>>Vietnam's ancient laws: sources and forms
Pham Diem
The State and Law Research Institute
Among the ancient laws of Vietnam, two typical codes have been kept intact till today, namely “Quoc Trieu Hinh Luat” (the Royal Court’s Penal Code) commonly known as Hong Duc Code during the 15th-18th century, and “Hoang Viet Luat Le” (The Vietnamese Emperor’s Rules and Regulations), commonly known as Gia Long Code in the 19th century.
All the contents of ancient laws were presented in the form of penal law provisions, or in other words the ancient laws were in fact the penal laws. Therefore, the principles of ancient laws were the penal principles, which were, though not spelt out in any separate chapters, reflected in such laws’ spirit and contents.
Following are some prominent principles of Vietnam’s ancient laws
1. The principle of guiltlessness if no laws point out the guilt
This principle is similar to the basic principle of the modern criminal laws, that is, an act is considered criminal only if it is so prescribed by a penal code and each criminal act is subject to only one type and one level of penalty provided for in such code.
Article 683 of Hong Duc Code stipulated that judicial mandarins, in their judgements, verdicts and charges had to cite law provisions; if not, they would be penalized. According to the spirit and content of this Article, no one could be charged with a crime not prescribed by law and the judicial mandarins could not, for this or that reason, alter at their own will the punitive forms stated therein.
Meanwhile, Article 722 of such Code also demonstrated the above principle by stipulating that if judicial mandarins, when naming crimes already defined in a law with penalties, made additions thereto or omissions thereof or reference to other law provisions at their own will, they would be penalized.
Article 685 of the Code further stated that judicial mandarins could base themselves only on the provisions of the code and could not draw on case-law made previously by kings themselves in their trials.
Gia Long Code, in its Article 380, also stipulated that the judicial mandarins had to invoke proper law provisions but not case-laws which, even made by kings, had not yet been codified as basis for making charges in similar cases.
2. The principle of favors
This principle meant that certain kinds of people, when committing certain crimes, would enjoy commutation.
a/ Favor according to social position: According to Article 3 of Hong Duc Code and Article 3 of Gia Long Code, there were eight kinds of people (called “bat nghi”) eligible for commutation. They were:
- “Nghi than” meaning royal family members
- “Nghi co” meaning senior mandarins who had followed and been helpful to the king for many years.
- “Nghi hien” meaning persons of great virtue.
- “Nghi nang” meaning persons of great talents.
- “Nghi cong” meaning persons with great merits to the king and the country.
- “Nghi quy” meaning persons with social titles of grade three upward.
- “Nghi can” meaning persons who were industrious in performing the public duties.
- “ Nghi tan” meaning distinguished guests of the king.
For people of the above eight categories, who committed crimes other than “thap ac” (ten felonies) and were sentenced to death, such sentence had to be submitted to the king for final decision. If they were sentenced to exile or less severe penalties, such people would enjoy one-grade commutation. Particularly for “nghi than” (royal family members), they were also immune from rod- or stick-beating. Any one who committed crimes and were eligible for various commutations, he/she could be able to enjoy the highest but not all commutations.
The social position-based favors were also reflected through such provisions that if the subordinate committed crimes against the superior (the commoner against the mandarins, the subjects against the king, the rank and file against commanding officers, slaves against masters, wives against husbands, children against parents), they were all subject to more severe punishment than those for crimes committed against persons of the same rank.
b/ Favors of humanitarian nature for aged people, children, disable persons and women, who committed crimes other than ten particularly serious offenses.
Article 16 of Hong Duc Code stipulated: Aged people of 70 or over, children of 15 or under, and the disabled might be bailed out if they were sentenced to exile or less severe penalties. When people aged 80 or over, children aged 10 or under or seriously disabled persons committed murder and were sentenced to death, the judicial mandarins had to report the cases to the king for final decision; if they committed thievery, burglary or injured other people through fighting, they might be bailed out; for minor offences, they were exempt from prosecution. If persons of 90 or over, or children of 7 or under committed serious crimes and were subject to capital punishment, they would be exempt therefrom, but those who had incited them to commit such crimes would be punished; and if they committed burglary with material evidence, the holders of such material evidence had to make the compensation.
Under Article 17 of the same code, persons who had earlier committed crimes which were detected later when they got old or disabled or children who had earlier committed crimes which were detected later when they grew up, they would be handled similarly to cases defined in Article 16.
