>>King Le Thanh Tong and the Hong Duc Code
>>The state and law in the early period of the posterior Le dynasty (1428-1527)
Lawyer TRAN THI TUYET
State and Law Research Institute
“Quoc Trieu Hinh Luat” (the royal court's penal code) -- the first comprehensive and oldest Code of the Vietnamese feudal state with its main contents left until today -- is a general Code containing legal provisions of various bodies of laws: criminal law, administrative law, civil law, the law on marriage and the family, the law on procedures, etc.
However, “Quoc Trieu Hinh Luat” is basically a penal code. Most of its provisions have been expressed in the form of criminal law. The scope of penalties was very large, depending on a broad concept of crimes. Its punitive measures were applicable not only to offenses governed by the criminal law but also to violations of provisions in the fields of administration, civil, the family, rituals, etc.
The system of penalties in “Quoc Trieu Hinh Luat” was diversified, comprising two parts: The principal penalties and the supplementary penalties. The principal penalties, as defined in Article 1, were of classical character of the feudal legislation with “ngu hinh” (five punitive forms): “xuy” (beating the criminal with whip); “truong” (beating the criminal with stick); “do” (sentence to hard labor); “luu” (sending away in exile); and “tu” (death sentence). The system of principal penalties was defined with clear and concrete contents for each punitive form and conditions for its application. All of the penalties were nothing but tortures of cruelly suppressive character. They were arranged in order of severity for easy application during the trial.
Unlike the provisions of the criminal laws of previous feudal regimes, “Quoc Trieu Hinh Luat” defined in details the frame and limit for each punitive form, depending on seriousness of the offenses. For instance, “Xuy” comprised five degrees, ranging from 10 to 50 whips; “truong” also comprised five degrees, ranging from 60 to 100 beatings with stick. “Xuy” penalties were often applied to female offenders while “truong” penalties to male criminals. In many cases, “xuy” and “truong” became supplementary penalties to the principal ones: “do”, “luu” and “tu”.
“Do” punitive form comprised 3 degrees: hard labor and 80 stick beatings for male criminals; hard labor and 50 whips for female criminals; hard labor together with beatings or whippings and the stigmatization of 2 to 4 letters on the neck. In many cases, “do” was used as a supplementary penalty to “luu” punitive form which also comprised 3 different degrees: “can chau” (sent to exile in nearby district); “ngoai chau” (exile in not faraway districts); and “vien chau” (exile in faraway districts). And these forms were added with three supplementary penalties: 90-100 stick-beatings for male criminals or 50 whippings for female criminals; with from 6 to 10 letters stigmatized on face; and hard labor.
“Tu” punitive form was subdivided into three degrees, depending on the seriousness of crimes: beheading; beheading with heads displayed to the public; and “lang tri” (cutting the criminal's flesh piece by piece until he/she died).
In addition to these five punitive forms, other types of penalties, which reflected the barbarous and suppressive characters of feudal laws, were also provided for in “Quoc Trieu Hinh Luat”, such as ruining the offender physically (cutting fingers, hands or feet); or the deprivation of rights to freedom; detention, torture, etc. of criminals and their relatives; forcing criminals' wives and daughters to work as maidservants, etc.
The supplementary penalties were often added to the principal ones in cases where the criminal committed a more serious crime or committed more than one crime at a time. They included the stigmatization of letters on the face or neck; fines; confiscation of property. For people with titles, the punitive measures of “biem” (demotion) or “cach” (dismissal) were applied.
Such a system of diversified, specific and severe penalties, which was indispensable to the then feudal society, contributed an important part to the prevention of crimes and to the establishment and consolidation of the political, economic and social regime of the centralized feudal State in Vietnam during the Le dynasty.
The determination and application of penalties occupied a very important position in criminal law. Therefore, a large part of Chapter I (Danh le: Appellation) of “Quoc Trieu Hinh Luat” was reserved for provisions on the principles for punitive system.
The principle of favor was an important principle, confirmed first by the Code, which reflected the distinctive class character and at the same time demonstrated the ethical tradition of the Vietnamese nation. This principle was applicable to specific cases where 8 types of people with exclusive conditions (called “bat nghi” meaning 8 favors) were entitled to enjoy it.
