>>Crimes against political security under French-ruled Vietnam's criminal laws
>>Crimes prescribed in penal laws of French-ruled Vietnam
Pham Diem
The State and Law Research Institute
Depending on such elements as objective circumstances, faults, subjective consciousness, personal identity of offenders, the then law-makers classified penal liability according to different degrees: aggravation of penal liability, exemption of penal liability, extenuation of penal liability.
I. Aggravation of penal liability
Under the provisions of Chapter VII, the aggravation of penal liability would apply to cases of recidivism which was defined in the first article (Article 56) of this Chapter as follows: Those who have been sentenced by courts for grave crimes, petty crimes or minor offenses then later repeated their crimes or offenses are called recidivists, who shall be subject to penalties heavier than those imposed on the first-time offenders.
Those who repeated grave crimes would consequently be subject to heavier penalties, as provided for in Article 57:
- They would be sentenced to death instead of hard labor for life as they would have been for the first-time commission of grave crimes.
- They would be sentenced to hard labor for life or death instead of exile as they would have been for the first-time commission of such crimes.
- They would be sentenced to hard labor for life instead of hard labor for a definite period of time as they would have been for the first-time commission of such crimes.
- If they would have been jailed, they would now be subject to a prison term doubling the previous one.
- If they would have been sentenced to residence restriction to certain places, now they would face imprisonment with a term doubling the duration of residence restriction.
According to Article 58, those who repeated grave crimes after they had enjoyed great amnesty would not be considered recidivists.
Regarding petty crimes, according to Article 59, only the following cases were considered recidivism:
- Persons who were sentenced to imprisonment for a grave crime or a petty crime with a term of one year or more and committed another petty crime within five years after the expiry of their prison terms.
- Persons who were sentenced to jail for a term of less than one year for a petty crime but relapsed into such crime within five years after they were convicted.
The aggravation of penalties for repetition of petty crime, as provided for also in Article 59, would be the highest penalty for such crime. If a person had already been subject to the highest penalty for the first-time commission of a crime, then repeated such crime, he/she would be subject to a penalty twice heavier than the previous one.
Regarding minor offenses, Article 60 stipulated that only those committed the same minor offense thrice within a year would they be considered recidivists who would be subject to penalties doubling those for the first- time commission of such minor offenses.
II. Exemption and extenuation of penal liability
Offenders would be exempt from penal liability in the following cases, where:
1/ Crimes were committed within given time limits
These cases were specified in various Articles of Chapter VI as follows:
- Grave crimes or petty crimes which were committed for 10 years without being denounced or investigated would be free from retrospective examination for penal liability.
- Grave crimes which were committed for more than 15 years with offenders still being unidentified would not be retrospectively examined for penal liability. If the offenders or the suspects were identified but they fled away and remained at large, the crimes would not be examined for penal liability after 20 years from the time such crimes were committed.
- Petty crimes which were committed for 10 years without any identification or arrest of the offenders would not be retrospectively examined for penal liability.
- Minor offenses would not be retrospectively examined for penal liability after one year from the date the offenses were committed.
2/ Offenders suffer from mental illnesses
According to Articles 74, 75 and 76, the offenders who suffered from mental illnesses would be exempt from penal liability. However, those people had to be kept in hospitals for treatment while their families had to pay compensation for damage they had caused to the victims.
3/ Force majeure incidents occur
According to Article 77, those offenders who could prove that force majeure circumstances had compelled them to commit crimes would be exempt from penal liability. It was clearly explained in this Article that force majeure circumstances meant those where the offenders faced immediate dangers which could be avoided only by committing crimes and such dangers arose out of the offenders’ will.
4/ Case of committing crimes by obeying superiors’ orders
According to Article 48, when doing something on orders of their competent superior mandarins without knowing that they were unlawful, the executors of such orders would not be pleaded guilty. Yet, if they knew that such orders were unlawful but kept executing them, they had to bear penal liability and the extent of liability therefor would be decided by the courts.
5/ Case of legitimate self-defense
According to Article 79, when due to urgent circumstances, a person had to kill, injure or fight other person(s) for the defense of him/herself or of others in a legitimate manner, he/she would not be charged with grave crime or petty crime.
Clause 2 of this Article explained that “legitimate self-defense” meant the defense which was exercised only when a person or others had been infringed upon unjustifiably and such person resisted instantly but only at the extent enough to ward off damage.
6/ Case of offenders being juveniles, aged persons, disabled persons
Under Hoang Viet Hinh Luat, if offenders were juveniles, aged persons or disabled persons they could enjoy exemption or extenuation of penal liability.
Article 83 stipulated that in penal law, juveniles were persons aged under 16 years.
According to Article 84, offenders being children aged 10 years or younger and people aged 90 years or older would be exempt from conviction, except for cases where old persons committed grave crimes harmful to the national security.
Yet, according to Article 85, children aged between 10 to under 16 years who committed grave crimes or petty crimes even they had known that their acts were criminal but kept committing them had to bear the penal liability therefor but at lower levels as follows:
- If they were sentenced to death, hard labor for life or exile for the crimes they had committed, they would now enjoy commutation therefrom to imprisonment for between 10 and 20 years.
- If they were sentenced to termed hard labor, imprisonment or residence restriction, they would now enjoy the commutation therefrom to probation for one to ten years.
- If they committed petty crimes, they would be subject to penalties being half lesser than those imposed on adult offenders for the same crimes.
According to Article 16, children aged between 10 and under 16 years who committed crimes without knowing that their acts were criminal, they would be exempt from conviction but their families had to pay material compensations to the victims.
Under Articles 87 and 88, disabled persons who committed crimes would enjoy commutation and the level thereof depended on the extent of their disability and the types of crime they had committed.-