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Friday, July 1, 2022

Principal penalties under Criminal law

Updated: 10:57’ - 29/08/2008

and Law Institute of Vietnam

Principal penalties are those imposed independently. For each crime, the court can only apply one principal penalty.

In the General Part of Vietnam’s Penal Code, principal penalties are arranged in an order from the lightest to the heaviest penalty and from the least to the most coercive one. Meanwhile, in its Part on Crimes, the Penal Code prescribes the principal penalties in all criminal sanctions, which can be definitive or optional.

Vietnam’s Penal Code contains the following principal penalties:

a/ Warning

On the scope and conditions for application of this penalty, Article 29 of the Penal Code prescribes: “Warning is applied to offenders of less serious crimes involving many extenuating circumstances which, however, do not warrant penalty exemption.”

Being the least coercive among the principal penalties, warning does not restrict or deprive offenders’ legitimate rights and interests such as the rights to freedom and the property ownership rights. However, it is the State’s public censure against offenders, which are declared in the name of the State by courts, thus causing certain mental sufferings to the condemned.

Warning in criminal law differs from caution in administrative sanction in its nature, being more severe, as it always entails a legal consequence, namely the criminal record which the condemned must serve usually for one year and can only be wiped out if they do not commit new crimes after they serve their sentence or the statute of limitations for execution of their sentence expires.

Warning is defined in Clause 1 of 31 out of total 263 articles on specific crimes of the Penal Code’s Part on Crimes as a measure optional to fine, non-custodial reform or termed imprisonment.

In Vietnam’s practical adjudication, courts often impose this penalty on offenders of less serious crimes (such as slander, unintentional infliction of damage to property, and a number of infringements of the marriage and family regime) involving many extenuating circumstances such as harms have not been done, offenders have voluntarily remedied and compensated the damage, crimes were committed precariously, offenders have no previous convictions or records. In these cases, offenders would have been granted clemency. However, penalty exemption or lighter penalties will fail to meet the requirements of educating and reforming the offenders and preventing crimes while the application of heavier principal penalties is yet necessary. Therefore, warning declared by courts as a penalty is strong enough for offenders to realize their wrong-doings and reform themselves.

b/ Fine

According to Article 30 of the Penal Code, “fine is applied as a principal penalty to offenders of less serious crimes of infringing upon the economic management order, public order, administrative management order and a number of other crimes prescribed by this Code.”

As a penalty compelling the condemned to pay a given sum of money into the public fund, fine aims to punish offenders financially, depriving them of illicit gains. This penalty also bears preventive and educative significance.

In the 1985 Penal Code, fine was prescribed as a principal penalty applicable to a small number of crimes (9 specific crimes) such as infringements of aviation rules, violations of maritime regulations, infringements upon copyrights and invention rights. In order to raise the effectiveness of preventing and combating crimes, especially economic crimes, the 1999 Penal Code broadens the scope of application of this principal penalty as a principal penalty in 68 out of total 263 articles on specific crimes. Concretely, it applies to the following groups of crime:

- The group of less serious crimes of infringing upon the economic management order. In these crimes, offenders aim to earn economic profits. Of the total 29 articles on this group of crimes, 18 provide fine as a principal penalty.

- The group of environment-related crimes. These crimes are committed by offenders in production and business activities, who, for their own profits, violate state regulations on the use of natural resources, protection of the living environment, prevention of epidemics, and public sanitation. For lawmakers, offenders must be financially sanctioned in order to deter and educate them to observe law. Of the total 10 articles on these crimes, 9 define fine as a principal penalty.

- The group of less serious crimes of infringing upon the administrative management order, which are specified in 20 articles, of which seven prescribe fine as a principal penalty.

Other less serious crimes, such as those of infringing upon mail, telegraph or telephone secrets and safety of other persons, or infringing upon copyrights, are also liable to this principal penalty.

In principle, if the law does not provide the application of fine as a principal penalty to any crime, courts may not apply it as a principal penalty nor convert an imprisonment penalty into a fine or vice versa. Fine must be paid as a separate penalty.

c/ Non-custodial reform

Non-custodial reform is the most severe penalty among the non-imprisonment penalties. Unlike termed imprisonment, non-custodial reform does not require the condemned to be isolated from their respective living and working environment, but to be placed under the supervision and education by their agencies, organizations, army units, education and training institutions or People’s Committees of communes or wards where they reside and their families in order to educate them in the sense of observance of law and social rules.

Non-custodial reform was for the first time introduced in the 1985 Penal Code, demonstrating a step of development of the penalty system and criminal legislation in Vietnam. This penalty makes the penalty system more balanced and comprehensive, thus meeting the requirements of crime prevention and combat and conforming to the general trend of penalty system development in the world.

In addition to this penalty, the 1985 Penal Code also prescribed reform at disciplinary army units, which was, in essence, non-custodial reform but applicable to offending armymen. Persons liable to this penalty had to serve their sentence at a special establishment, that is the disciplinary army unit. This ran counter to the non-custodial reform’s nature of not depriving the condemned of their freedom. Therefore, lawmakers considered it unnecessary to provide reform at disciplinary army units but only at army units of the offending armymen. Hence, this penalty was blotted out from the 1999 Penal Code.