Articles 21 and 22 of Gia Long Code prescribed similar cases like those in Articles 16 and 17 of Hong Duc Code, but further described disability as having got blind in one eye or crippled in one leg and serious disability as having got blind in both eyes or crippled in both legs.
When determining crimes or penalties against women, feudal law-makers offered a number of privileges. According to Article 1 of Hong Duc Code, when sentenced to exile, a male convict would be subject to additional penalty of stick-beating while the female convict only to rod beating. Under Article 680 of the same Code, a female convict subject to rod beating or capital punishment while she was in the family way, the judgement would be executed only 100 days after the childbirth. Articles 383 and 385 of Gia Long Code also contained similar provisions.
3. The principle of bail
The principle meant that certain people, when committing certain offences, might be bailed out.
Article 6 of Hong Duc Code stated that the Queen’s relatives, when committing offences and subject to stick-beating or stigmatization, might be bailed out. According to Article 16 of the same Code as cited above, aged persons, children and the disabled, if committing offences, might also be bailed out.
Besides, Hong Duc Code (Article 14) also defined that anyone who unintentionally committed offences, except for 10 felonies, due to his/her careless mistakes and was sentenced to exile or less severe punishment, might be bailed out.
Articles 21, 22 and 24 of Hong Duc Code specified bail bond level for each category of offences as follows:
- For offences subject to stick-beating punishment, 5 “tien” (an ancient currency unit of Vietnam) for each beating if the offenders were mandarins of the third grade upward; 4 “tien” for each beating if the offenders were mandarins of the fourth grade; 3 “tien” if the offenders were mandarins of the fifth or sixth grade; 2 “tien” if the offenders were mandarins of the seventh or eighth grade; 1 “tien” if they were ninth-grade mandarins or commoners.
- For offences subject to demotion, the first-grade mandarins had to pay 100 “quan” (also an ancient currency unit of Vietnam, which was equal to 10 “tien”); the second-grade mandarins, 75 “quan”; the third-grade mandarins, 50 “quan”; the fourth-grade mandarins, 30; the fifth-grade mandarin, 25; the sixth- or seventh-grade mandarins, 20; the eighth or ninth – grade mandarins, 15 “quan”.
- For offences subject to public corvee labor: The bail bond ranged from 30, 60 to 100 “quan”, depending on the hardness of the corvee labor.
- For offences penalized to exile: The bail bond would be 130, 200 or 230 “quan”, depending on the distance of the place of exile.
- For offences subject to stigmatization: For each stigmatized letter, the mandarins of the third grade upwards had to pay 2 “quan” as bail bond; the fourth-grade mandarins, 1.5 “quan”; the fifth -grade mandarins, 1 “quan”; the sixth-grade mandarins, 0.7 “quan”; the seventh- grade mandarins, 0.6 “quan”; the eighth or ninth-grade mandarins and commoners, 0.5 “quan”.
- Offences subject to capital punishment: 330 “quan”.
So, it is clearly seen through the above-cited stipulations that the bail bond level varied for mandarins of different grades because the feudal law-makers held that the higher the position a mandarin held, the greater responsibility he had to bear. The law did not stipulate bail for offences subject to rod-beating because rod-beating, according to ancient law viewpoint, aimed to admonish and educate the offenders, hence no bail therefor.
Gia Long Code also contained similar provisions and was added with some following regulations:
- Only people having assets were entitled to the principle of bail.
- Wives of mandarins or anyone, who unintentionally committed murder or injured other people, were also entitled to the principle of bail.
4. The principle of substitution or sharing penal liability with offenders
This principle was totally different from the principle of individualization of penalties of the modern criminal law. Or in other words, it was a typical principle of the ancient law.
As prescribed in Article 35 of Hong Duc Code, if all members of a family committed offences, except for 10 serious crimes or murder, only the family master was prosecuted.
Article 38 of Hong Duc Code stipulated that if the grand-father, the grand- mother, the father or mother in a family committed any offence subject to rod- or stick-beating, his/her children or grand-children had to take the penalty instead. The above-mentioned provisions aimed to raise the responsibility of family masters and the morals as well as filial piety of children in the family.
Under Articles 411 and 412 of Hong Duc Code, punishment was meted out to not only offenders of high treason or rebellion but also to their spouses and children as well as local mandarins who had failed to detect the offenses; and the offenders’ land would be confiscated for the public fund.
