>>Basic principles of the criminal law
>>Growth of the criminal law through 1999
PHAM DIEM
State and Law Institute of Vietnam
Penal liability is a basic element of the criminal law, one of extremely important legal, social, theoretical and practical significance as penal liability directly relates to the life, honor and destiny of the people.
Penal liability is not legislatively defined in Vietnam’s Penal Code, but criminologists note the following basic characteristics:
First, penal liability is a specific form of legal responsibility. It includes all aspects of the legal responsibility specified in the criminal law.
Second, penal liability is the inevitable outcome of crime commission. A person reaching a certain age, having the legal capacity and being at fault when committing acts dangerous to society must bear penal liability. This principle assures every citizen of fairness and equality before the law.
Third, penal liability rests with individuals. Though failing to directly provide that only individuals bear penal liability, Vietnam’s Penal Code nevertheless hints through its prescription of the eligible age to bear penal liability, the incapacity to bear penal liability, and intentional and unintentional commission of crimes that only individuals bear penal liability while legal persons do not.
Fourth, penal liability constitutes a special legal relationship between the State and the offenders. In its capacity as a subject of the criminal law relationship, the State may through law enforcement bodies (the investigative agency, the procuracy and the court) examine penal liability and apply penal measures against offenders. The court is the sole body that has the right to declare a person guilty and hand down a judgment as a penalty. Offenders bear penal liability before the State and not before any organization or individual.
Fifth, penal liability is effected through coercive State measures. Persons subject to penal liability must have legitimate material and spiritual rights and interests deprived of or restricted by the State’s coercive apparatus. Penal liability is also effected through such coercive measures as “compulsory medical treatment” (Article 43 of the Penal Code), “confiscation of objects and or money directly related to crimes” (Article 41), and education at localities or reformatories for juvenile offenders (Article 70). These measures may be added to or substitute penalties.
However, in some given cases, penalties may not apply to offenders though they are subject to penal liability. Under Article 54 of the Penal Code, offenders “may be exempt from penalties in cases where the crime commission involves many extenuating circumstances as provided by Clause 1, Article 46 of this Code, deserving special leniency.” This provision demonstrates the principle of humanitarianism and crime grading in Vietnam’s criminal policy.
In short, penal liability is currently understood in Vietnam as the legal outcome of crime commission which offenders must bear before the State for their criminal acts and which will be effected through penalties and other coercive measures prescribed in the Penal Code.
Bases of liability
Vietnam’s Penal Code stipulates in Article 2: “Only those persons who have committed crimes defined by the Penal Code shall bear the penal liabilities therefor.”
This provision is of important socio-political and legal significance. It constitutes an important guarantee of the legislative principle of legitimacy in the criminal law, a guarantee of citizens’ legitimate rights and interests, and abrogates penal liability based on the principle of similarity which existed in Vietnam before the emergence of the country’s first Penal Code in 1985.
The bases of penal liability include objective bases and subjective bases.
From the perspective of objective elements of crimes, only those persons who commit acts dangerous to society shall bear the penal liability, which in form only arises upon the occurrence of such criminal acts. Human ideas and thinking cannot constitute grounds for penal liability examination, no matter how dangerous they are.
From the subjective perspective, the bases of penal liability are offender fault. A person will be examined for penal liability when the following conditions are fully met:
First, he/she has committed acts dangerous to society, causing damage or threatening to cause damage to social relations protected by the Penal Code. Those acts are provided for as crimes by the Penal Code. The danger of acts to society is a compulsory element of all crimes and the core objective sign that a crime has taken place. Acts dangerous to society must be specific activities conceived and carried out by subjects which are contrary to the requirements of the criminal law.
Second, offenders must have penal liability capacity. This means that, when committing acts dangerous to society, they are capable of recognizing and controlling their acts.
Under Article 13 of the Penal Code, “persons who commit acts dangerous to society while suffering from mental disease or another disease which deprives them of their capability to be aware of or to control their acts shall not bear penal liability therefor; to these persons, the measure of forced hospitalization shall apply.”
Cases of reduction but not loss of the capability to be aware of or to control one’s acts due to mental disease are considered having restricted penal liability capacity, which is prescribed by law as an extenuating circumstance in commission of crimes and leads to reduction of penal liability.
Yet, under Article 14 of the Penal Code, “persons who commit crimes while in the state of being intoxicated due to the use of alcohol or other strong intoxicants shall still bear penal liability therefor,” even though the state of intoxication may deprive offenders of the capability to be aware of and control their acts.
Third, under Article 12 of the Penal Code, “persons aged full 16 or older shall bear penal liability for all crimes they commit,” and “persons aged full 14 or older but under full 16 shall bear penal liability for very serious crimes they have intentionally committed or for particularly serious crimes.”
In this spirit, people start to have their penal liability capacity at the age of full 14 and have full penal liability capacity at the age of full 16 while people aged under full 14 do not have penal liability capacity.
These provisions have been formulated on the basis of realities of crime prevention and fighting, physical and psychological characters of Vietnamese as well as references to the criminal law of other countries.
Fourth, to be found at fault in committing acts dangerous to society, persons must act in ways dangerous to society, either intentionally or unintentionally. A person shall bear penal liability for committing an act dangerous to society if he/she is at fault when committing such act. Being at fault constitutes a basic principle in the criminal law of Vietnam. A person is not guilty if he/she is not at fault. Faults prescribed by the criminal law cover intentional faults and unintentional faults.
Under Article 9 of the Penal Code, intentional commission of crimes falls under the following circumstances:
- The offenders are clearly aware that their acts are dangerous to the society, foresee the consequences of such acts and wish such consequences to occur.
- The offenders are clearly aware that their acts are dangerous to the society, foresee the consequences that such acts may entail and do not wish, but consciously allow, such consequences to occur.
Meanwhile, cases of unintentional commission of crimes are specified in Article 10 as follows:
- The offenders foresee that their acts may cause harmful consequences to the society, but think that such consequences shall not occur or can be warded off.
- The offenders do not foresee that their acts may cause harmful consequences to society though they must have foreseen or can foresee such consequences.
Statute of limitations
Under Article 23 of the Penal Code, the statute of limitations for penal liability examination sets the time limits upon the expiry of which the offenders shall not be examined for penal liability.
The efficacy of penal liability examination greatly depends on the duration between the time of committing a crime and the time of imposing a penalty. The shorter this duration; the more efficient the penal liability examination; while the longer this duration; the less efficient the penal liability examination. If this duration elapses for a long period and the offenders do not commit new crimes or do not deliberately flee, penal liability examination becomes no longer necessary.
Under Vietnam’s criminal law, the statute of limitations for penal liability examination will apply when the following conditions are fully met:
- From the time of crime commission, a period of time prescribed by the Penal Code has elapsed. According to Article 23 of the Penal Code, the statute of limitations for penal liability examination shall be 5 years for less serious crimes; 10 years for serious crimes; 15 years for very serious crimes and 20 years for particularly serious crimes.
- Within the above-prescribed time limits, the offenders do not commit new crimes for which the Penal Code stipulates a maximum penalty of more than one year.
- Within the above-prescribed time limits the offenders do not deliberately flee or though they have fled are not hunted for or subject to warrants of competent bodies.
Application of the statute of limitations for penal liability examination demonstrates reasonableness and humanitarianism. Yet, such statute of limitations will not apply to such crimes as infringing upon national security, undermining peace, crimes against humanity and war crimes.-