COMPLICITY IN VIETNAMESE CRIMINAL LAW

ABSTRACT

Complicity are a form of crime committed by two or more subjects who intentionally participate in the commission of a crime. The article addresses a number of issues about accomplices in Vietnamese criminal law, especially resolving the issue of accomplices between legal entities and legal entities; between individuals and legal entities.

АННОТАЦИЯ

Соучастие представляется видом преступления, совершаемым двумя и более субъектами, умышленно участвующими в совершении преступления. В статье рассматривается ряд вопросов о соучастниках во вьетнамском уголовном праве, особенности решения вопроса о соучастниках между юридическими и юридическими лицами; между физическими и юридическими лицами.

Keywords: Vietnam, Penal Code, Complicity, legal entities, subject, criminal liability.

Ключевые слова: Вьетнам, Уголовный кодекс, соучастие, коммерческие юридические лица, субъект, уголовная ответственность.

According to the provisions of Clause 1, Article 17 of the 2015 Penal Code: “Complicity are cases where two or more people intentionally commit a crime together”. Accomplice is a legal concept that speaks to the scale of the crime, committed in a case involving many people. However, it does not mean that many participants are considered accomplices, but that many people must have intentionally committed the same crime. Legal signs of complicit yare an issue with high agreement in scientific theory of criminal law as well as in trial practice, including: Objective signs and Subjective signs. Legal signs of accomplices that need to be considered and mentioned: (1) Signs of the subject; (2) Objective signs; (3) Subjective signs.

First, signs about the subject. Two or more people qualify to be the subject of a crime. To be considered a complicity, the first condition that belongs to the subject is that there must be the participation of two or more people and these people are qualified to be the subject of the crime. Qualifying as a subject of a crime means reaching the age of criminal responsibility according to the law (Article 12 of the Vietnam Penal Code 2015, amended and supplemented in 2017), and not being in a state of incapacity for penal liability (Article 21 of the Vietnam Penal Code 2015, amended and supplemented in 2017).Regarding the subject of the crime in accomplices, there are two issues to note:

1) regarding the age of criminal liability, the Vietnam Penal Code 2015, stipulates a humane approach in the criminal handling policy for people under 18 years of age who commit crimes. Accordingly, people from 14 years old to under 16 years old are only subject to criminal liability for very serious crimes and especially serious crimes specified in Articles 123, 134, 141, 142, 143, 144, 150, 151, 168, 169, 170, 171, 173, 178, 248, 249, 250, 251, 252, 265, 266, 286, 287, 289, 290, 299, 303 and 304 Vietnam Penal Code 2015, amended and supplemented in 2017; prepare to commit the crime specified in Article 123 (Murder), Article 168 (Robbery). Therefore, in the current period, when considering the criminal liability of people from 14 years old to under 16 years old in criminal cases in general and accomplice cases in particular, competent authorities conducting proceedings need to apply the beneficial provisions of the Vietnam Penal Code 2015.

2) On the issue of complicities to commercial legal entities: Vietnam Penal Code 2015, stipulates the criminal liability of commercial legal entities with 33 crimes listed in Article 76. Regarding the subject conditions of crimes, legal Commercial entities must be legally established according to the provisions of Vietnamese law, with specific conditions and criteria; and in principle, when agreeing to satisfy the customer and subjective signs in the accomplice, all actions develop and carry out tasks according to the assignment of the legal entity, actions of helping, facilitating conditions supporting legal entities to commit crimes are considered accomplices.

An issue that arises is whether or not there is accomplices between individuals and legal entities? There may be a case where the behavior of this individual or legal entity helping other individuals commit crimes satisfies a criminal component of an independent crime. Along with that, if the actions of this individual or legal entity constitute a crime of an independent crime and a crime more serious than the crime committed by another legal entity, then the more serious crime will be dealt with/without defining the scope of commercial law. In case the criminal profile of an independent crime is not satisfied, it is necessary to identify accomplices of the commercial law being handled. However, for practical application, this issue needs to be further studied and evaluated theoretically and must be related to the most specific guidance system in the judicial sector.

Second, objective signs in Vietnamese criminal law: Accomplices commit a crime together. Committing a crime together means that all accomplices must have participated in the commission of a crime (intentionally). Committing a crime together is also understood as joint action - each person's actions are intended to commit a crime or contribute to the commission of a crime. This person's behavior supports, complements and conditions the behavior of another person, influencing that behavior, making it more effective.

According to Vietnamese criminal law, acts of participating in the commission of a crime can be: 1) acts of directly committing a crime; 2) acts of organizing and committing crimes; 3) acts of incitement to commit crimes; 4) acts of assisting in the commission of a crime. If one of these four types of acts is not present, it is not considered to have committed a crime together, and therefore is not an accomplice. Theory and practice show that, in an accomplice case, there can be all four types of acts mentioned above, but there can also be only one type of act. An accomplice may participate in one type of act but may also participate in many different types of acts. The actions of each accomplice have a cause and effect relationship with the common consequences of the crime. The common consequences of the crime are the results of the common activities of all those participating in the crime. The practitioner's behavior is the direct cause of the common consequences, while the behavior of other people causes the consequences through the practitioner's behavior.

