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Official Gazette

Thursday, August 13, 2020

Pecuniary penalty under Vietnamese criminal law

Updated: 16:44’ - 28/08/2012

LL. M Nguyen Hoang Lam
People’s Court of My Tu district, Soc Trang province

Fines prescribed in the Penal Code

Fine is prescribed as a principal penalty in Clause 1, Article 30 of the 1999 Penal Code (the Code) as follows: “Fine is applied as a principal penalty to persons committing less serious crimes infringing upon the economic management order, public order, administrative management order and a number of other crimes prescribed by the Code.” Accordingly, fine may be imposed as a principal penalty only for less serious crimes[1] and within the scope and limit prescribed by the Code. Courts may not apply fine as a principal penalty unless it is so prescribed by the Code. Specifically, fine may be applied as a principal penalty for crimes infringing upon the economic management order (Clause 1 of Articles 177, 178 and 179), crimes infringing upon public safety or order (Clause 1 of Articles 202, 203 and 204), crimes infringing upon administrative management order (Clause 1 of Articles 266, 267 and 268), and a number of other crimes (Clause 1 of Article 131 on infringement upon copyright or Clause 1 of Article 142 on illegally using property).

As an additional penalty, fine is prescribed in Clause 2, Article 30 of the Code as follows: “Fine is applied as an additional penalty to persons committing corruption or narcotics-related crimes or other crimes prescribed by this Code.” This provision does not prescribe conditions for application of fine as an additional penalty but only specifies the scope and limit of its application. However, Point f, Clause 2, Article 28 of the Code states that fine may be applied as an additional penalty only when it is not applied as a principal penalty. This means that fine cannot be applied as a principal penalty and an additional penalty in the same case.

Subject to fine as an additional penalty are crimes of corruption (Articles 278 thru 284) and narcotics-related crimes (Articles 192 thru 201) and other crimes prescribed by the Code, such as infringement upon other persons’ privacy or safety of correspondence, telephone or telegraph (Article 125), destroying or deliberately damaging property (Article 143), manufacturing or trading in counterfeit goods (Article 156).

Besides, the Code prescribes fine to be applied as a principal penalty for 21 serious crimes[2].

Principles of application of fine

Courts must base themselves on the bases (general principles) provided in Article 45 of the Code to decide penalties, including provisions of the Code, the nature and extent of danger to the society of criminal acts, personal history of offenders and any circumstances that extenuate or aggravate the penal liability. These bases are closely and complementarily interrelated. In order to decide a lawful, fair and reasonable fine, courts should firmly grasp the contents and significance of these principles as well as their relationship. In addition, when deciding a fine, a court should also base itself on some specific principles:

Firstly, “the fine amount must be decided depending on the nature and seriousness of the crime committed and taking into account the property situation of the offender and the fluctuation of prices…” (Clause 3, Article 30 of the Code). This Clause reflects two aspects of equity: horizontal equity and distributional equity. The provision that the fine amount must be decided based on the nature and seriousness of the crime demonstrates the equity among all people before law (horizontal equity), while the provision on taking into account the property situation of the offender and the fluctuation of prices expresses the spirit of distributional equity. This principle requires courts to consider the property situation of offenders before deciding whether fines should be imposed. Though the Code prescribes the maximum and minimum amounts of fine and fine amounts equal to certain times the value of illegal goods or illicit profits, fine amounts to be imposed on offenders must not only be commensurate with the seriousness of their crimes but also depend on the fluctuation of market prices. This principle aims to guarantee that this type of penalty match the crime’s nature and extent of danger to the society, personal history of the offender as well as circumstances extenuating or aggravating the penal liability, and be enforceable.

However, no legal documents have been so far issued to define and guide the taking into account of the property situation of offenders. In reality, procedure-conducting agencies, especially investigative ones, only focus on proving the criminality of acts and do not intend and are usually unable to examine the property situation of offenders. As a result, some courts have refrained from imposing fines, which are deterrent enough to offenders, or imposed too heavy fines unsuitable to the payment ability of offenders.

