>>Punitive system in Vietnam's ancient law
Pham Diem
The State and Law Research Institute
I. Classification of criminal offenses in ancient laws
Law-makers in ancient Vietnam were fully aware of, and reached a fairy high legislative skills in, the classification of criminal offenses, which served as basis for determination of the penalties. Following are some major ways of such classification:
1. Classification according to well-intended and unintended offenses
Basing themselves on the conscious-ness of people when committing crimes, the ancient law-makers classified crimes into two types: crimes committed intentionally and crimes committed unintentionally. The well-intended crimes were those committed when the offenders knew they were doing things contrarily to laws while the unintended crimes were those committed due to one’s careless-ness or mistakes without any intention.
Article 4 of Hong Duc Code all-compassed the unintended offenses as follows: “If mandarins, armymen or civilians commit crimes liable to punitive forms of exile downwards due to their carelessness or mistakes and with-out any intention, they might be bailed out, except where they committed one of the ten exceptionally serious crimes.”
Particularly, Article 47 of the same Code reminded the judiciary mandarins that: “For offenders of the same crime, there must be distinction between unintentional offenders who had committed it due to carelessness or mistakes and the intentional offenders so as to mete out proper penalties in conformity with the significance of the judication of criminal offenses: To forgive persons who unintentionally commit even serious offenses and plead guilty persons who intentionally commit crimes even less serious ones.”
For offenses intentionally committed, Article 201 of Hong Duc Code stipulated all-compassingly: “Anyone who has deliberately done a prohibited thing shall be punished; the more serious the offense, the heavier the penalty will be.”
Other specific crimes specified in other articles of Hong Duc Code also saw the clear distinction between well-intended crimes and unintended crimes. For example, according to Article 202 of the same Code, anyone who helped the king draft orders to confer titles on mandarins but deliberately change the titles would be sentenced to “toi do” (corvee labor for the State); meanwhile those who carelessly made mistakes in writing such titles in the king’s order would be subject to lighter penalties. Any receipient of such an order who erased and changed its contents would be subject to exile to far-flung areas. Or Article 467 of Hong Duc Code stipulated: Anyone who intentionally killed other people with swords or spears would be sentenced to beheading while those who unintentionally killed others in a fight would be hanged (according to ancient laws, beheading was considered more severe than the punitive form of being hanged). Injuring other people with intention would be subject to a penalty one level more severe than that imposed on the offense of injuring people unintentionally in a fight.
Article 259 and many other provisions of Gia Long Code also showed the distinction between intended offenses and unintended offenses like Hong Duc Code.
So, through Vietnam’s ancient laws, the law-makers then attached importance to distinguishing crimes committed intentionally and crimes committed unintentionally. And in determining the penalties against crimes of those two categories, they also made the difference along the direction of less severe penalties for unintended crimes and more severe penalties for well-intended offenses. Particularly for the ten exceptionally serious crimes, they were handled the same way whether they were committed intentionally or unintentionally. This is a striking criminological policy of Vietnam’s ancient laws.
2. Classification according to the principal and the accomplice
For offenses committed by more than one persons, the ancient law-makers based on the role, act, extent of violation of each offender to distinguish the principal from the accomplice.
Article 35 of Hong Duc Code stipulated: “If many persons committed an offense, the follower(s) is (are) entitled to penalty one level lower than that imposed on the initiator(s).” So, according to this Article, the initiator(s) is (are) considered the principal and the follower(s), the accomplice(s).
Article 36 of Hong Duc Code prescribed: “If among many offenders of the same crime an arrested person stated that the escapee is the chief, such arrested person shall be determined as an accomplice due to the lack of evidences and witnesses to charge him otherwise. Yet, when the escapee is arrested and stated the person who had been arrested earlier is the chief, the latter shall be determined as the principal if it has been revealed so after an investigation.” What is interesting is that this provision has reflected the humanitarian spirit in ancient law that a detained person is charged only as an accomplice when there are not enough evidences against him and if he informed that the gang chief is being on escape.
Article 454 of Hong Duc Code stipulated: “Fellow-plotters of a robbery or thievery who do not go to realize the plot but are given the shares after the plot is realized by others shall all be treated like the robbers or thieves; if they refuse to take the trophies, they may enjoy less severe penalties. Or even though they do not get the trophy but are ex-robbers, they shall still be brought before bar like robbers.” So, under this Article, persons who have directly committed offenses and instigators, regardless of whether they directly execute the plot or not, are considered the principal.
Defining the criminal assault against other people, Article 469 of Hong Duc Code wrote: “If many persons beat to injury a person, those who beat that person most are the principal and subject to the same sentence as the instigator, while the accomplices enjoy one-level commutation. If a person is beaten to death, the one who dealt a fatal thrashing is subject to heavier punishment as the principal. If the fight is in a wild helter-skelter, without knowing who beat first and who beat last or who beat most and who beat less, the instigator is subject to the most severe punishment while others to one-level lesser penalty. So, under this article, in spite of different circumstances of beating people the instigator is always the principal, while only those among the offenders, who caused the most serious consequences shall be treated as the principal.