According to Article 457 of Hong Duc Code, if children who lived together with their parents committed thievery or burglary, their fathers would also be punished and had to compensate the victims. If the children lived independently, the fathers were subject to less severe penalties; if the fathers reported to the local mandarins, they would not be penalized; if the fathers failed to surrender their children to the mandarins even though they had reported thereon to the latter, they would be penalized as though they had failed to report thereon.
Gia Long Code contained provisions similar to those in Articles 35,411,412 and 457 of Hong Duc Code. Besides, Gia Long Code provided for in its Article 210 that if grand-parents or parents committed crimes subject to exile, their children and/or grand-children had to follow them to the places of exile.
5 The principle of exemption from penal liability
Those who committed crimes in one of the following circumstances would be exempt from penal liability:
a/ Legitimate self-defense:
Article 450 of Hong Duc Code stipulated: Those who intruded into other people’s houses at night without reasons were sentenced to corvee labor; if they were beaten to death at that time by the house masters, the latter were not penalized; if the intruders were beaten to death or injury after they were arrested, the culprits were handled like those who beat others to death or injury, but entitled to a three-grade commutation. Article 246 of Gia Long Code provided for this case similarly.
Or according to Article 485, if grand-parents or parents were beaten by others and their children or grandchildren fought back without causing injury to such people, the children or grandchildren would not be penalized; but if injury was caused to such people, the children or grandchildren would be penalized but entitled to three-grade commutation.
b/ Emergencies:
Article 553 of Hong Duc Code stipulated: Those who galloped on streets, alleys or crowded places in the capital city without plausible reasons were subject to 60 stick-beatings. If they did so on public duty (carrying very urgent official dispatches) or on private business (such as finding physicians to cure their parents being on death bed, they would not be penalized. Yet, if their act caused injury or death to other people, they would be penalized for careless mistakes which had caused death or injury. If the riders failed to harness their horses which were frightened and ran uncontrollably, thus causing injury or death, they would be subject to penalty two grades less severe than that for offences committed due to careless mistakes.
All these were similarly provided for in Article 265 of Gia Long Code.
c/ Force majeure:
Article 499 of Hong Duc Code stated that careless mistakes which caused death or injury would be considered for commutation according to the state of affairs. Careless mistakes occurred beyond people’s capability to see, to hear, to think, to control,...
d/ Self-confession:
According to Article 18 of Hong Duc Code, those who committed crimes other than 10 felonies and murder but made self-confession before they were detected, they would be exempt from penalties. Those who committed minor offences which were already detected but made confession of serious crimes, or committed offences which were already detected and made confession of other offences, they would be free from all offences. If they asked other people to make confession for them, they would not be pardoned from their crimes. If they failed to honestly and fully confess their crimes they would be given only one-grade commutation .If they failed to surrender all material evidences they would be judicated for the undeclared evidences. If they made confession only when they knew that other people were going to denounce them, they were entitled to one-grade commutation. Those who jointly committed crimes, escaped together but seized and surrendered each other to mandarins, they would also be pardoned.
According to Article 19 of Hong Duc Code, those who stole things of other people but later confessed their sins to such persons, they were considered as having made confession to mandarins.
Article 20 of Hong Duc Code stipulated: Those who made mistakes in their work and confessed themselves would be exempt from penalties. If one among the involved persons made confession and denunciation, all would be entitled to one-grade commutation.
Gia Long Code also specified in its Article 24 cases of penal liability exemption and reduction similar to those in Hong Duc Code. Yet, in addition to 10 felonies and murder, Article 24 of Gia Long Code also defined the following offences which were not eligible for penal liability exemption or reduction:
- Causing injury to other people;
- Destroying documents of State bodies;
- Illegally crossing the borders;
- Sexual crimes.
6. The principle of rewarding denunciators and punishing convict protectors
According to Article 25 of Hong Duc Code, those who denounced offences of high treason, rebellion, disclosure of State secrets, making counterfeit money would be given titles of nobility as rewards. Denouncers of murders, thievery, burglary would be given a reward of 100 “quan” or less; such reward money was taken from the offenders. Denouncers of undeclared land would be rewarded 1/10 of such land areas.
The last clause of Article 411 of Hong Duc Code stipulated: those who deliberately tolerated or sheltered traitors or rebels would be handled like the traitors or rebels.
Meanwhile, Article 223 of Gia Long Code provided that those who sheltered traitors or rebels would be beheaded. Those who knew and revealed the culprits to mandarins would be rewarded with the property of the offenders while those who accidentally knew the identification of the offenders but failed to report them to mandarins would be penalized with 100 stick-beatings.