Article 3 of the Code prescribed 8 types of people with entitlement to “bat nghi” regime. They were relatives of the Royal Couple - the king and the queen, the king's mother, (which was called “nghi than”); people who have served the king for a long time or the king's old acquaintance (called “nghi co”); people of great virtues (called “nghi hien”); people of great talents (called “nghi nang”); people of distinguished services to the country (called “nghi cong”); mandarins of from third rank upward and scholars of from second title upward (called “nghi quy”); people who are industrious and dutiful in their work (called “nghi can”); and children and grandchildren of previous kings (called “nghi tan”). If having committed crimes of “luu” category downward, people of the above-mentioned eight types shall be eligible for commutation through judges' consideration and rulings; in cases where crimes of “tu” (death) category were committed; judges shall have no right to decide the cases but have to conduct trials as usual with clear indictment and penalties, then make report to the king for consideration and decision. If having committed one of the ten barbarous crimes prescribed by law, those people shall not be entitled to the principle of favor (Article 4).
In addition, the Code has also specified in details a number of other cases entitled to the principle of favor: Women who have married mandarins with ranks, if having committed crimes, shall also be entitled to remission in accordance with the ranks of their husbands (Article 7); children and grandchildren who expiate the crimes of from “truong” and “xuy” categories downward, which were committed by their parents or grandparents, shall be entitled to commutation (Article 38); children and grandchildren of people of “nghi cong”, if having committed crimes, shall be entitled to remission according to the services of their parents or grandparents (Article 12).
The principle of pecuniary redemption of crime: This was taken by the Le dynasty's criminal law as a principle for applying penalties: People of “nghi than”, mandarins of from the sixth rank upward, people of over 70 years of age, children of under 15 years of age, the disabled, unintentional offenders, who have committed crimes of “luu” category downward, shall be eligible for redemption of their crimes with money. This principle has reflected the distinctive class character, protected the interests of the ruling class, and has also demonstrated its humanitarian and pro-gressive character that conforms to the Vietnamese ethics.
The principle of exemption from penal liability was applied to people of over 90 years of age and children of under 7 years old, who committed any crime; people who voluntarily gave up the commission of crime or surrendered to the authority after having committed crime (except for 10 barbarous crimes and murder) (Article 16). This principle has , to some extents, reflected the humanitarian and clement character of the Le dynasty's legislation. Under the provisions of the Le's criminal laws, the aged people, children, the disabled, women (particularly pregnant women) were eligible for this principle as provided for in Articles 1, 16, 17, 18, 79, 680... of the Penal Code.
A number of provisions of “Quoc Trieu Hinh Luat”, such as those in Articles 683, 685, 708, 722, reflected one of the basic principles of the modern legislation, that is an act can only be considered a crime when it is so provided for by a law; any penalty must be prescribed by law.
Speaking of the Le dynasty's legislation, one cannot help recalling the principle of rewards or penalties for those who exposed or refused to expose the offenders (Article 25); the principle of bearing penal liability for other people's acts against people who either were next of skin of, or have certain social relations with, the offenders (Articles 35, 38, 411, 412); the principle of applying penalties with clear distinction between crimes committed unintentionally and crimes committed intentionally, “pardoning people who unintentionally committed even serious crimes; and arresting people who intentionally committed even frivolous crimesª (Article 47); the principle of distinguishing cases where one crime was committed from cases where several crimes were committed; distinguishing the penal liability of the instigator from that of the accomplice (Article 35). The principle of punishment through comparison and punishment of acts which were “banned from being performed”... aimed to fill the legal loopholes, thus effectively preventing acts of infringing upon the interests of the State, the society and the ruling class (Article 642).
The specific crimes of various types were defined in the remaining 12 Chapters of “Quoc Trieu Hinh Luat”. They were grouped into certain types of which the boundaries were, however, not so absolute and not so clearly distinctive as in modern criminal laws.
All the offenses prescribed by the criminal laws of the Le dynasty in particular and of the Vietnamese feudal state in general were classified into two types: the first type grouped 10 barbarous crimes, and the second type included all other crimes which were different in their nature.