Article 654 stipulated: “Those who know the offenders but still hide them, show them the way to escape and provide them with clothings and food shall be subject to a sentence one level lower than the offenders.” Under this article, those who directly committed offenses are the principal and those who cover and/or assist criminals to escape shall be considered the accomplices.
Through its Articles 29, 223, 224, 248, Gia Long Code basically also distinguished the principal from the accomplice like Hong Duc Code.
Panoramically, though lacking the general definitions of “the principal” and “the accomplice” which are only distinguished in specific cases, the ancient laws of Vietnam revealed that the principal (or also called the culprit) are persons who play the leading role in committing offenses while others are accomplices. The principals include the instigator (the spiritual culprit) and a number of persons who directly performed the crime (the actual culprits). The principals were always subject to heavier penalties than the accomplices. This is the prominent criminalistic policy of the ancient law.
3. Classification according to recidivism and first-time offenses
There existed in the ancient laws the distinction between the first-time offenses and recidivism though without any specific articles on the general definition of the concept of recidivism. They contained only provisions on severe penalties for specific recidivism.
Article 429 of Hong Duc Code stipulated: “Burglars who commit offense for the first time shall be subject to exile in far-away land; meanwhile the notorious burglars and recividicist burglars shall be beheaded.”
According to Article 238 of Gia Long Code, in addition to the penalty of stick beating, the burglars and thieves were stigmatized with the inscription “trom cap” (burglar and thief) on the right hand for the first-time offense and on the left hand for the second-time offense. If they relapsed into the offense for the third time they shall be hanged, regardless of the value of the material evidence.
Under Article 20 of Gia Long Code, those who were sentenced to exile once but later relapsed into crime shall, besides being sentenced to exile again, be subject to 100 stick-beatings.
4. Classification of offenses according to penalties
Crimes were classified according to the punitive forms to be applied, and named after such forms of penalty, into the following:
- “Toi tu” (crimes sentenced to death);
- “Toi luu” (crimes sentenced to exile);
- “Toi do” (crimes sentenced to corvee labor for the State);
- “Toi truong” (crimes sentenced to stick-beating);
- “Toi xuy” (crimes sentenced to rod-beating);
- “Toi biem” (crimes subject to demotion).
II. Groups of specific offenses
1. Group of “thap ac” (ten grave crimes)
Speaking of offenses in the ancient laws, we must first of all speak of the group of ten grave crimes which were considered by the ancient laws most disastrous to the monarchical regime and the class order thereof.
According to historical books, “thap ac” originated from Chinese ancient laws and were applied by Vietnamese law-makers during the Ly and Tran dynasties (the 11th to 15th centuries). Regrettably, not any law or code made during this period was left till today. In Hong Duc Code as well as Gia Long Code, “thap ac” were defined in Article 2 and specified in many other articles and clauses.
According to these Codes, “thap ac” mean the following ten grave crimes:
1. “Muu phan” (plot treason) is to plot harm to the country, also meaning to the king because in the feudal society the king synonymized the country.
2. “Muu ban” meaning plot to follow the enemy and betray the country.
3. “Muu dai nghich” meaning plot to destroy the kings’ mausoleums, temples or palaces.
These above-mentioned three schemes directly infringed upon the king and the country. Hence, they were considered crimes even if they had been only in plots and not yet materialized.
4. “Ac nghich”: Beating or killing grand-parents, parents or other next of skin.
5. “Bat dao”: A person was charged with “bat dao” when committing one of the following acts:
- Killing three members of a family.
- Killing a person and cutting the victim’s body into pieces.
- Killing other people with poison.
So, “bat dao” mean criminal acts committed in a cruel and barbarous manner.
6. “Dai bat kinh”: A person was charged with “dai bat kinh” when committing one of the following acts:
- Stealing worshipping objects in royal mausoleums, temples, or the king’s things.
- Couterfeiting the king’s seal.
- Cooking for the king food which he abstained from eating.
- Inadvertently letting the king’s boat, palankeen or vehicle move unsmoothly.
- Speaking scornfully of or criticizing the king with improper words.
- Failing to act in politeness and up-rightness towards the king’s envoy.
7. “Bat hieu”: A person was charged with “bat hieu” when committing one of the following acts:
- Denouncing or scorning grand-parents or parents, or the grand-parents or parents of the husbands.
- Disobeying the parents’ teachings and education.
- Abandoning parents when they are old and weak.
- While in mourning for fathers and/or mothers, still getting married, enjoying entertainment or failing to wear mourning dresses.