Secondly, fines must not be lower than VND 1 million. All articles of the Code on specific crimes specify either the maximum and minimum amounts of fine or a fine amount equal to certain times the value of illegal goods or earned illicit profits in Vietnam dong. This provision aims to prevent courts from imposing fines arbitrarily and concurrently shows the severity of criminal penalties compared to administrative or economic penalties[3].

Thirdly, “fines must not be augmented with other types of penalty; fine amounts shall be added up into a common fine” (Point e, Clause 1, Article 50 of the Code). This provision can be understood that only in cases in which the Code’s articles on specific crimes prescribe fine as a principal penalty or an additional penalty may courts apply this penalty. This also means that in the system of penalties, fine is a penalty lighter than non-custodial reform and termed imprisonment. However, courts may not convert the penalty of non-custodial reform or termed imprisonment into fine in accordance with Article 47 of the Code in case an article prescribes only non-custodial reform or termed imprisonment penalty. Neither courts are allowed to convert fine into imprisonment penalty for penalty augmentation as fines must be served separately. In deciding fines, courts must strictly comply with this principle. For example, if an offender is fined VND 20 million for conducting business illegally (under Clause 1, Article 159) and VND 10 million for deceiving customers (under Clause 1, Article 162) and sentenced to five years of imprisonment for trading in counterfeit goods (under Clause 2, Article 156), the court must add up the two fines into a common fine of VND 30 million and order the offender to serve the common penalties of five years of imprisonment and VND 30 million for all three crimes. Similarly, in case a person who commits two crimes of embezzling property and receiving bribes is fined VND 50 million under Clause 5, Article 278 and VND 80 million under Clause 5, Article 279 of the Code in addition to principal penalties, the court must compel him/her to pay the aggregate fine as an additional penalty of VND 130 million.   

Fourthly, fine is not applicable to offenders aged under 16. Vietnamese lawmakers believe that under-16 persons are still economically dependent and their private property, if any, does not derive from their labor in most cases. As a result, fines imposed on these persons would be unenforceable or ineffective. Article 72 of the Code stipulates: “Fine shall be applied as a principal penalty only to juvenile offenders aged between full 16 and under 18, if such persons have income or private property.”

Method of enforcement

“The fine amount can be paid in a lump sum or installments within time limits decided by courts in judgments.” (Clause 4, Article 30 of the Code). This provision creates favorable conditions for convicts with different financial conditions and in different circumstances to fully pay fines imposed by courts and requires courts to set a time limit for fine payment.

This provision, however, does not prescribe sanctions against convicts who intentionally delay or shirk fine payment, making the application of fine impractical in many cases. 

Our study shows that fine is prescribed as a principal penalty, along with other principal penalties, in 68 out of 263 articles on specific crimes (or 74 out of 1,006 penalty brackets), accounting for 25.8%.

It is prescribed as an additional penalty in 103 out of 236 articles on specific crimes, accounting for 39.16%.

It is prescribed as a principal penalty or an additional penalty in 48 out of 236 articles on specific crimes, accounting for 18.25%.

Twenty articles on specific crimes prescribe fine as a principal penalty only.

Fine is prescribed as a compulsory additional penalty in one article, as the sole non-compulsory additional penalty in 24 articles and as an optional additional penalty among others (confiscation of property and ban on practicing certain occupations or doing certain jobs) in 78 articles.

Can it be concluded from the above figures that fine is mainly used as an additional penalty in the criminal law of Vietnam? And that there are too few articles prescribing fine as a compulsory additional penalty? In our opinion, these provisions do not obligate courts to apply fine in many cases and in fact narrow the scope of application of fine in practice.

Besides, the range between the minimum and maximum fine levels remains too wide, leading to arbitrary application and inhibiting the penalty’s individualized effect on offenders.

