>>Penal liability under Vietnam’s criminal law
>>New concepts in the 1999 Penal Code
PHAM DIEM
State and Law Institute
Crime is defined as an act dangerous to society and banned by criminal law. It is classified into groups based on criteria that determine the individualization of or exemption from penal liability and punishment.
Crime categorization is significant in that:
First, proper crime categorization makes it possible to accurately determine penal liability, prosecution measures, jurisdiction for investigation, adjudication, penalty individualization, and reform options.
Second, proper categorization of crimes enables the correct application of legal norms in the General Part of the Penal Code, such as the differentiation of penal liabilities, the exemption of penal liability and punishment, the suspension of a sentence, and the determination of recidivism. At the same time, categorization facilitates the establishment of penal measures under the Penal Code in the Part on Crimes.
Third, proper classification of crimes allows for the application of progressive principles of modern criminal law, such as the principles of legality, fairness, humanitarianism, and liability, thereby contributing to the protection of civil and human rights.
Fourth, crime categorization not only orders and systematizes criminal acts (namely through the structure of the Penal Code), but also serves as the basis for recognizing dangerous crimes and taking measures against them.
Crime is categorized in the General Part and the Part on Crimes of the Penal Code, where the General Part serves as the foundation of and prerequisite for the categorization in the Part on Crimes.
Crime categorization in the General Part of the Penal Code
In the General Part of the Penal Code, all criminal acts are classified into groups of basic crimes, depending on their nature and the extent of danger they pose to society as well as on their respective legal consequences. The classification is based on three basic criteria:
First, the nature and extent of the crime’s danger to society are based on objective and qualitative criterion and reflect the harm caused to various objects (interests of people, society, or the State) as protected by law. The extent of danger is a quantitatively objective criterion for further clarification of each crime. The nature and extent of the danger to society serve as the most fundamental and important basis for crime classification.
Second, the nature of fault (intentional or unintentional), or the form of the crime’s fault, is a subjective and quantitative criterion, further clarifying each crime. Fault is a concrete manifestation of the offenders’ psychological attitudes towards their acts and their consequences. This contributes to the effective application of progressive legal principles, like penal liability based on faults and the individualization and differentiation of penal liability. This criterion is subjective, showing the extent of the danger the criminal himself poses to society.
Third, punitive measures constitute a supplementary criterion, guiding judicial bodies in distinguishing crimes. The nature and extent of a crime’s danger is displayed through the severity of punishment. When formulating punishment, lawmakers have already taken into account the personal records of offenders, such as recidivism. This criterion concretely reveals the lawmaking technique realized in the first two criteria.
In the General Part of the country’s first Penal Code (1985), Vietnamese legislators used the above criteria to categorize crimes into two types: serious and less serious crimes.
According to Article 8, serious crimes are crimes that cause great harm to society. The penalty for such crimes is over five years of imprisonment, life imprisonment or capital punishment. Less serious crimes are those that cause no great harm to society. The penalty for such crimes is under five years jail time or lighter punishments.
However, such classification of crimes is no longer suitable, particularly as Vietnam moves into a market economy with open-door policies and broader international integration. At this time, society will see both positive change and more diversified and complicated offenses.
As such, the 1985 Penal Code was revised in 1999 with a new classification of crimes still based on the above-mentioned criteria, primarily the criterion of the crime’s nature and extent of danger to society.
Depending largely on the extent of harm caused to society, Article 8 of the 1999 Penal Code has categorized crimes into four primary types:
Less serious crimes, which cause no great harm and merit a maximum penalty of three years imprisonment;
Serious crimes, which cause great harm to society and merit a maximum penalty of seven years imprisonment;
Very serious crimes, which cause very great harm to society and merit a maximum penalty of fifteen years imprisonment;
Particularly serious crimes, which cause exceptionally great harm to society, and merit over fifteen years of imprisonment, life in prison or capital punishment.
Crime categorization in the Penal Code’s Part on Crimes
In this Part, crimes’ objects, which are social relations protected by criminal law, are the most important criterion and basis for crime classification.
Lawmakers clearly stated in Article 1 of the 1999 Penal Code which objects are to be protected by criminal law. They include the socialist regime, the people’s mastery, equality among people of various nationalities, the interests of the State, the lawful rights and interests of citizens and organizations, and the legal and social order. These objects are further specified in Article 8, and include:
The independence, sovereignty, unity and territorial integrity of the Fatherland;
The political regime;
The economic regime;
National defense, security, social order, and safety;
Lawful rights and interests of organizations;
Life, health, honor, dignity, freedom, property, and other lawful rights and interests of citizens; and,
Other fields of the legal order.
These objects form the system of social order, which, when protected by law, becomes the legal order. Legislators used these objects to categorize crime into different groups:
Crimes of national security;
Crimes to human life, health, dignity and honor;
Crimes to democratic freedoms;
Crimes infringing on ownership rights;
Crimes of marriage and family;
Crimes infringing on the order of economic management;
Environment-related crimes;
Narcotics-related crimes;
Crimes of public safety or order;
Crimes infringing on administrative management order;
Position-related crimes;
Crimes of judicial activities;
Crimes of duties and responsibilities of army personnel; and,
Crimes undermining peace or war crimes.
The 1999 Penal Code is clearer than the 1985 Penal Code. For instance, Chapter XI on Crimes of National Security specifies crimes directly weakening or jeopardizing the existence of the state administration or infringing upon the independence, sovereignty, unity and territorial integrity of the Fatherland. Crimes like smuggling have been transferred to Chapter XVI on Crimes Infringing on the Order of Economic Management. The crimes of illegally producing, stockpiling, transporting, using, trading in or appropriating radioactive elements and disseminating debauched cultural products have been transferred to Chapter XIX on Crimes of Public Safety or Order.
The 1985 Penal Code classified crimes of infringement upon ownership rights into two groups: infringing on State property and infringing on private property of citizens. The 1999 Penal Code put all these crimes into only one group, suitable to a market economy with different forms of ownership, all equally protected by law.-