>>New concepts in the 1999 Penal Code
>>Growth of the criminal law through 1999
PHAM DIEM
State and Law Institute of Vietnam
Formulated and promulgated during the years of Vietnam’s centrally planned, state-subsidized economy, the country’s 1985 Penal Code, though revised four times in ten years, was hamstrung with numerous shortcomings and was no longer suitable to the new era in which Vietnam had embarked with “doi moi” (renewal) and international integration.
First, it could not regulate new relations of the market economy and failed to correctly reflect the country’s crime situation, with many of its provisions being inadequately or inefficiently applicable to realities. Its amendments remained non-comprehensive and not in conformity to the revised economic, administrative and civil law.
Second, it lacked provisions on such specific issues as crime prevention and detection. Its provisions on conspiracy in the General Part and on economic or position-related crimes in the Part on Crimes still failed to permit the full exposure of organized smuggling and corruption crimes.
Though having marked a new step in the development of Vietnam’s criminal law, the 1985 Penal Code’s categorization of crimes into serious crimes and less serious crimes, based on punitive levels, failed to take into account the subjective aspects of crimes. Consequently, in not a few cases, acts causing serious consequences were penalized with less than five years imprisonment just because of “unintentional faults.” The sanctions prescribed in the Code covered a wide range from the lowest level to the highest level of punishment, leading to difficult or even arbitrary application by courts.
The Code also lacked provisions on international crimes was thus unable to meet the requirements of international integration at a time when external relations were constantly expanding, with many international treaties being signed and various commitments made and realized.
With these limitations, especially in the context in which Vietnam was in the process of building a state ruled by law, the 1985 Penal Code was substantially and comprehensively revised into the 1999 Penal Code.
The 1999 Penal Code was formulated on the basis of experiences drawn from the struggle against assorted crimes, the actual application of the 1985 Penal Code and the practical adjudication by courts.
It reflected the will of law enforcement bodies, state agencies, social organizations and citizens to actively fight and prevent crime, combining severe punishment with clemency, education with deterrence, punitive sanctions with economic and administrative measures. This idea testified to the trend of limiting punitive forms of imprisonment and capital punishment.
The 1999 Penal Code clearly demonstrated the democratic principles of the criminal law in the period of building a state ruled by law and embarking upon international integration, warding off and fighting assorted international crimes and respecting treaties to which Vietnam has signed or acceded. It clearly reflected a combination of national and epochal character.
The 1999 Penal Code saw renewal in both content and structure.
Substantively, lawmakers for the first time removed all normative provisions of criminal procedures from the criminal law, including provisions on determination of the courts’ jurisdiction to decide on penalties, which had once existed in the 1985 Penal Code. Also eliminated from the new Code were such casual provisions as “except otherwise provides for by law,” which had appeared in the 1985 Penal Code.
The 1985 Penal Code classified crimes into serious crimes and less serious crimes based on the punitive levels, but the 1999 Penal Code did it differently, dividing crime into four categories: less serious crimes, serious crimes, very serious crimes and especially serious crimes, based on subjective and objective elements of crimes and degrees of damage caused.
This way of classifying crimes has contributed practically to further differentiating and individualizing the penal liabilities of offenders. While the 1985 Penal Code only provided that persons who commit crimes in a state of intoxication should still bear the penal liability, the 1999 Penal Code added that persons who use other strong stimulants should also bear penal liability. The later Code also separately provided for penal liability for preparation for crime commission and penal liability for uncompleted commission of crimes, whereas the 1985 Penal Code failed to do so.
On penalties and deciding penalties, the 1999 Penal Code devoted a separate provision, defining the penalty as “the most severe coercive measure applied by the State so as to strip or restrict the rights and interests of offenders” (Paragraph 1 of Article 26).