Some recommendations

The Political Bureau’s Resolution No. 49-NQ/TW of June 2, 2005, on the strategy for judicial reform through 2020, clearly states one of the orientations for improving the Vietnamese State’s criminal policies through 2020: “To attach importance to perfecting criminal policies and judicial procedures and improving preventive effect and correctional nature of the handling of criminals. To reduce imprisonment penalties and broaden the scope of application of fine and non-custodial reform penalties against a number of crimes. To limit the application of the death penalty to only a few of particularly serious crimes. To reduce maximum penalties which are too heavy for a number of crimes…” In light of this Resolution, we make a number of recommendations as follows:

Firstly, for a number of crimes, fine should be prescribed as the sole principal penalty, not as an optional penalty together with such common penalties as termed imprisonment and non-custodial reform.

Secondly, the scope of application of fine as an additional penalty should also be broadened so that this penalty would not only be applied for crimes infringing upon ownership rights, economic management order or public order, environment-related crimes, crimes of corruption and narcotics-related crimes, which cause material damage, but also for crimes causing political or spiritual harms.

Thirdly, the minimum fine level should be raised to at least VND 2 million to suit the present situation.

Fourthly, to assure enforcement of the penalty, coercive measures against convicts who intentionally delay or shirk fine payment should also be added. One of these measures can be community service to assure equity among offenders, regardless of their financial conditions.

Specifically, Article 30 of the Code should be revised as follows:

“2. Fine is applied as an additional penalty to persons sentenced to non-custodial reform, expulsion, termed imprisonment or life imprisonment for crimes infringing upon ownership rights, crimes infringing upon economic management order, environment-related crimes, crimes infringing upon public order, crimes of corruption, narcotics-related crimes or other crimes prescribed by this Code.

3. The fine amount shall be decided based on the nature and seriousness of crimes committed and taking into account the property situation of offenders and the fluctuation of prices, but must not be lower than two million Vietnam dong.

For offenders who are held in custody or detention, the period of being held in custody or detention shall be cleared against their fines, with each day of this period equal to VND…[4]

4. Fine amounts may be paid in a lump sum or installments within time limits decided by courts in judgments.

If convicts intentionally fail to pay fines, courts shall decide to convert fine into community service[5].”

Finally, a number of provisions on fine in the Part on Crimes should be revised as follows:

- To additionally prescribe fine as a principal penalty or an additional penalty for a number of less serious crimes infringing upon citizens’ democratic freedom, ownership rights, the marriage and family regimes, etc., because some of these crimes are less serious and pose little danger to the society, for which fine is deterrent enough for offenders.

- To increase fine amounts for environment-related crimes (as principal penalty or additional penalty) and crimes of corruption (as additional penalty).

- To prescribe fine as a compulsory additional penalty for a number of crimes, especially crimes for self-seeking purposes, crimes of corruption and crimes involving the use of money as a means of transaction.

- To narrow the range between the minimum and maximum fine amounts for each crime.

- To prescribe fine as an additional penalty for crimes defined in a number of articles, including Article 179, Articles 202 thru 205, 208 thru 217… in order to ensure the consistency of the State’s criminal policy. In addition, if fine is already prescribed as an additional penalty for a crime, then it is unnecessary to prescribe the penalty of property confiscation for the same crime.- 



[1] As defined in Clause 3, Article 8 of the Code, less serious crimes are crimes which cause no great harm to the society and for which the maximum level of the penalty bracket is three years of imprisonment.

[2] As defined in Clause 3, Article 8 of the Code, serious crimes are crimes which cause great harm to the society and for which the maximum level of the penalty bracket is seven years of imprisonment.

[3] For example, under the 2002 Ordinance on Handling of Administrative Violations (revised in 2008), the minimum fine amount is VND 10,000 and the maximum fine amount is VND 500,000,000.

[4] Money amount converted from each day a person is held in custody or temporary detention to be cleared against his/her fine will be decided by lawmakers.

[5] Method of conversion of fine into community service will be decided by lawmakers.

VNL_KH1 

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