ENVIRONMENTAL CRIMES IN CRIMINAL LAW OF VIETNAM

ABSTRACT

In order to prevent environmental degradation and pollution and restore and develop the ecological environment, many countries in the world, including Vietnam, have applied many synchronous measures, including regulations on criminal liability for environmental crimes. This article analyzes and clarifies the regulations on environmental crimes in Vietnamese criminal law.

АННОТАЦИЯ

В целях предотвращения деградации и загрязнения окружающей среды, а также восстановления и развития экологической среды многие страны мира, включая Вьетнам, применили множество синхронных мер, включая положения об уголовной ответственности за экологические преступления. В данной статье анализируются и разъясняются положения об экологических преступлениях во вьетнамском уголовном праве.

Keywords: Vietnam, environment, environmental crimes, human activity, natural.

Ключевые слова: Вьетнам, окружающая среда, экологические преступления, деятельность человека, природный.

The environment is everything around us, has a great influence and in many cases has a decisive influence on human survival and economic development. However, the environmental situation is being polluted, even severely damaged and is becoming increasingly serious in many countries around the world as well as in Vietnam. The air is heavily polluted by dust and toxic gases emitted by human activities; forests are being destroyed widely due to slash-and-burn cultivation, logging for timber, firewood or indiscriminate grazing of livestock; Many rivers have become black or heavily polluted due to domestic, industrial and public service waste, the land is being heavily contaminated by solid and liquid waste, pesticides, growth hormones used beyond the permitted amount, etc. The consequences are leading to droughts, floods and storms occurring more and more frequently with increasing damage; diseases caused by environmental pollution such as cancer, respiratory and digestive diseases are also increasing...

In order to prevent environmental degradation and pollution, gradually restore and develop the ecological environment, many countries in the world have been applying many synchronous measures such as propaganda, education, economy, administration, etc. The 2013 Constitution affirms that everyone has the right to live in a clean environment and has the obligation to protect the environment. The State has policies to protect the environment; manage and use natural resources effectively and sustainably; conserve nature and biodiversity; proactively prevent and combat natural disasters, respond to climate change... “Organizations and individuals that pollute the environment, deplete natural resources and reduce biodiversity must be strictly punished and responsible for remedying and compensating for damages”.

Environmental crimes are understood as crimes that violate social relations related to the protection of a favorable and quality natural environment, the rational use of natural resources and the assurance of ecological security for the population.

In particular, the subject of this crime is an individual with criminal responsibility as prescribed in the Penal Code or a commercial legal entity (in some specific crimes) who intentionally commits acts that endanger society and violate the State's regulations on environmental protection. The concept of environmental crimes needs to be perceived and built based on the following two groups of premises:

First, there is the great danger of anthropogenic impact (human activity).That impact causes consequences for the environment and can destroy the conditions for human existence. Nowadays, in the context of a serious environmental crisis, many people are still not fully aware of harmful and dangerous acts (infringements) to the environment as a type of dangerous criminal act. When depleting natural resources, changing the physical characteristics of natural objects, destroying water sources, atmosphere, forests, and land in various ways, then humans can worsen their existence, and then possibly end that existence. Therefore, the provision of criminal liability for environmental crimes is a tool of social self-protection to ensure the survival of society.

Second, the conditions for criminal prosecution and the implementation of criminal liability must be prescribed by criminal law. Environmental crimes are only one type, a group of crimes prescribed by Vietnam Penal Code. Therefore, the concept describing that group of crimes must be formed and built on the basis of considering the specific characteristics of socially and environmentally (ecologically) harmful acts and the general characteristics of crimes as acts punishable by criminal law. Therefore, it is possible to propose the concept: Environmental crimes are socially dangerous acts prescribed in the Criminal Code, committed intentionally or unintentionally by persons with criminal responsibility or commercial legal entities, infringing on social relations related to the preservation and protection of a clean environment, the rational use of natural resources and the assurance of ecological security for the community, which must be criminally prosecuted according to regulations.

Legal signs of environmental crimes

(1) Objects of environmental crimes. The category object (or group object) of environmental crimes is the totality of real social relations formed in the protection of the surrounding environment, in the rational use of natural resources, in the preservation of favorable natural conditions for humans and other living animals and in ensuring human ecological security. The direct object of environmental crimes is a specific form of social relations in the protection of the surrounding environment, in the rational use of natural resources and in the protection of human ecological security. The objects of environmental crimes are specific natural resources such as: air, water, land, animals, forests, etc.

(2) The objective aspect of environmental crimes. The objective aspect of environmental crimes usually includes the performance of an action (or inaction) that violates regulations on environmental protection, the rational use of natural resources, and ecological security; the causing of consequences prescribed by law (damage to the environment or to human health); the causal relationship between that action (or inaction) and the consequences caused. Previously, most of the elements of environmental crimes were material elements, but now according to the 2015 Penal Code, most environmental crimes are formal elements.

(3) Subjects of environmental crimes. Subjects of environmental crimes are those who have criminal responsibility and have reached the age prescribed by law. For some specific crimes, the subjects of those crimes are special subjects, that is, those who, according to the provisions of law, are obliged to perform certain acts in organizing work, in inspecting and implementing measures to ensure environmental safety and security... In some crimes, the subjects can be people with positions and powers such as the crime of importing technology, machinery, equipment, waste or unsafe substances.

