DEVELOPMENT HISTORY OF REGULATIONS ON EXEMPTION FROM PUNISHMENT IN VIETNAM'S CRIMINAL LAW

ABSTRACT:

Exemption from punishment means that the Court does not force the offender to face the State's most severe coercive measure, which is the penalty for the crime that person has committed. During the current period of building a rule-of-law state and judicial reform in Vietnam, studying the rules on exemption from punishment in current criminal law and providing directions for further improvement is crucial. However, to better understand the nature and meaning of this regulation and provide direction for perfecting the regulation, it is necessary to study its origin and history of formation and development through each period in history. The institution of exemption from punishment demonstrates the humane principle in the State's criminal policy towards criminals and the acts they commit, and thereby motivates and encourages criminals to make amends and show their ability to atone for their crimes, self-educate, quickly reform and create conditions for them to soon reintegrate into the community, becoming effective and productive citizens for the society. Thus, the important socio-political and legal meaning when applying the exemption from punishment is that the State does not have to isolate from society those who commit crimes but are less dangerous, and at the same time limit the application of penalties which, even though decided by the Court, are in fact unreasonable because its purposes are still unachievable.

Keywords: Exemption from punishment, history, development, criminal law, Vietnam.

First, the period from after the August Revolution of 1945 to before the Penal Code 1985 was issued

In Vietnam, it was not until the first codification (Penal Code 1985) that exemption from punishment was officially recorded as an independent institution in a systematic and uniform legal document, but it still existed and was regulated by a common name (separated into a clause) along with the regulation on exemption from criminal liability in an article of this Code (Clause 2, Article 48), but before that, trial practice and a number of documents The legal version has recognized and applied it in the sense of being one of the special leniency measures and choosing one measure or another such as: light trial, exoneration, exemption from criminal liability, reduced sentence... to be applied flexibly in each specific case. We can look into a number of documents from the period before the promulgation of the Penal Code 1985 that mentioned punishment exemption as follows:

- Circular No. 556-TTg dated December 24, 1958 of the Prime Minister on strengthening leadership in arrest, prosecution and trial when referring to the way to handle counter-revolutionary subjects, has clearly stated: “… our policy has always been strict punishment combined with leniency. Strictly punish the masterminds, villains, and those who stubbornly oppose us. Be lenient towards those who sincerely repent, towards those who go astray, those who are forced, those who are bribed. Reduction or exemption of sentence for those who make atonement for their crime. Reward those who have accomplished great deeds...". According to this document, when it comes to humane policies towards criminals who make atonement for their crimes, our State has lenient measures, especially reducing the sentence and exonerating the crime, but the exemption of punishment has not yet been prescribed.

- Summary and guidance No. 329-HS2 dated May 11, 1967 of the Supreme People's Court on how to deal with rape and other sexual crimes mentioned the reduction of penalties. For the crime of rape: "When there are many extenuating circumstances, or when there are special extenuating circumstances, the sentence may be below the above minimum levels, and the sentence may be suspended or specially exempted from punishment".

The reason why the actual criminal law recognizes and in judicial practice applies the penalty exemption regime comes from the humanitarian principle in Vietnamese criminal law, from the point of view that the prosecution Criminal liability, criminal sanctions or the application of penalties to criminals, although very important in protecting the rule of law, consolidating legal order and preserving social order and security, are not the only measure, it requires "the increase of expansion of other social impact measures to fight and prevent crime". On the other hand, exemption from punishment is applied during this period mainly to implement the motto in the treatment method, which is "severe punishment combined with leniency", "punishment combined with education and reform" alongside other measures.

From 1979-1980, in our country the situation of speculation, smuggling, counterfeiting and illegal trading became complicated, directly affecting the State's plans and the lives of the people as well as the people. cause market disruption. However, there is also a division in the way of handling - either to punish severely or to be lenient. To be lenient, the State still has the above mentioned measures, including penalty exemption and is stipulated in Article 10 of the Ordinance on Punishment of Speculation, Smuggling, Counterfeiting and Illegal Business dated July 10/1982.

Thus, in this period, in terms of humanity, exemption from punishment is a special measure of leniency, and choosing this measure or one of the other mitigation measures to apply in a specific case is in addition to The application of the conditions specified in each respective law must also be based on other conditions. For example: policies, guidelines of the Party and State at each time, historical circumstances, requirements for fighting crime in each place, each time and for each specific case, especially in cases of counter-revolution, sabotage of the State or the identity of criminals... Therefore, it can be affirmed that this is also a "flexibility" condition of the penalty exemption measure with other leniency measures of our State at that period.

