Dr. Le Thi Diem Hang
Hanoi Law University
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Vulnerable groups have long been accorded special protection in Vietnam’s social policy framework. Criminal law serves as a key instrument through which the State safeguards the rights of these persons, whether as victims or offenders. This article analyses the provisions of Vietnam’s criminal law in protecting vulnerable persons, from codification practice prior to 1985 to the progressive provisions of the Penal Codes of 1985, 1999 and 2015. Drawing on major Party resolutions shaping the country’s new era of development, this article puts forward proposals to better guarantee the rights of vulnerable people through further reforms of criminal legislation.
Introduction
Vietnam is entering a new phase of national development, defined by aspirations for prosperity, social equity and global standing. Central to this vision is the principle that no one will be left behind, particularly vulnerable persons - those who face a higher risk of infringements upon their rights and who are recognised under human rights legislation as in need of special protection[2].
Criminal law, serving as the State’s ultimate safeguard of human rights, must evolve accordingly. This includes protecting vulnerable persons both as victims and as offenders. Despite consistent constitutional commitments, notably under the 2013 Constitution, gaps remain. Vulnerable groups continue to face rising victimisation, while judicial treatment of offenders within these groups has not always reflected necessary leniency or appropriate differentiation[3].
At the same time, international legal frameworks place strong emphasis on protecting such groups. As an active participant in global criminal justice commitments, Vietnam should critically assess its legal system in this regard.
Historically, traditions of mutual support and community solidarity have complemented formal legal rules. These values have been reflected in successive legal systems, particularly since the establishment of the Democratic Republic of Vietnam in 1945[4]. Across legislative development, four core vulnerable groups have consistently received attention under the 2015 Penal Code: women, children, persons with disabilities and the elderly.
Protecting vulnerable persons under criminal legislation before 1985
The protection of vulnerable persons through Vietnam’s criminal law has deep historical roots. Even under harsh penal systems, humanitarian provisions were evident. During the Ly dynasty, royal edicts already allowed reduced penalties for the elderly, children and the infirm. Specifically, in 1042, King Ly Thai Tong issued an edict allowing offenders “aged between 70 and 80, between 10 and 15, and those who are sick or infirm...” to commute their punishment through monetary redemption[5]. These principles were codified in subsequent legal systems, including the Hong Duc Code (also known as Quoc trieu hinh luat or Luat hinh trieu Le).
As a significant landmark of legislative development in Vietnam’s feudal era, the Hong Duc Code carried forward the humanistic traditions of the Ly-Tran dynasties, while incorporating the ethical values of Buddhism and Confucianism in practice[6] and reflecting the progressive humanitarian ideals of the Early Le period. In the criminal sphere - where Confucian philosophy exerted the strongest influence - Le Dynasty legislators nevertheless extended particular leniency and humane treatment to women, children, the elderly and persons with disabilities. These policies reflected the humanitarian spirit and moral tradition of the Vietnamese people: respect for the elderly, care of the young, regard for women, and protection and support for persons with disabilities[7].
The Hong Duc Code also contained provisions aimed at protecting vulnerable persons who were victims of crime. For instance, under the Chapter “Illicit Sexual Relations”, acts such as adultery with another man’s wife or seducing an unmarried woman were punishable by penal servitude or exile, together with an order to pay compensation; intermediaries were likewise subject to punishment. In addition, Article 404 stipulated that “sexual intercourse with a girl aged 12 or under, even with her consent, shall be punished as rape.”[8] Article 409 further provided that prison officers or warders who engaged in sexual acts with women or female litigants would be subject to a penalty one grade heavier than that for ordinary illicit intercourse. If the victim consented, her penalty would be reduced by three grades, while a victim subjected to coercion would incur no penal liability.
In cases involving persons who were ill, destitute, or unsupported, the Hong Duc Code clearly imposed on officers the duty to provide assistance. Those who neglected such persons, or who misappropriated the food or clothing allocated to them, would be liable to demotion, dismissal, corporal punishment, or penalties equivalent to those imposed for embezzling public property (Articles 294 and 295).
For vulnerable offenders, the Hong Duc Code introduced many lenient provisions. These included the temporal application of the criminal law, as set out in Article 17: “In case a person commits an offence before becoming old or disabled, but the offence is detected only after he has become old or disabled, he shall be punished under the provisions applicable to the old or disabled... In case a person committs an offence when he is a child, but the offence is discovered only after he had grown up, he would be punished under the provisions applicable to children.”