Third, subjective signs in Vietnamese criminal law: All accomplices are intentionally at fault when committing the crime and the mutual intention is expressed on both sides:

1) The ability of criminals to perceive the criminal nature of their own behavior and that of other accomplices. Each accomplice knows that his or her behavior is dangerous to society and knows that the other person is also committing dangerous behavior to society along with him or her. Knowing that the behavior is dangerous to society means that each accomplice is clearly aware that his or her own behavior and that of others is dangerous to society, and is aware of the socially dangerous consequences of that behavior, as well as the general consequences of the crime they participate in - awareness of the criminal nature of the act.

2) The desire of those who commit the crime regarding the actions of other accomplices and the general consequences of the crime. This sign requires that the accomplices have the same desire to have a common activity and the same desire or awareness to let the consequences arise. Undesirable cases of behavioral association that together cause dangerous consequences for society are not accomplices.  In practice, clearly distinguishing signs of reason from signs of will in the subjective signs of accomplices is only relative.

In addition, in crimes where signs of criminal intent are mandatory signs in constituting the crime, to be considered accomplices, all accomplices must have the same purpose that constitutes the crime. If a person does not have these signs, he is not an accomplice but only an individual case of crime. So, on what basis is the determination of subjective signs when considering criminal liability in complicity between a commercial legal entity and a commercial legal entity, between a commercial legal entity and an individual. A legal person is an abstract entity, an invisible legal subject, cannot perform acts on its own, and also does not have will and reason like a natural person, therefore when raising the issue of criminal liability of a commercial legal entity,  it only needs to be based on the act of causing damage.

When regulating the concept of crime, Clause 1, Article 8 of the Vietnam Penal Code 2015 indicates that “Crime is an act dangerous to society, specified in the Penal Code, committed by a person with criminal liability capacity or a commercial legal entity." intentionally or unintentionally,...”. This shows that the principle of guilt is a consistent principle in Vietnam's criminal law policy. When conducting proceedings, competent authorities are required to determine and prove the fault of the subject who committed the socially dangerous act, whether they are a natural person (individual) or a commercial legal entity. If there is no fault, there is no crime. In addition, authors believe that, when criminal policy has changed and been supplemented - with the provision of criminal liability of commercial legal entities in the Vietnam Penal Code 2015, the theory of criminal law science is also forced to change accordingly, because after all, an important task of criminal law science is to research and clarify theoretical issues of criminal law. Therefore, since the Vietnam Penal Code 2015was promulgated, the concept of errors in criminal law science has also changed - that is, it must be recognized that errors in criminal law can be the errors of individuals or the errors of commercial legal entities, trade, that is obvious and inevitable in the development of criminal law science.

Determining the subjective acts and signs of a commercial legal entity will be based on the subjective acts and signs of specific people representing the legal entity, performing acts on behalf of the legal entity as directed, direction and management of legal entities, bringing benefits to legal entities. Therefore, when considering subjective signs in accomplices between legal entities and legal entities, between individuals and legal entities, the agency conducting proceedings only needs to rely on subjective signs of specific, representative people, represent the legal entity, in the name of the legal entity, and resolve it according to normal principles as in the case of accomplices between an individual and an individual.

Legal signs of crimes in general and signs of complicity in particular have been clearly defined by the legislature in the Vietnam Penal Code 2015, both comprehensive and discriminatory between cases, case of crime and not crime, case of one crime with another, accomplices or not accomplices... However, awareness and application of the same criminal legal norms in solving a case, can Conflicting views cannot be avoided. In these cases, it is necessary to emphasize the value of supporting evidence. If it is not enough and cannot clarify the basis to accuse or convict the suspect, the principle of presumption of innocence must be thoroughly applied in their favor - a new principle stipulated in Article 13 of the Code Criminal proceedings in 2015.

Identifying accomplices in cases where a legal entity commits a crime is a new issue that needs to be researched and further theoretically clarified the provisions of the 2015 Penal Code. In the author's opinion, it is necessary to acknowledge the case. Complicity between a commercial legal entity and a commercial legal entity, between an individual and a commercial legal entity. Determining accomplices in the case of a legal entity committing a crime will be based on the subjective behavior and signs of specific people representing the legal entity; On behalf of the legal entity, perform actions under the direction and administration of the legal entity; bring benefits to legal entities. This regulation will help the application of criminal law truly ensure fairness and equality.

References:

1. Constitution of the Socialist Republic of Vietnam, 2013 //URL: https://en.wikisource.org/wiki/Constitution_of_Vietnam_(2013)  (date of application 23.03.2024)
2. Penal Code of the Socialist Republic of Vietnam, 2015 //URL: https://www.policinglaw.info/assets/downloads/2015_Criminal_Code_of_Vietnam_(English_translation).pdf (date of application 23.03.2024)
3. Supreme People's Court, Collection of systematization of criminal laws. Le Cam (editor), 2005 //URL: https://www.lawinfochina.com/display.aspx?id=36291&lib=law (date of application 23.03.2024)
4. Regarding legal signs of accomplices, see also: Hanoi Law University (2011) //URL: https://www.university-directory.eu/Vietnam/Hanoi-Law-University.html (date of application 23.03.2024)