>>Basic principles of Vietnam's ancient laws
Pham Diem
The State and Law Research Institute
In Vietnamese ancient laws, the law-makers classified with full consciousness crimes into different categories: position-related crimes, crimes against the national security, military crimes, crimes of burglary and robbery, sexual crimes, economic crimes, etc.
The position-related crimes were those committed by mandarins who held positions and powers. Formerly, the royal dynasties often attached great importance to cleansing the bureaucracy apparatus- the main instrument to rule the country. As a result, the position-related crimes were comprehensively and specifically prescribed in the ancient laws, as clearly seen in Chapter “Vi Che” (Mandarindom) of the Hong Duc Code (the 15th century) and Chapter “Luat Lai” (Regulations on Mandarins) of the Gia Long Code (the 19th century).
According to the ancient law-makers, the position-related crimes were categorized into the crimes of breaching regulations on mandarin recruitment and appointment, the crimes of breaching the official-duty relations and the crimes of corruption.
1. Crimes of breaching regulations on mandarin recruitment and appointment
In the mandarin regime, the recruitment and appointment of mandarins constituted the primary process decisive to the quality of the contingent of bureaucrats. Therefore, this process was strictly provided for by the ancient laws which also spelt out severe remedies against acts of violation.
Article 97 of Hong Duc Code defined the crimes of inventing at one’s own will mandarin posts: Mandarins are posted in certain numbers. Those who recruit or appoint one mandarin in excess of the prescribed number shall be penalized with 60 canings and demoted, or two more mandarins in excess of the prescribed number shall be penalized with corvee labor. The successor who knows such case but takes no action shall be subject to a penalty one grade lighter than his predecessor. Meanwhile, the recruited or appointed mandarins shall be penalized with 50 whippings.
These crimes were also specified in Gia Long Code. According to its Article 47, mandarins must be recruited by the royal court. If high-ranking mandarins made the recruitment at their own will, they shall be beheaded. In their argument for such provision, the then law-makers explained that the right to employ human resources belonged to the king. If a high-ranking mandarin recruited mandarins without the king’s order and authorization, he actually infringed upon the king’s right. For this he deserved such severe penalty.
Under Article 49 of the same Code, mandarins of all agencies (from the central to the grassroots levels) are recruited and appointed in certain numbers. If more are recruited and appointed, the incumbent mandarins (in charge of recruitment of mandarins) shall be penalized with 100 canings. If 3 more mandarins are recruited, the recruiters shall be subject to the penalty of one grade heavier; the heaviest penalty is 100 canings and 3 years of corvee labor. Heavier penalties shall be imposed on the mandarins who do so for bribes.
During the feudal time in Vietnam, the monarchal State stipulated three major modes of mandarin recruitment:
- The mode of “khoa cu” (academic examinations) through which the best would be recruited and appointed to various posts of mandarin.
- The mode of “tien cu” (recommendation) thereby persons with talents and good virtues would be recommended to the State for appointment to various posts of mandarin.
- The mode of “tap am” (inheritance of father’s feudal titles and positions), thereby sons of mandarins and aristocrats might be recruited to be mandarins when they are grown up.
Aiming to ensure the recruitment and appointment of right persons with talents and good virtues, the feudal laws severely punished acts against the regulations of mandarin recruitment and appointment. Hong Duc Code stated in its Article 98: Mandarins who mark the examination papers and have their relatives sit in such examinations must ask for being relieved from the tasks of marking the examinations papers. If they fail to do so, they shall be penalized with 50 whippings; those mandarins who are tasked to seal the examination papers but fail to fulfil their responsibility shall be beaten with 80 canings.
According to Article 99 of this Code, any candidates who ask other persons to do the examinations for them or who bring textbooks and/or notebooks into the examination rooms shall all be penalized with 80 canings. Article 100 stipulated that any proctors who had the duty to inspect carriers of textbooks and/or notebooks into examination rooms but failed to do so or inspected them perfunctorily would be penalized with 60 canings. On the recommendation of people for recruitment and appointment to the posts of mandarin, Hong Duc Code stated in its Article 174: Those who are tasked to recommend persons for mandarins’ posts but fail to recommend excellent persons shall be demoted or sanctioned, depending on the seriousness of the violations. If they did so for personal feelings or money, the penalty imposed on them shall be two grades heavier.
In Gia Long Code, Article 51 spelt out the penalties against those who recommended and recruited unqualified persons, stating that those who recom-mend and recruit one person without any talents shall be penalized with 80 canings, and those who recommend and recruit two or more unqualified persons shall be subject to 100 canings, and the recommended persons who are aware of this shall be subject to the same penalty. Meanwhile, Article 52 of the same Code prescribed penalties against those who recommended ex-convict mandarins, stating that mandarins who were once convicted or dismissed for their crimes must not be recommended for mandarins’ posts; failing to do so, both the recommending and recommen-ded persons shall be penalized with 100 canings and dismissed. If they did so for bribes, the culprits shall be more severely punished. Regarding “tap am” (inheriting fathers’ feudal titles), Hong Duc Code (Article 146) stated those mandarins who approve “tap am” in contravention of regulations shall be subject to “do” (corvee labor) or “luu” (exile to remote areas). Similar provi-sions were also found in Article 46 of Gia Long Code.
2. Crimes of breaching the working relationships
In order to ensure the ruling effect and efficiency of the bureaucracy apparatus, the ancient laws specifically and comprehensively prescribed the working relationships. They were the relations between the king and the mandarins, the working relations among agencies, the working relations between the superior and the subordinate, between obligations and rights of mandarins. All acts of breaching the official-duty regime were all severely punished.