The provisions on penalties most clearly reflected the humane policy of criminal law in this period towards children, women, the elderly or persons with disabilities. Article 16 provided: “In case offenders aged 80 or older, or 10 years or younger, commit offences punishable by death, the case must be reported to the King for decision; persons aged 90 or older, or seven years or younger, shall not be executed even if sentenced to death.” Caning was not applied to women; for penal servitude, women were assigned lighter jobs than men; and for exile, women were not required to wear shackles.
The Hong Duc Code also contained separate provisions protecting pregnant women. Article 680 said: “A woman sentenced to death or a lesser penalty who is pregnant will be allowed to give birth, and the penalty will be carried out only 100 days after childbirth... If the sentence is carried out within 100 days after childbirth, the offence will be considered as having been committed before childbirth and the penalty reduced by one grade.”
During the period of French colonial rule, under the “divide-and-rule” policy, Vietnam was split into three regions, each governed by a distinct legal regime and separate criminal legislation. Specifically, pursuant to the Decree of December 31, 1912, issued by the Governor-General of Indochina, 56 articles of the French Penal Code were amended to form the Hinh luat canh cai (Reformed Penal Code), which was enforced in Cochinchina. In Tonkin, the Decree dated December 2, 1921, of the Governor-General of Indochina allowed the application of the Luat hinh An Nam (Annamite Penal Code). In Annam, by Royal Ordinance 43 of July 31, 1933, promulgated by Emperor Bao Dai, the Hoang Viet hinh luat (Code pénal de l’Annam in French) was enacted[9].
However, the Luat hinh An Nam did not differ in substance from the Hinh luat canh cai[10], while the Hoang Viet hinh luat was in essence largely a replication of the Hinh luat canh cai. It may therefore be concluded that the criminal law of this period was, in substance, broadly uniform throughout Vietnam.
Viewed objectively, a number of policies on the protection of vulnerable persons were also reflected in the criminal law of this period. Certain acts infringing upon vulnerable persons were defined as criminal offences and subject to criminal liability with severe penalties, such as sexual intercourse with any man or woman who is insane, mute, disabled, epileptic or mentally ill, and is being treated in a public or private hospital specialising in mental illness, ect. (Article 302 of the Hoang Viet hinh luat), or sexual intercourse with a girl under the age of 15 (Article 303), etc.
The protection of the rights of vulnerable offenders was also recognised during this period. For example, regarding the age of criminal liability, “any person who commits an offence but, when the offence is discovered, is aged 10 or younger, or 90 or older, will be exempt from criminal punishment” (Article 84 of the Hoang Viet hinh luat). Meanwhile, persons aged between 10 and under 16 were not subject to the death penalty, life penal servitude or exile, and could be sentenced to no more than 20 years’ imprisonment (Article 85); and persons aged 70 or older, and persons with disabilities or serious infirmities, were entitled to reduced penalties (Article 87).
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Following the 1945 August Revolution, Vietnam temporarily retained the existing legal frameworks under strict conditions of compatibility with the new regime. Humanitarian provisions were maintained. In the North, criminal law developed through the State’s decrees and directives and review reports issued by the Supreme People’s Court[11], rather than an official code on crimes and penalties. Courts treated offences against vulnerable persons as aggravating circumstances, while recognising mitigating circumstances for offenders, particularly juveniles and women.
After the Great Spring Victory of 1975, the country was fully reunified. However, to meet the pressing demands of post-war economic recovery and national development, Vietnam’s criminal law was not yet codified into a unified legal instrument. In essence, previously enacted legislation remained in force, and humanitarian policies towards vulnerable persons continued to be upheld. For instance, acts that incite or induce minors to commit offences, or offend persons requiring special protection on moral and humanitarian grounds, such as children, the elderly and the sick, were treated as aggravating circumstances in determining criminal liability, etc.
Guaranteeing the rights of vulnerable people under the 1985 and 1999 Penal Codes
The 1985 Penal Code marked Vietnam’s first comprehensive codification of criminal law, consolidating earlier principles and practices. It formally recognised the protection of vulnerable persons, a trend further developed in the 1999 Penal Code.
Offences committed against vulnerable persons were treated as aggravating circumstances for certain crimes[12].