Second, the period from the promulgation of the Vietnam Penal Code 1985 until the Penal Code 1999

In 1985, the first Penal Code of the Socialist Republic of Vietnam was issued, marking a new development step of our country's criminal law in general, and regulations on penalty exemption in particular. In this first Penal Code, exemption from punishment was officially stipulated in the General Part and Crimes Part of the Penal Code along with the institution of exemption from criminal liability (Article 48 and Clause 2, Article 247) demonstrating flexible application in each case between these two measures. Specifically:

- In the 1985 Penal Code (Clause 2, Article 48), cases of penalty exemption are stipulated in the General Part of this Code as follows: "Offenders may be exempted from punishment in cases where the crime involves many mitigating circumstances mentioned in Article 38 deserve special leniency, but are not to the extent of being exempt from criminal liability".

- In the case of exemption from punishment in the Crimes Section of the 1985 Penal Code, Clause 2, Article 247 provides general provisions on the choice of this measure or exemption from criminal liability as follows: "A person who does not report if he has an acted to dissuading a person from committing a crime or limiting the harmful effects of a crime may be exempted from criminal liability or punishment".

- The provision of penalty exemption measures (and criminal liability exemption) in these laws also stems from humanitarian principles and leniency policies, and these measures are set in cases it is deemed unnecessary to apply criminal liability and punishment to the offender while still ensuring the requirements of general and specific prevention, the requirements of education and rehabilitation of the offender. These two regulations represent different levels of leniency. If necessary, they can exempt criminal liability, while if the offender is still held criminally responsible, they can grant exemption from punishment.

In addition, to apply flexibly to a number of specific subjects who commit a specific crime, if they fully meet the grounds and certain conditions, they will still be considered for application of the punishment exemption regime. Specifically, on June 2, 1990, the Ministry of Home Affairs (now the Ministry of Public Security), the Supreme People's Procuracy, the Supreme People's Court, and the Ministry of Justice issued Inter-sectoral Circular No. 05/TTLN Provide guidance on the implementation of the State's leniency and humanitarian policy toward criminals who confess, including mentioning the application of punishment exemption as follows:

“A criminal who has been discovered and fled, is wanted but has confessed, depending on the severity of the crime, reporting attitude, etc., is also entitled to a leniency policy and may be exempted by the Court from penalties or reduced penalties according to the provisions of Clause 2, Article 48 or Clause 3, Article 38 of the Penal Code".

Third, the period from after the promulgation of the Penal Code 1999 until before the 2015 Penal Code

Later, through four amendments and supplements to the Penal Code, the regulations on penalty exemption generally remained the same as those in the 1985 Penal Code. By the second codification (Penal Code 1999) has affirmed the humanitarian policy of the Party and State of Vietnam more clearly through more specific regulations on penalty exemption. This law stipulates a separate article on exemption from imprisonment Penalties of a general nature apply to all crimes in Article 54, and are not prescribed in conjunction with the criminal liability exemption regime because the content, legal nature, grounds and conditions for application of these two regulations are different. In addition, in the Code there are two other cases of penalty exemption specified in Clause 4, Article 69 and Clause 3, Article 314. Accordingly, the content of penalty exemption cases is specifically regulated by the 1999 Penal Code. as follows:

- “Offenders may be exempted from punishment in cases where the crime has many extenuating circumstances specified in Clause 1, Article 46 of this Code, deserving of special leniency, but not to the extent of being exempt from criminal liability" (Article 54);

- "During trial, if it is deemed unnecessary to impose punishment on juvenile offenders, the Court shall apply one of the judicial measures specified in Article 70 of this Code" (9⁾ (Clause 4, Article 69). Accordingly, although lawmakers do not clearly note that juvenile offenders are exempt from punishment, this law indirectly shows that this is a case of exemption from punishment with conditions attached to juveniles, guilty. Such regulations help the Court flexibly apply the State's policies towards juvenile offenders, creating conditions for correcting mistakes and training them to become productiove citizens for society.

- "If a person who does not report has taken action to prevent the offender or limit the harmful effects of the crime, he or she may be exempt from criminal liability or penalty" (Clause 3, Article 314). Accordingly, when a person clearly knows that a crime has been committed, even though he does not report it to the competent authority for detection and handling, he promptly intervenes and proactively prevents it by taking necessary measures. If you have limited the harmful effects of crime, you can be considered for exemption from criminal liability or penalty due to your awareness of fighting and preventing crime. However, the law does not clearly stipulate in which cases such measures should be applied. Exemption from criminal liability, which cases are exempt from punishment depends on each case with specific circumstances.