Hong Duc Code stipulated in its Article 100: Those mandarins who fail to attend the imperial audience to discuss national affairs without plausible reasons or who take leave beyond the permitted time limit shall all be fined 10 “quan” (the ancient currency unit comprising 100 coins).
According to Article 102 of the same Code, those mandarins who followed and served the king but came late or left early would be demoted and subject to corvee labor.
Gia Long Code stated in its Article 55: Those mandarins who are in capital city but fail to come to the royal court to work without any reasons and those mandarins who are outside the capital city but fail to come to the office for work, or those mandarins who prolong their leaves without any plausible reasons, shall all be subject to a penalty of from 10 whippings to 80 canings. The then law- makers argued that coming to work in the royal courts or going to work in their offices were daily routine activities of mandarins. The failure to do so without plausible reasons or the prolongation of leaves demonstrated nothing but laziness and duty negligence; hence, the subjects had to be penalized.
According to Article 199 of Hong Duc Code, any mandarins who neglected their duty would be beaten with 70 sticks as penalty. If their negligence resulted in serious consequences, the penalty would be one grade heavier. Or any mandarins who were assigned urgent tasks but failed to devote themselves thereto, thus causing material and human losses to the State would be subject to hard labor. Meanwhile, Article 121 stipulated that any mandarins who deliberately delayed the performance of tasks which should have been performed immediately would be relieved from their posts. Those who delayed the promulgation of an order for one day would be beaten with 50 whippings, and for three more days would be subject to the penalty one grade heavier (Article 119). Those who act contrarily to the orders they had received for implementation would be sent to hard labor. If errors were committed in the implementation of orders, they would be demoted. Those who were assigned to draft decrees but failed to do so or inscribed words mistakenly or wrongly would be penalized with 80 canings. If the decrees were drafted unfaithfully to the king’s ideas, the drafters would be demoted or sent to hard labor (Article 123). Those who received decrees for implementation and corrected the mistakes they had found therein at their own will would be penalized with 80 canings (Article 124).
According to Article 120, any mandarins who were sent on inspection tours and reported on the inspection results untruthfully would be demoted or sent to hard labor. If they did so for personal affection or revenge, they would be more severely punished; if they did so for bribes, the penalty of two grades heavier shall be imposed. Any superior mandarins who promoted or transferred subordinate mandarins improperly would have to right their mistakes and be sent to hard labor. If serious offenses were committed, more severe penalties would be imposed (Article 152).
Gia Long Code also contained similar provisions. For instance, Article 53 stipulated that any mandarins who neglected their duties would be penalized with 40 whippings, and who deserted their posts would be subject to 100 canings. Or, according to Article 60, any mandarins who were assigned to draft the king’s orders but failed to do so or deliberately drafted them improperly would be penalized with 100 sticks. Meanwhile, Article 69 stipulated that those who enforced the orders and added or took out words therefrom at their own will would be beaten with 60 sticks, etc.
3. Crimes of corruption
In Vietnam’s ancient laws, special attention was paid to the punishment of corruption acts committed by mandarins as well as the bribe givers and takers.
Hong Duc Code stated in its Article 138: Any mandarins who act against laws and take bribes valued between 1 and 9 “quan” shall be demoted or dismissed from office, valued at between 10 and 19 “quan” shall be sent to hard labor or on exile to remote areas, at 20 or more “quan” shall be sentenced to beheading.
According to Article 137, any persons who request mandarins to do illegal things, shall be fined; if the mandarins did as requested, they shall be dismissed from office. Those who count on their families’ positions and nobility and ask for positions and titles would be sent to hard labor (Article 139). Under Article 140, the bribe givers who are deemed totally wrong shall be pleaded guilty, depending on their acts; any persons who actually become victims of injustice and have to offer bribes in order not to be charged with crimes shall enjoy commutation; and those who offer bribes on others’ behalf shall be penalized two grades less severe than the bribe takers.
According to the said Code, local mandarins who harass people for money shall be demoted and pay the compen-sation doubling the amount they got from their victims (Article 163); or mandarins who employ soldiers to do their personal work shall be dismissed from office (Article 166); or mandarins who are sent on official duty to localities and compel people to receive them or harass local people for money shall be discharged from office or sent to hard labor and at the same time have to pay compensation doubling the amount they got from their victims (Article 182); or mandarins who use public property for personal purposes shall be dismissed from office and make compensation (Article 560), etc.
Gia Long Code devoted 9 articles to the prescription of corruption crimes. According to Article 312, mandarins who take bribes shall be subject to various penalties, depending on the amounts they took as bribes: Taking one tael of gold or less, would be subject to 70 sticks; from 1 to 5 taels, 80 sticks; 6 to 10 taels, 90 sticks; 11 to 15 taels, 100 sticks; 80 taels or more, hanging.
Meanwhile, Article 316 prescribed the crimes of giving bribes and penalties to be imposed on bribe givers. According to Article 317, mandarins who count on their positions and powers to compel other persons to lend them money or things, they shall be penalized according to the value of the objects. According to Article 319, mandarins who glean wages of soldiers shall be penalized, depending on the amounts they appropriated. If the amount was valued at 120 taels of gold or more, they shall be hanged. Under Article 320, any mandarins who captured robbers and appropriate the material evidences shall be subject to 40 whippings.-