>>Penal liability in the criminal law of French-ruled Vietnam
>>Crimes prescribed in penal laws of French-ruled Vietnam
Pham Diem
State and Law Research Institute
In the French-ruled Vietnam, under the influence of Western laws, the royal court of Nguyen dynasty gradually annulled a number of punitive forms of extreme barbarism such as “lang tri” or “tung xeo” (execution by dissection), “chem beu dau” (beheading with heads displayed to the public), “thich chu vao nguoi” (stigmatization), etc., which were replaced by new forms of penalty.
According to “Hoang Viet Hinh Luat” (the Penal Law of Vietnamese Emperor), the punitive system included two types of penalty: “chinh hinh” (principal penalty) and “phu hinh” (additional penalty), which were defined in its Article 4 as follows:
- “Chinh hinh” were penalties imposed on offenses without being added with any other penalties.
- “Phu hinh” were secondary penal-ties imposed together with the principal penalties on offenses.
I. “Chinh hinh” (Principal penalties)
According to Article 5 of “Hoang Viet Hinh Luat”, the principal penalties were divided into three types: dai hinh, tieu hinh and hinh phat vi canh according to the graveness of the offenses:
a/ “Dai hinh” (grave offenses), prescribed in Chapter II, for which the following penalties would be imposed:
- “Tu hinh” (Death penalty): Criminals subject to death penalty would face the firing squads or be beheaded before the public. The execution places would be decided by the Ministers’ Council or chosen by the chiefs of the provinces where the crimes were committed by offenders. The death penalty on pregnant offenders would not be executed until 100 days after their childbirth. Death penal-ties would not be executed on public holidays and festive occasions of France and Vietnam as well as on Sundays.
- “Kho sai” (Penal servitude): Men subject to penal servitude would be sent to hard labor at prescribed places while offenders aged 60 years or older and female offenders would undertake hard labor right at places where they were detained.
“Kho sai” saw two levels: “kho sai chung than” (life servitude) and “kho sai co ky han” (time servitude) (for 5 to 20 years).
- “Phat luu” (exile) was a punitive form thereby criminals were sent on exile to distant places. Article 11 stated clearly: “People subject to exile shall be sent to live for life in some place of French colonies”.
- “Cau cam” (solitary confinement): According to Article 13, this is a punitive form whereby the offenders would be isolated from the outside world, but not be subject to hard labor. The “cau cam” term ranges from 5 to 20 years.
- “Ty tri” is a punitive form where-by offenders would be forced to live on probation in places designated by the Justice Minister for 5 to 10 years. Unlike the punitive form of “phat luu”, “ty tri” was a definite penalty and the places for judgement execution were in Vietnam, not French colonies.
Article 14 of Hoang Viet Hinh Luat prescribed that if people subject to “ty tri”, while serving their sentences, fled to other places without permission or returned to their native places, they would be sentenced to “cau cam” (solitary confinement).
b/ “Tieu hinh” (minor offenses), prescribed in Chapter III for which the following two punitive forms would apply:
- “Phat giam” (imprisonment): According to Article 15, those who were penalized with “phat giam” would be put into provincial jails and have to do jobs prescribed by the jails. The imprisonment term ranged from 15 days to 5 years, which was much shorter than the prison terms under “dai hinh”.
- “Phat tien” (pecuniary penalty): A punitive form whereby violators had to pay a sum of money ranging from 5 to 600 Indochinese dong to the public fund. So, the fine here was considered the principal penalty. According to Article 16, if offender were put into custody before they were convicted, the fine amount would be subtracted by 0.3 dong a day or 10 dong a month of custody, and they would be released only when they fully paid the outstanding fine amounts.
c/ “Vi canh” (nuisance offense), prescribed in Chapter IV for which the following two punitive forms would apply:
- “Phat giam” (detention), thereby persons having committed “vi canh” (nuisance) offenses would be detained separately in places reserved for “vi canh” offenders or jointly in places reserved for offenders of “tieu hinh” but refrained from any hard work. The detention time limits would be between 1 and 10 days.
- “Phat tien” (pecuniary penalty): The amounts of fine paid for nuisance offenses were much smaller than those paid for “tieu hinh” offenses, specifically ranging from 0.3 dong to 3 dong.
II. “Phu hinh” (Additional penalties)
Hoang Viet Hinh Luat devoted Chapter V to additional penalties, which, according to Article 18, would be added to the principal penalties and apply only to “dai hinh” and “tieu hinh” offenses, but not to “vi canh” offenses. The additional penalties include the following:
a/ Surveillance by administration: People serving their sentences would be handed over to the administrations of the communes where they were born or temporarily stayed or their wives’ native places for surveillance. These people must not leave such places if not so permitted by the local administration. The time limits for being put under surveillance ranged from 1 to 20 years but were not longer than the time limits for the principal penalties. Particularly for servitude, either time or life, solitary confinement, “ty tri”, the surveillance term must necessarily be 20 years.
b/ Deprivation of rights:
According to Article 27, people who commit “dai hinh” offenses would be stripped of the following civic rights, personal rights and family rights:
- The right to election.
- The right to stand for election.
- The right to join communal councils or advisory councils of the Government.
- The right to be State officials.
- The right to attend family meetings and discussions.
- The right to act as guardians (except as guardians for their own children).
- The right to act as expertisers or witnesses in contracts.
- The right to stand as witnesses at courts.
- The right to be conferred titles and ranks.
For people who commit “tieu hinh” (minor offenses), the above rights would be stripped of by courts only when so specified by any law provisions.
b/ Confiscation of properties
This punitive form would be applied at two levels:
- Confiscation of all properties: Article 30 clearly defined: This would apply to “dai hinh” offenses for which the law contains provisions on confiscation of all properties.
- Confiscation of material evidences or moveables directly related to the offenses.
The confiscated properties would be remitted into the public funds.
c/ Compensation, reimbursement
Public or personal properties stolen by offenders would be reimbursed to the State or their private owners. If the properties were lost, pecuniary compensation had to be paid.
d/ Physical confinement (custody):
Persons who were sentenced to fines or compensation, reimbursement but fail to execute the judgments would be physically confined (put into custody). So, this was in fact a measure to secure the enforcement of the two penalties mentioned above.
e/ Posting up of indictments:
“Dai hinh” offenses, after being convicted, would be posted up in villages of the local provinces where the offenses were committed, in native places of offenders and in other places where the courts deem it necessary.-