- Failing to organize funeral for grand-parents and/or parents when they die; or telling a lie that the grand-parents and/or parents are dead while they are still alive.
Unlike nowadays when the above-mentioned acts are considered belonging to the domain of morals and virtues, not regulated by laws, during the feudal time, they were considered law offenses and even among “thap ac” (ten grave crimes) because the Oriental always treasure the family ties, particularly the children’s obligations towards their parents and grandparents and the wives’ duties towards their husbands.
8.“Bat muc”: A person is charged with “bat muc” when committing one of the following acts:
- Selling his/her relative(s).
- Beating or taking legal action against the husband.
9. “Bat nghia”: Those who commit one of the following acts shall be charged with “bat nghia”:
- Killing mandarins in their offices or incumbent mandarins in their localities.
- Killing their teachers.
- Covering the news on the hus-band’s death or failing to mourn for him, enjoying entertainment or marrying other husband.
10. “Noi loan”: Those who commit one of the following acts shall be charged with “noi loan”:
- Incest.
- Fornication with the maid of one’s father or grand-father even though the woman agreed thereto.
So, of “thap ac”, four were deter-mined to protect the king (“muu phan”, “muu dai nghich”, “muu ban” and “dai bat kinh”), five were defined to protect the marital and family relations according to Confucian conception of the Orient, and one aimed to penalize cruel and barbarous offenses (“toi bat dao”).
When committing one of the above-mentioned ten grave crimes, the offenders would not be entitled to the principle of favor, the principle of bailment, the principle of penal liability reduction or exemption as well as to the king’s amnesty.
2. Other groups of offense
In addition to “thap ac”, the ancient laws also prescribed some other following major groups of crime:
a/ The group of “cam ve” offenses against the protection of forbidden palace, which were defined to ensure safety for the king and the royal family and included the following main acts:
- Entering the royal ancestors’ temple without permission (Article 50 of Hong Duc Code and Article 165 of Gia Long Code).
- Entering the royal palace without permission (Article 51 of Hong Duc Code and Article 166 of Gia Long Code).
- Imperial guards using other persons to undertake their watch duty instead (Article 53 of Hong Duc Code and Article 167 of Gia Long Code).
- Drawing a bow or cross-bow and sending arrows into the forbidden palace (Article 64 of Hong Duc Code and Article 174 of Gia Long Code).
b/ The group of title offenses: The subjects of these offenses were mandarins and the object was the regime of official duties. It included the following major offenses:
- Acting against the State laws (Articles 97, 98, 116 and 122 of Hong Duc Code, and Article 152 and 153 of Gia Long Code).
- Corruption (Article 163 of Hong Duc Code, and Article 312 and 314 of Gia Long Code).
- Irresponsibility in official duties (Articles 151 and 156 of Hong Duc Code and Articles 213, 217 and 221 of Gia Long Code).
c/ The group of murdering crimes, which included the plot of murder (Article 415 of Hong Duc Code and Article 251 of Gia Long Code), the murdering of the king’s envoy(s) (Article 418 of Hong Duc Code and Article 252 of Gia Long Code), slaves killing their masters (Article 417 of Hong Duc Code, Article 263 of Gia Long Code),etc.
d/ The group of robbery and burglary which include the stealing of the masters’ property by the servants (Article 441 of Hong Duc Code), stealing buffaloes and/or horses (Article 444 of Hong Duc Code), bold burglary (Article 235 of Gia Long Code), minor thieveries and burglaries (Article 238 of Gia Long Code), robbery and murder (Article 426, Hong Duc Code), snatching prisoners (Article 427 of Hong Duc Code and Article 236 of Gia Long Code), etc.
e/ The group of fighting against other people which included beating other people by hand and feet, or by sticks (Article 465 of Hong Duc Code), deliberately beating people to death (Article 467 of Hong Duc Code), beating mandarins (Article 472 of Hong Duc Code and Article 278 of Gia Long Code); slaves beating their masters (Article 480 of Hong Duc Code and Article 283 of Gia Long Code), beating relative(s) (Article 477 of Hong Duc Code, Article 285 of Gia Long Code), beating one’s wife (Article 482 of Gia Long Code)....
f/ The group of sexual offenses, which include adultery with other people’s wife (Article 401 of Hong Duc Code), raping (Article 403 of Hong Duc Code), sexual intercourses with minor girls (Article 404 of Hong Duc Code), inducing unmarried girls (Article 402 of Hong Duc Code), conniving at one’s wife in adultery (Article 333 of Gia Long Code), mandarins’ sexual intercourses with female singers (Article 340 of Gia Long Code),etc.
Besides, there were other groups of crimes, such as military crimes, procedural crimes, offenses against the land ownership and taxation, offenses against residence registration, offenses against regulations on marriage and the family....
Generally, all these groups of crime covered major aspects of the then political, social and economic life.-