The 10 crimes considered to be most serious and most dangerous were crime that infringed upon the royal reign, the throne, the economic and political interests of the king, the life and body of the king, the royal family, upon the feudal moral principle and ethics in the family and social life. According to Article 2 of “Quoc Trieu Hinh Luat”, those ten crimes were:
1. “Muu phan”: meaning to plot treason which threatens the nation.
2. “Muu dai nghich”: meaning to plot a rebellion; to destroy temples of deceased kings, imperial tombs and royal palaces.
3. “Muu ban”: meaning treason, betraying the country and following the enemy.
4. “Ac nghich”: meaning beating and attempting to murder the grandparents, parents, uncles, aunts, brothers and/or sisters.
5. “Bat dao”: murdering three members of a family, who did not reserve death; murdering people and cutting his/her body into pieces; poisoning people.
6. “Dai bat kinh”: stealing worship objects in shrines and temples and/or imperial objects; forging the royal seal or signets; preparing improper medicine for the king; cooking for the king food which were banned from cooking; failing to properly maintain the king's boat; criticizing the king, being impolite to the king's envoy.
7. “Bat hieu” (undutifulness): insulting parents and grandparents, disobeyance, failing to look after parents and grandparents properly, getting married while still in mourning, etc.
8. “Bat muc”: beating, selling or murdering the husband, next of skin, or an older person.
9. “Bat nghia” (disloyalty): meaning common people murdering mandarin, pupil killing teacher, not in the mourning for the husband, who just died, so as to get married with another man.
10. “Noi loan” (adultery): committing adultery with next of skin or maid of the father of grandfather.
Those who have committed one of these 10 barbarous crimes shall not be entitled to the principle of favor, the principle of pecuniary redemption of one's crimes; to amnesty, etc. The penalty for the offender of these crimes was “tu” (death).
Besides these ten barbarous crimes, other crimes were grouped according to types in 12 chapters, from chapter II to chapter XIII of “Quoc Trieu Hinh Luat”. All the crimes prescribed in these 12 chapters can be subdivided into the following groups:
1. Crimes that infringe upon the safety, quietness, rituals at such place as imperial tombs, temples of the deceased kings, royal palace, and the physical safety of the king. This crime group was specified in Chapter “Ve Cam” (Watching, guarding).
2. Crimes that infringe upon public order, the administrative management. They were prescribed in chapters “Vi che” (in contravention of law), “Tap Luat” (other crimes) and “Tra nguy” (forgery and deception).
3. Military offenses. This group was prescribed in Chapter “Quan Chinh” (the military affairs).
4. Crimes that infringe upon the life and health of other people, the honour of people in higher ranks. This group of crimes was prescribed in Chapter “Dao Tac” (burglary and robbery), “Dau tung” (fight, lawsuit).
5. Offenses against the regimes of ownership of land and others. They were provided for in chapter “Dien san” (land and field) and “Dao tac” (burglary and robbery).
6. Offenses against the regime of marriage and the family or relating to sexual intercourse. They were prescribed in chapters “Ho Hon” (marriage and family), “Thong gian” (sexual relationship).
7. Crimes against legal activities. They were defined in chapters “Bo vong” (arresting escaping criminals) and “Doan nguc” (trial).
The grouping of crimes as well as penalties into different chapters of “Quoc Trieu Hinh Luat” created favorable conditions for the enforcement of criminal laws during the Le reign. The specific and detailed prescription of penalties, typical signs of crimes, criminal acts and their consequences; objects of the criminal acts... made the judge unable to heighten or lower the penalties at will, thus creating conditions for trying the right people, the right crime and in accordance with law. However, this made the provisions wordy and not highly generalized.
An important part of “Quoc Trieu Hinh Luat”, the criminal law reflected the distinctive class character and institutionalized the basic contents of Confucian ideology (which then became the orthodox ideology of the centralized feudal State of Vietnam). The criminal laws and other bodies of laws in the colossal Code of a prosperous feudal dynasty served as a legal basis and an effective instrument for the management of the State and the society during the Le time.-
Footnote: