of his/her own acts.
Third, penalties and all other forms of penal liability shall apply only to individuals who have committed criminal acts, aiming to directly impact such persons’ consciousness for the purpose of punishment, education and reform of offenders.
In Vietnam’s modern criminal law, several responsibility constitutes a consistent and absolute principle.
Penal liability based on fault
Under Article 8 of the Penal Code, “a crime is an act dangerous to society prescribed in the Penal Code, committed intentionally or unintentionally by a person having penal liability capacity”.
Fault is thus considered one of the bases of penal liability and constitutes an evitable sign of elements constituting crimes. No one shall bear penal liability for acts dangerous to society if he/she is not at fault.
The principle of penal liability based on offender faults is based on the extent of fault, including heavy fault, light fault, and intentional and unintentional faults. Under the Penal Code, intentional faults are considered more dangerous than unintentional ones which are considered crimes only when they cause serious consequences. For instance, of the 44 articles in Chapter XIX, specifying unintentional crimes infringing upon public safety, 31 dwell on acts considered to be crimes when they cause serious consequences.
Humanitarian principles
The Foreword of the 1985 Penal Code affirms: “The Penal Code demonstrates the Party and State policy of penalizing offenders with a view not only to punishing but also to educating and reforming them into persons useful to society, demonstrating the spirit of socialist humanitarianism and the belief in the capacity to reform people under the socialist regime.”
In the 1999 Penal Code, the policy of humanitarianism is more clearly and comprehensively expressed in Articles 3, 7 and 8, as “to grant leniency to persons who make confessions, make honest declarations, denounce accomplices, redeem their faults with achievements, show repentance, voluntarily right themselves or make compensation for damage they have caused”; “for first-time offenders of less serious crimes, who have shown their repentance, penalties lighter than imprisonment may be imposed, and they may be placed under the supervision and education of agencies, organizations or families”; “for persons sentenced to imprisonment, they must be compelled to serve their sentences in detention camps, to labor and study so as to become persons useful to society; if they make marked progress, they shall be considered for commutation of their penalties”; “persons who have completely served their sentences shall be given conditions to work and live honestly, to integrate themselves into the community, and when they fully meet the conditions prescribed by law, their criminal records shall be wiped out.”
The principle of humanitarianism of Vietnam’s criminal law embraces the following basic contents:
First, for offenders, penalties will be applied to extents necessary to achieve the purpose of reforming and educating them and preventing crimes.
Second, penalties and other criminal measures do not aim to physically hurt people and lower their dignity. Penalties only aim to punish offenders in order to educate and reform them.
To materialize the principle of humanitarianism, the Penal Code sets a number of provisions and institutions to be used as legal bases for application by prosecuting and adjudicating bodies. They include provisions on retroactive application of legal provisions on remission of a crime, a penalty, an aggravating circumstance; provisions on extenuating circumstances; institutions on suspended sentence, penal liability exemption, penalty exemption, remission of criminal records; provisions on commutation of penalties, exemption of penalties for offenders who are old and weak or suffer from dangerous diseases; and provisions on penal liability applicable to minor offenders.-