In general, the cases to apply the penalty exemption regime in previous criminal legal documents were concretized by lawmakers into circumstances mitigating criminal liability specified in Clause 1, Article 46 of the 1999 criminal law. However, compared to before, the application of penalty exemption regulations is more strict, for example: For cases of penalty exemption specified in the General Part (Article 54), the offender is required to have many Circumstances mitigating criminal liability are specified in Clause 1, Article 46 of this Code (two or more circumstances) accompanied by other conditions. Of course, here, in order to apply the humanitarian regime of penalty exemption (possibly in the General Part or the Crimes Part), in addition to the conditions of mitigating circumstances of criminal liability prescribed in the law (mentioned above), when applied, the courts must also rely on the offender's identity and it is important to consider it unnecessary to apply the State's most severe criminal enforcement measure, which is the penalty. while still ensuring the requirements of fighting crime.

Fourth, the period from the promulgation of the Vietnam Penal Code 2015 until now

Inheriting the content of the provisions of the corresponding article of the 1999 Penal Code, Article 59 of the 2015 Penal Code, stipulating exemption from punishment, is as follows: "Offenders may be exempted from punishment if they belong to cases specified in Clauses 1 and 2, Article 54 of this Code that deserve special leniency but are not to the extent of being exempt from criminal liability.”

The above regulations show that a criminal can be exempted from punishment by the Court if he or she satisfies the following 3 conditions:

- The first condition is that the offender must fall into the case specified in Clause 1 and Clause 2, Article 54 of the 2015 Penal Code. Accordingly, Clause 1 and Clause 2, Article 54 of the 2015 Penal Code, stipulate:

" The Court may decide a sentence lighter than the lower limit of the current sentence bracket if it is in the next lighter bracket provided the offender has at least two mitigating factors specified in Clause 1 Article 51 hereof.

2. The Court may decide a sentence below the lower limit of the current sentence bracket and it is not required to belong to the next lighter bracket provided the offender is an abettor with a minor role in the offense and does not have prior criminal record.”

- Second condition, the offender deserves special leniency.

- The third condition is that the offender is not exempt from criminal liability.

When considering the conditions for exemption from punishment, it can be seen that the second and third conditions specified in Article 59 of the 2015 Penal Code are similar to Article 54 of the 1999 Penal Code. Only the first condition of Article 54 of the 1999 Penal Code and Article 59 of the 2015 Penal Code are different in content. Accordingly, the first condition of Article 54 of the 1999 Penal Code stipulates that the offender will only be exempted from punishment when he or she has at least two mitigating circumstances as prescribed in Clause 1, Article 46 of the 1999 Penal Code. Meanwhile, the first condition of Article 59 of the 2015 Penal Code stipulates that the offender must satisfy the conditions specified in Clauses 1 and 2 of Article 54 of the Penal Code 2015, i.e. The offender must have at least two circumstances that mitigate criminal liability as prescribed in Clause 1, Article 51 of the Penal Code 2015 to be considered by the Trial Council to set the penalty level below the lowest level of the frame. The applicable penalty must be within the adjacent penalty frame and must also satisfy the content specified in Clause 2 of Article 54 of the 2015 Penal Code, and at the same time be a first-time criminal accomplice case, having an insignificant role. Comparing with the provisions in the first condition of Article 54 of the 1999 Penal Code, it can be seen that lawmakers have set stricter regulations, according to which, it requires not only two or more mitigating circumstances of criminal liability, which must be unanimously decided by the jury at the lowest level of the applicable penalty frame, on the basis of two or more mitigating circumstances. Because in reality, there are many cases where, although there are up to three circumstances mitigating criminal liability as prescribed in Clause 1, Article 46 of the 1999 Penal Code, when considering the sentence, the Panel unanimously agrees not to apply the regulations on a lighter penalty than the provisions of the Code according to Article 47 of the 1999 Penal Code.

LIST OF DOCUMENTS

[1] 1985 Penal Code No. 17-LCT/HDNN7

[2] 1999 Penal Code No. 15/1999/QH10

[3] 2015 Penal Code No. 100/2015/QH13

[4] Trinh Tien Viet, Tran Thi Quynh, Overview of the history of formation and development of norms on exemption from punishment in Vietnamese criminal law, Journal of Jurisprudence No. 1/2006

[5] Collection of systematization of criminal law, published by the Supreme Court, 1975

[6] Associate Professor, PhD. Le Thi Son, Criminal liability and criminal immunity, Journal of jurisprudence No. 5/1997

[7] Associate Professor, Dr. Nguyen Ngoc Hoa, Criminal liability and punishment, People's Public Security Publishing House, 2001

[8] Trinh Tien Viet, Tran Thi Quynh, Exemption from punishment according to Vietnam's Criminal Law and some recommendations for improvement, VNU Science Magazine, 2011

[9] MSc. Lawyer Le Van Sua, Conditions for exemption from punishment as prescribed in Article 59 of the 2015 Penal Code.

By Dang Vu Duc - FDVN Law Firm

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