Vietnam Law & Legal Forum Magazine is your gateway to the law of Vietnam

Official Gazette

Friday, October 7, 2022

Immunity and defenses

Updated: 14:25’ - 23/04/2008

PHAM DIEM
State and Law Institute of Vietnam

Immunity from prosecution and defenses are two different aspects of Vietnam’s criminal law.

Though not defined in Vietnam’s Penal Code, immunity is broadly understood as the exemption from legal consequences of crimes committed by offenders in which the lawful elements of a crime are otherwise fully present. It means the cases in which violations contain elements that constitute grounds for crimes but the offenders are immune from criminal prosecution and penalties although they may remain liable to other coercive criminal measures such as being assigned to local administrations for management or sent to reformatories.

Prosecution will also not occur in cases in which acts cause objective criminal damage but are not considered crimes as they do not contain the elements that constitute grounds for crimes, specifically the “fault” element. Consequently, the offenders are excluded from penal liability, not guilty and not subject to penalties or other coercive criminal measures.

Immunity

Under Article 25 of the Penal Code, an offender shall be exempt from penal liability “due to a change of situation.”

The offender shall be immune from prosecution if during the investigation, prosecution or trial, due to a change of situation, the act of criminal offense or the offender is no longer dangerous to society.

The change of situation is construed as a change in social conditions, in localities or among families or individuals. Such a change leads to a change in the nature of the criminal offense, which is no longer criminally dangerous to society though it may still be civilly, administratively or ethically contravened.

For instance, such acts as over-slaughter of domestic animals or trading in ration tickets during the time of centrally planned and state-subsidized economy were defined by the 1985 Penal Code as crimes but are no longer dangerous to society now that the country has moved into a market economy; hence, the offenders are exempt from penal liability. Or where an offender suffers a dangerous ailment after committing a crime, being unable to continue committing crimes and no longer dangerous to society, prosecution is not necessary; and he/she is exempt from penal liability.

The penal liability exemption due to the change of situation is a compulsory provision as “being a danger to society” constitutes an important element of crimes. Yet, due to the change of situation, the offender is no longer dangerous to society and his/her acts, in essence, do not constitute crimes. The Penal Code provides that when determining that a crime is no longer dangerous to society due to a change of situation, courts are obliged to exempt the offender from penal liability.

Immunity may be granted due to positive or mitigating acts of offenders.

If before the act of criminal offense is detected, the offender gives him/herself up and clearly declares and reports facts, thus effectively contributing to the detection and investigation of the crime and trying to minimize the consequences of the crime, he/she may be exempt from penal liability.

With such provision, the Penal Code demonstrates the humanitarian nature of the Vietnamese State and encourages offenders to redeem their past and act positively to prevent the consequences of their criminal offenses.

The penal liability exemption due to positive acts of offenders is an optional. The Penal Code permits authorities to assess on a case-by-case basis the conditions prescribed by law to exempt offenders from penal liability.

Lastly, immunity can also arise from general amnesties

General amnesties mean National Assembly decisions to exempt penal liability or penalties or to replace declared penalties with lighter ones for a series of offenders or for one or many types of crime but without canceling the provisions of criminal law on such crimes as well as penalties against such criminal acts. The general amnesty decisions are effective only for the crimes mentioned therein and committed before the promulgation of such decisions.

When general amnesty decisions are issued, cases must not be instituted or must be dismissed if being prosecuted or investigated. If a person examined for penal liability claims that he/she is not guilty, he/she may demand a court trial to determine the absence of guilt even though a general amnesty has already been issued. If the court finds that such person is not guilty, it must declare not guilty; if it finds that he/she is guilty, it shall apply the general amnesty decision to exempt the penal liability.

Apart from these sources of immunity, the Penal Code also provides penal liability exemption for a number of specific crimes, such as “those who agree to act as spies but do not realize their assigned tasks and confess, truthfully declare and report such to the competent State bodies shall be exempt from penal liability” (Clause 3, Article 80); and “bribery intermediaries, who take initiative in reporting such before being detected, may be exempt from penal liability” (Clause 6, Article 290).

Defenses

A legitimate defense is a circumstance prescribed by the criminal law, allowing penal liability to be excluded.

Before the emergence of the country’s first Penal Code in 1985, the Vietnamese State promulgated various documents dwelling on separate aspects of legitimate defenses. They include Decree No. 301-TTg of May 20, 1957, on the protection of citizens’ right to bodily freedom, which provided for cases of using weapons while performing official duties; the May 20, 1962 Ordinance, defining the tasks and powers of the people’s police; the Supreme People’s Court’s annual guidance on trial.

The legitimate defense is defined by both the 1985 Penal Code (Article 13) and the 1999 Penal Code (revised) (Article 15) as “an act of persons who, for the purpose of protecting the interests of the State and/or organizations, as well as the legitimate rights and interests of their own or other persons, fight in a necessary manner against persons who are committing acts of infringing upon the above-mentioned interests. Legitimate defense is not a crime.”