Regarding the protection of certain fundamental rights of vulnerable groups, the Penal Codes of 1985 and 1999 retained the provisions from earlier legal instruments while introducing additions to meet practical requirements. The 1985 Penal Code already recognised fundamental rights of vulnerable persons, including the right to life (Article 101). The 1999 Penal Code later introduced the aggravating circumstance of killing a child under Article 93.1.c, with severe penalties, including the possible imposition of the death penalty.
As for the right to health protection, all four groups, namely elderly persons, children, pregnant women and persons with disabilities, were recognised as constituent elements of certain offences or aggravating circumstances determining the applicable penalty range under Article 104.1.d on intentionally inflicting injury or causing harm to the health of another person, and Article 110.2.a on maltreating another person, of the 1999 Penal Code.
The right to bodily liberty was also given attention in the Penal Codes of 1985 and 1999, as both Codes criminalised trafficking in women and the trafficking, swapping or appropriation of children, with severe penalties of up to life imprisonment (Articles 115 and 149 of the 1985 Penal Code, and Articles 119 and 120 of the 1999 Penal Code).
In addition, certain specific rights, such as women’s right to equality, were recognised in Article 125 of the 1985 Penal Code and subsequently in Article 130 of the 1999 Penal Code. Notably, the 1999 Penal Code recognised, for the first time, the offence of unlawful abortion (Article 243), to protect women’s reproductive health. Both Codes also contained a separate chapter on offences infringing upon the marriage and family regime, with women and children being the principal protected groups.
Both Codes acknowledged certain personal circumstances of offenders, such as pregnant women, elderly persons, or persons suffering from illnesses that impaired their cognitive or behaviour control capacity, as mitigating circumstances in determining criminal liability (Article 38 of the 1985 Penal Code and Article 46 of the 1999 Penal Code). Specifically, the death penalty was neither imposed nor carried out in respect of pregnant women or women raising children under 36 months of age (Article 35 of the 1999 Penal Code). These women may be considered for postponement or suspension of the prison sentence.
The Codes also introduced provisions more favourable to offenders who are children, persons with disabilities or the elderly. The Codes consistently set the minimum age of criminal liability at 14 years and laid down basic principles for handling offences committed by children (Article 59 of the 1985 Penal Code and Article 69 of the 1999 Penal Code). Notably, the 1999 Penal Code introduced provisions more favourable to offenders, including the addition of a fine as a principal penalty and a maximum penalty applicable to juvenile offenders which is 18 years lower than that under the 1985 Penal Code (Article 64 of the 1985 Penal Code and Article 74 of the 1999 Penal Code).
For persons with neurological or mental disabilities, both Codes provided that they would not bear criminal liability if, at the time of committing the offence, they were incapable of perceiving or controlling their acts (Article 12 of the 1985 Penal Code and Article 13 of the 1999 Penal Code). Where these conditions merely impaired that capacity, they were treated as mitigating circumstances for criminal liability.
With respect to elderly offenders, under both Codes, the offenders’ advanced age was taken into account primarily as a basis for reducing the term of sentence to be served, allowing earlier release or greater sentence reductions compared to ordinary cases (Article 51 of the 1985 Penal Code and Article 59 of the 1999 Penal Code).
Safeguarding the vulnerable under the 2015 Penal Code
The 2015 Penal Code continues to protect vulnerable persons. It consolidates earlier developments while introducing new provisions aligned with contemporary legal and social realities.
The Code protects vulnerable persons as victims of crime by defining acts against such persons as constituent elements of certain offences, in a manner consistent with the earlier Penal Codes. These include Article 165 on infringing upon gender equality; Article 316 on illegal abortion; and Chapter VII on offences infringing upon the marriage and family regime, in which women and children are the principal subjects of protection. In addition, the 2015 Penal Code criminalises, for the first time, the act of organising surrogacy for commercial purposes in Article 187, in order to protect women’s right to motherhood and to punish acts that exploit women’s maternal role for profit.
In addition, the provisions on penalties, the State’s most severe criminal sanctions, also reflect the spirit of protecting vulnerable groups. Specifically, for non-custodial reform, community service is not applied to pregnant women or women raising children under six months of age, elderly and weak persons, persons suffering from terminal diseases, or persons with severe or extremely severe disabilities (Article 36.4). Particularly in relation to the death penalty, Article 40 of the 2015 Penal Code provides that this penalty is neither imposed nor carried out in respect of persons who were under 18 years of age at the time of committing the offence, pregnant women, women raising children under 36 months of age, persons aged 75 or older, or persons with terminal cancer.