The new Code increased the levels of fines and broadened the scope of application of pecuniary penalties to a number of crimes as a principal or additional penalty. In addition, it added a new punitive form, namely expulsion, as a principal or additional penalty applicable to foreign offenders. The 1999 Penal Code also rid itself of capital punishment for 13 of 40 crimes subject to death sentence under the 1985 Penal Code.
It also eliminated from the 1985 Penal Code’s list of circumstances extenuating penal liability the circumstance of committing crimes due to poor professional qualifications while adding two new ones, the circumstance in which “offenders have redeemed their faults with achievements” (Point r, Clause 1, Article 46) and the circumstance in which “offenders have recorded outstanding achievements in production, combat, study or work” (Point s, Clause 1, Article 46).
Regarding circumstances aggravating penal liability, the 1999 Penal Code added new ones, i.e., “committing crimes causing serious, very serious or particularly serious consequences” (Point j, Clause 1, Article 48).
Many amendments were also made to provisions on specific crimes due to their evolution, diversity and complexity, with the abolition of acts previously described by the 1985 Code as crimes such as opposing the socialist state, destroying currency, abusing the slaughter of domestic animals, illegally producing or trading in alcohol or cigarettes, etc.
Unlike the 1985 Penal Code, which categorized the crimes of infringing upon ownership rights into crimes of infringing upon socialist ownership rights and crimes of infringing upon citizens’ ownership rights, the 1999 Penal Code merged these two categories of crime into one, namely the crimes of infringing upon ownership rights. This testifies to the Vietnamese state’s policy of non-discrimination between ownership forms and economic sectors in the market economy.
Many new crimes and criminal elements were specified in the 1999 Penal Code, including crimes of fraudulent advertising, crimes of deliberately acting against regulations on distribution of relief money and goods, crimes of violating the regulations on grant of industrial property protection deeds, crimes of infringing upon industrial property rights, and crimes of violating the regulations on loan provision in activities of credit institutions.
Compared to the 1985 Penal Code and the criminal law of previous periods, the 1999 Penal Code saw substantial and comprehensive renewal both in form and contents. It contained 24 chapters with 344 articles. Its General Part was composed of 10 chapters with 77 articles and the Part on Crimes consisted of 14 chapters with 267 articles, four chapters and 33 articles more than the 1985 Penal Code. Of its 344 articles, 51 were new, including five in the General Part and 46 in the Part on Crimes.
The General Part included four new chapters:
- Chapter IV: Statute of limitations for penal liability examination, penal liability exemption.
- Chapter VII: Deciding penalties.
- Chapter VIII: Statute of limitations for execution of judgments, suspension of sentence, reduction of penalty term.
- Chapter IX: Remission of criminal records.
This Chapter was formulated on the basis of separation from Chapter IV of the 1985 Penal Code. Chapter VIII of the 1985 Penal Code was in turn abrogated and its contents incorporated into other chapters.
The Part on Crimes also contained four new chapters:
- Chapter XII: Environment-related crimes.
- Chapter XIV: Crimes infringing upon ownership rights. (These institutions in the 1985 Penal Code were arranged into two chapters).
- Chapter XIX: Crimes infringing upon public safety and order.
- Chapter XX: Crimes infringing upon administrative order. (This Chapter was formulated on the basis of separation from Chapter VIII of the Part on Crimes of the 1985 Penal Code).
Unlike the 1985 Penal Code, in which articles in the General Part and those in the Part on Crimes were numbered separately, the 1999 Penal Code numbered all its articles in consecutive order from first to last, greatly facilitating citation of the law.
Also noteworthy is that the 1999 Penal Code was arranged according to basic concepts of the criminal law, such as the statute of limitations was defined in a separate chapter (Chapter IV); penalties in another (Chapter VII); and remission of criminal records in another (Chapter IX).
In short, if the 1985 Penal Code marked a new step of development in Vietnam’s criminal law, the 1999 Penal Code constituted a landmark for renewal of Vietnam’s criminal law, a renewal of legal thinking, law-making techniques and of content of the law.-