So, legitimate defense is an act of fighting back attackers, aiming to protect the legitimate interests and prevent assaults by way of causing damage to attackers. The persons who exercise the legitimate defense are, therefore, not at fault, not offenders and excluded from penal liability even though they have caused objective criminal damage.

However, only when the legitimate defense fully satisfies the following conditions can it be considered a lawful act.

First, there must be attacking acts, infringing upon the legitimate interests of the State, organizations and/or citizens in terms of life, health, dignity or property. This serves as a ground for the emergence of the right to legitimate defense.

Second, the attacking acts must be real and are occurring, not be deduced or imagined. The attacking acts may be in different states: preparation for attacks, on-going attacks or concluded attacks. Under the criminal law, the legitimate defense can be exercised only when attacks are real and taking place.

Third, legitimate defense must cause damage to the very attackers, but not to the interests of other persons. The defenders may only act to fight back to cause damage to the life and health but not to other interests (dignity, property) of attackers because only when the attackers’ lives or health are damaged can the sources of attacks be paralyzed.

Fourth, defense acts must correspond to attacking acts. The determination of correspondence between the defense acts and attacking acts constitutes a crucial ground for determination of the legitimacy of the defense. This is really a very complicated matter in both theory and practical application. The correspondence between defense acts and attacking acts does not mean a mechanic parity, that is the attackers resort to certain means, the defenders also use such means or the attacking acts cause damage at a certain extent, the defense acts may also cause damage at such extent. It must be understood as the correspondence in nature and extent between the defense acts and the attacking acts.

According to Article 15 of the Penal Code, “acting beyond the prescribed legitimate defense limit is the act of fighting back in a manner incompatible with the nature and the extent of danger posed to society by the act of infringement.”

Legitimate defense becomes a right of citizens. It can be exercised at any time and any place by oneself without having to wait for permission of authorities. Yet, acting beyond the prescribed legitimate defense limit constitutes an act dangerous to society as it has caused unnecessary damage to the attackers; hence, persons acting beyond the prescribed legitimate defense limit shall bear penal liability. The Penal Code specifies crimes of acting beyond the legitimate defense limit, such as “murder beyond the limit of legitimate self-defense” (Article 96); “intentionally inflicting injury on or cause harm to the health of other persons by exceeding legitimate self-defense” (Article 106).

Urgent circumstances

Just like legitimate defense, urgent circumstances constitute cases in which penal liability is excluded.

According to Article 16 of the Penal Code, “the urgent circumstance is a circumstance in which persons who, because of wanting to ward off a danger practically jeopardizing the interests of the State and/or organizations, the legitimate rights and interests of their own or other persons and having no other alternatives, have to cause a damage smaller than the damage to be warded off.”

So, under such circumstances, a person must opt to let the damage occur according to the objective development of the source of danger or to cause a small damage in order to ward off a bigger one. Such option is recognized by the criminal law as a citizen’s right.

In order to determine the boundary between lawful and unlawful acts, helping citizens to behave properly when protecting legitimate interest in urgent circumstances, the criminal law provides that an act is considered an act performed in an urgent circumstances must fully meet the following conditions:

First, the practical danger threatening the legitimate interests serves as a ground for performing that act in urgent circumstance. Unlike the ground for the exercise of the right to legitimate defense, which is a criminal attack, the ground for performance of acts in circumstances is the appearance of sources of danger caused by nature or man (storms, floods, human epidemics, troubles of means or machinery, etc.) Such sources of danger must exist in reality, not be deduced or imagined, are taking place or have taken place and directly threaten legitimate interests. If the sources of danger do not exist objectively but only in imagination or the sources of danger have not practically caused immediate damage to the legitimate interests, or the sources of danger have terminated, they cannot be considered urgent circumstances.

Second, causing damage to these legitimate interests is the only way to protect other legitimate interests. In the spirit of the Penal Code, only when a source of danger threatens to cause immediate damage to legitimate interests and there is not any other measure to ward off the possible damage can an act be performed in urgent circumstances to protect the legitimate interests.

Third, the damage caused by acts in urgent circumstance must be smaller than the damage caused by the sources of danger. According to the Penal Code, “where the damage caused obviously goes beyond the requirement of the urgent circumstance, the persons who cause such damage shall bear penal liability therefor” (Clause 2, Article 16).

Unexpected events

According to Article 11 of the Penal Code, “persons who commit acts which cause harmful consequences to the society due to unexpected events, namely in circumstances which they can not, or are not compelled to, foresee the consequences of such acts, shall not bear penal liability therefor.”

So, the persons who cause harms to the society due to unforeseeable consequences are not at fault and their acts do not contain elements that constitute grounds for crimes.

The Penal Code also provides other cases of penal liability exclusion such as persons of ineligible age for penal liability (Article 12) and the absence of penal liability capacity (Article 13).-

VNL_KH1 

Send Us Your Comments:

See also:

Video

Vietnam Law & Legal Forum