Currently, according to the 2015 Vietnam Penal Code (amended and supplemented in 2017), the subjects of environmental crimes include commercial legal entities. This is a remarkable new point, a breakthrough in Vietnam criminal policy, fundamentally changing the traditional perception of the issue of crime and punishment. This addition comes from the reality of the fight against crime in general, and environmental crimes in particular. In the past, many legal entities and enterprises have committed acts of causing particularly serious pollution, but because the Vietnamese Penal Code has not yet regulated this issue, handling the responsibilities of legal entities has encountered many difficulties and is ineffective.

(4) Subjective aspect of environmental crimes. The subjective aspect of environmental crimes is expressed in the form of intentional or unintentional fault. Intentional fault means that the offender is fully aware that his behavior is dangerous to society, foresees the consequences of that behavior and desires the consequences to occur or, although not desiring, still consciously lets the consequences occur. Unintentional fault is the case where the offender may not foresee or, although foreseeing that his behavior may cause harmful consequences to society, believes that such consequences will not occur or, if they occur, can be prevented.

Classification of environmental crimes

Environmental crimes can be divided into more specific groups based on the characteristics of the objective behavior and the object of the violation. Accordingly, environmental crimes in Vietnam can be divided into the following groups:

- Group 1: Crimes that directly or indirectly infringe upon social relations related to the preservation and protection of a clean environment. This group of crimes includes acts that directly impact the environment of land, water, and air, such as the crime of causing environmental pollution (Article 235 Penal Code of Vietnam); the crime of violating regulations on hazardous waste management (Article 236 Penal Code of Vietnam) ...

- Group 2: Crimes that infringe upon social relations related to ensuring ecological security for the community. Although not directly polluting the environment, they threaten the ecological security of humans and living things, causing ecological imbalance, such as the crime of violating regulations on the protection of endangered and rare animals (Article 244 Penal Code of Vietnam)...

- Group 3: Crimes that violate the relationships related to the rational use of natural resources, ensuring the economic security of the country. Although this group of crimes mainly violates the economic management order, it also has a significant impact on the environment. For example, the crime of violating regulations on research, exploration, and exploitation of resources (Article 227 Penal Code of Vietnam) or the crime of violating regulations on land use (Article 228 Penal Code of Vietnam)...

Penalties for environmental crimes. For environmental crimes, lawmakers prescribe three main types of penalties, which are fines, non-custodial reform, and fixed-term imprisonment.

- For this group of crimes, lawmakers expand the scope of application of fines as the main penalty. There are 9 out of 11 articles that stipulate fines as the main penalty in the 1999 Penal Code of Vietnam. By the 2015 Penal Code, all 12/12 crimes stipulate fines as the main penalty. The fine level prescribed in most articles in Chapter XVII of the 1999 Penal Code of Vietnam is from ten million VND to one hundred million VND. There is one article that stipulates a fine level from fifty million VND to two hundred million VND (Article 188, Clause 2 Penal Code of Vietnam).

The 2015 Penal Code of Vietnam has stipulated to expand the scope of application and increase the fine level to ensure deterrence and punishment for environmental crimes. For example: Adding a fine to the basic framework in Clause 1, Article 240 Penal Code of Vietnam on the crime of spreading dangerous infectious diseases to humans. Fines have been prescribed in the aggravating framework of a number of crimes such as: environmental pollution; Crime of violation of prevention, response and remediation of environmental incidents...

- The fine level is prescribed at a high level, in accordance with the nature and dangerousness of the crime, accordingly the fine level in the basic framework and the increased penalty framework is prescribed at a very high level, for individuals who violate the law, it is also increased with the lowest level being 50 million and the highest being 3 billion VND, the lowest prison term is 3 months and the highest is up to 15 years. (According to the provisions of Chapter XVII Environmental crimes of the 1999 Penal Code of Vietnam, amended in 2009, the lowest fine is 10 million VND and the highest is only 1 billion).

In addition, currently according to the 2015 Penal Code, the subject of environmental crimes is not only individuals but also commercial legal entities, so the penalty applied to environmental crimes, in addition to the three types mentioned above, also includes the penalty of temporary suspension of operations and permanent suspension of operations applied to commercial legal entities. The fight against environmental crimes has always been a concern of the Vietnamese State, of investigative agencies, the Procuracy, the Court and of the whole society. The fight against crime in general and environmental crimes in particular in recent years has achieved certain results. However, environmental crimes are becoming more and more complicated and tend to increase, causing great harm to society. Therefore, the need to fight against environmental crimes is increasingly urgent. Research and understanding of the internal laws of environmental crime will clarify the causes and conditions of environmental crimes.

References:

1. Penal Code of the Socialist Republic of Vietnam 2015 URL: https://vietanlaw.com/12-2017-qh14-364731/  (Date of request 22.10.24)
2. Criminal Procedure Code of the Socialist Republic of Vietnam 2015 URL: https://asean.org/wp-content/uploads/2021/10/02.-Criminal-Procedure-Code.pdf  (Date of request 22.10.24);
3. Decree No. 08/2022/ND-CP of the Government of the Socialist Republic of Vietnam dated January 10, 2022 detailed regulations on a number of articles of the law on environmental protection URL: https://english.luatvietnam.vn/decree-no-08-2022-nd-cp-detailing-a-number-of-articles-of-the-law-on-environmental-protection-215632-doc1.html (Date of request 22.10.24) .