Non-custodial reform is not only prescribed more extensively in criminal law (in 34% of the 1985 Penal Code’s total articles on specific crimes, then more than 50% of the 1999 Penal Code’s total articles on specific crimes) but also applied more widely in adjudication reality. This demonstrates the State’s humanitarianism and at the same time helps raise the effectiveness of the penalty in social life.

In both penal codes, non-custodial reform is prescribed as a sanction optional to imprisonment or even to warning or fine in a number of cases. It will be applied when the following conditions are met:

First, it applies to offenders of less serious crimes subject to three years in jail as the highest level in the penalty bracket prescribed for such crimes. Non-custodial reform also applies to offenders of serious crimes in the cases prescribed by the Penal Code, namely the cases of causing great harms to the society, for which the maximum level in the penalty bracket prescribed for such crimes is seven years of imprisonment, such as crimes of intentionally acting against state regulations on economic management, which cause serious consequences and some crimes of infringing upon traffic safety regulations.

Second, many extenuating circumstances are involved such as offenders did not intentionally commit the crimes, have clear backgrounds, have stable working places, good personal records and can be reformed and educated and need not to be isolated from society.

Under the current Penal Code, the non-custodial reform duration ranges from six months to three years. If an offender commits many crimes, one of which is liable to non-custodial reform while others to termed imprisonment, the courts will convert non-custodial reform into termed imprisonment.

d/ Expulsion

Expulsion is prescribed as a principal penalty only in the 1999 Penal Code when Vietnam adopted the open-door policy and embarked upon international integration, with many foreigners entering the country for tourism, work or settlement, some of whom committed offenses.

Expulsion is a penalty compelling foreign offenders to depart from the territory of the Socialist Republic of Vietnam within a given period of time.

Due to the complexity in the handling of foreigners, the Penal Code does not set specific conditions for the application of this penalty nor prescribe it in any specific article in its Part on Crimes. This means that expulsion can be applied to any crime prescribed by the Penal Code.

The rights and obligations of the expelled as well as the powers and responsibilities of bodies executing the expulsion penalty were specified in Government Decree No. 54/2001/ND-CP of August 23, 2001, guiding the execution of expulsion penalty.

e/ Termed imprisonment

According to Article 33 of the current Penal Code, “termed imprisonment means forcing the convicted to serve their penalties at detention camps for a certain period of time.”

As compared to warning, fine and non-custodial reform, termed imprisonment is much harsher as it forces the convicted to be isolated from their living and working environments, to be deprived of their rights to freedom and detained in prisons, to labor and study in order to reform themselves into good persons.

Termed imprisonment is the most common penalty in Vietnam’s criminal law. It is prescribed in both Penal Codes of 1985 and 1999, particularly in all 263 articles of the 1999 Penal Code’s Part on Crimes, except Clause 1 of six articles on specific crimes of infringing upon copyrights, usury, etc.

Under the current Penal Code, the termed imprisonment duration ranges from three months to 20 years, the temporary custody duration will be subtracted from the imprisonment term. Persons sentenced to termed imprisonment, who have already served one-third of their imprisonment term and showed their determination to rehabilitate themselves into good persons, may enjoy commutation.

f/ Life imprisonment

According to Article 34 of the current Penal Code, “Life imprisonment is a penalty of indefinite imprisonment applicable to persons who commit particularly serious crimes, but not to the extent of being sentenced to death.”

This penalty deprives the convicted of the rights to freedom, possibly for the rest of their lives. Though being very harsh, only second to capital punishment, life imprisonment still leaves the possibility of commutation for the convicted. If a person subject to life imprisonment has served his sentence for 12 years and showed his great determination for self-rehabilitation, he can enjoy the commutation to 30 years of imprisonment and many commutations. However, he must serve his sentence for 20 years in jail.

In the 1999 Penal Code’s Part on Crimes, life imprisonment is defined in 57 articles, particularly as a sanction optional to death penalty in 28 articles.

g/ Death penalty

Under Article 35 of the current Penal Code, “death penalty is a special penalty only applied to persons committing particularly serious crimes.”

It is the harshest penalty only applicable to cases where criminal acts are especially dangerous and cause particularly serious consequences, the offenders are very bad in personal records and cannot be reformed and educated. Death penalty not only eliminates offenders from social life but also meets the demands for common education and prevention in the society.

In the general trend of modern criminal law, the application scope of death penalty in Vietnam has been constantly narrowed. In the 1985 Penal Code, it was prescribed in 44 articles on crimes. This figure reduces to 29 articles in the 1999 Penal Code, where death penalty is also optional to life imprisonment.

As a manifestation of humanitarianism in Vietnam’s criminal policies, the Penal Code provides the non-application of death penalty to juvenile offenders and women who are pregnant or nursing children of under 36 months when they commit crimes or are brought to trial, which is commuted to life imprisonment. In all circumstances, death penalty cannot be executed immediately after trial. It can be enforced only if the president of the Supreme People’s Court or the chairman of the Supreme People’s Procuracy does not protest or the State President rejects the appeals of the convicted. In case the convicted’s appeals are approved by the State President, death penalty will be commuted to life imprisonment.-

VNL_KH1 

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