Furthermore, the Code provides exemption from criminal liability and several regulations relating to the serving of sentences, including exemption from serving sentences, sentence reduction, conditional early release, postponement of imprisonment and suspension of imprisonment. These regimes contain provisions more favourable to vulnerable groups, such as the elderly, persons with disabilities, and persons living with HIV whose conditions have progressed to AIDS.
Policy recommendations
Despite progress, gaps remain. Legal provisions are not always consistent across specialised laws, and certain concepts lack alignment with international standards. Emerging risks - particularly in the digital sphere - are insufficiently addressed.
Therefore, it is necessary to review and refine the provisions on the protection of vulnerable persons, ensuring consistency between criminal law and specialised legislation governing these groups, including the 2024 Law on Justice for Minors, the 2016 Law on Children, the 2010 Law on Persons with Disabilities, the 2009 Law on the Elderly, and the 2006 Law on Gender Equality.
It is also necessary to ensure that criminal law, as well as specialised legislation protecting vulnerable persons, is aligned with international standards and the laws of selected developed countries.
Another recommendation is to identify emerging risks and make better use of advances in science, technology and digital transformation in criminal law concerning vulnerable persons. In the digital era, vulnerable persons are more likely to become victims of offences such as fraud, property appropriation and human trafficking.
Looking ahead, attention should also be paid to electronic monitoring as an alternative to imprisonment, and to the use of artificial intelligence in predicting the risk of reoffending or in supporting sentencing decisions. At the same time, consideration should be given to criminalising technology-facilitated acts targeting vulnerable groups, such as using impersonation or false identities to sexually abuse children, grooming or enticing children for the purpose of committing sexual offences, and committing online fraud against vulnerable persons.-
[1] The full text of the Vietnamese version of this article is published on the Journal of Legal Studies, Hanoi Law University, issue No. 1/2026.
[2] Le Thi Diem Hang (2023), Bao ve nguoi de bi ton thuong bang phap luat hinh su Viet Nam (Protecting vulnerable persons through Vietnam’s criminal law), Law Doctoral Thesis, Hanoi Law University, p. 40.
[3] Le Thi Diem Hang, ibid, p.2.
[4] Dang Cong Thanh, Nguyen Quang Binh (2024), Tu tuon Ho Chi Minh ve Nha nuoc cua Nhan dan, do Nhan dan va vi Nhan dan o Viet Nam (Ho Chi Minh Thought on a State of the People, by the People and for the People in Vietnam), https://tcnn.vn/news/detail/63115/Tu-tuong-Ho-Chi-Minh-ve-Nha-nuoc-cua-Nhan-dan-do-Nhan-dan-va-vi-Nhan-dan-o-Viet-Nam.htm, accessed on April 22, 2025.
[5] Tran Quang Tiep (2003), Lich su Luat Hinh su Viet Nam (History of Vietnam’s Criminal Law), National Political Publishing House, p. 21.
[6] Vietnam Lawyers Association (2017), Luat hinh trieu Le - Nhung gia tri nhan van (The Penal Code of the Le Dynasty - Humanistic Values), Hong Duc Publishing House, p. 61.
[7] Luong Van Tuan (2012), “Ke thua cac quy dinh tien bo, nhan van doi voi nguoi bi thiet thoi trong Quoc trieu hanh luat” (“Taking over the progressive and humanitarian provisions for the underprivileged persons under the Penal Code of the Le Dynasty”), Journal of Legislative Studies, issue No. 3(211), p.22.
[8] Luong Van Tuan (2012), ibid, p. 22.
[9] Tran Quang Tiep (2003), ibid, p. 67.
[10] Tran Quang Tiep (2003), ibid, p. 72.
[11] Supreme People’s Court (1975), Tap he thong hoa luat le ve hinh su (The codification of the criminal law), Hanoi, Preamble.
[12] The 2015 Penal Code protects vulnerable persons as victims of crime by prescribing acts infringing upon such persons as constituent elements of certain offences, in a manner consistent with the earlier Penal Codes. These include Article 165 on infringing upon gender equality, Article 316 on illegal abortion, and Chapter VII on offences infringing upon the marriage and family regime, in which the protected subjects are mainly women and children. In addition, the 2015 Penal Code criminalised, for the first time, the act of organising surrogacy for commercial purposes under Article 187, in order to protect women’s right to motherhood and to punish acts that exploit women’s maternal role for profit. Article 39.1.e of the 1985 Penal Code and Article 48.1 of the 199 Penal Code.
