IMPROVING THE LAW ON CASES EXCLUDING CRIMINAL RESPONSIBILITY IN VIETNAMESE PENAL CODE

ABSTRACT

The article analyzes the concept, legal nature, and legislative techniques of the provisions in Chapter IV of the current Penal Code of Vietnam on cases of exclusion of criminal liability. From there, it points out the limitations and makes recommendations for improvement.

АННОТАЦИЯ

В статье анализируется понятие, правовая природа и законодательные приемы положений главы IV действующего Уголовного кодекса Вьетнама о случаях исключения уголовной ответственности. Отсюда указываются ограничения и даются рекомендации по улучшению.

Keywords: exclusion of criminal nature of acts, exclusion of criminal liability, criminal liability.

Ключевые слова: исключение уголовной природы деяний, исключение уголовной ответственности, уголовная ответственность.

Criminal liability is the most severe form of legal liability and is an adverse legal consequence of committing a crime and is expressed by the application of one or more criminal coercive measures prescribed by the Penal Code against a person or commercial legal entity that commits a crime [4, p.30].

Clause 1, Article 2 of the 2015 Vietnamese Penal Code (amended and supplemented in 2017) indicates : “Only those who commit a crime prescribed by the Penal Code shall bear criminal responsibility”. Thus, the basis of criminal responsibility under Vietnamese criminal law is the performance of an act that satisfies the specific elements of a crime prescribed in the Penal Code. However, in reality, there are acts that, although outwardly appearing to be a crime prescribed in the Penal Code, contain details that exclude the criminal nature of the act, and therefore exclude criminal responsibility. These cases are recorded in the Penal Code under the name “Cases excluding criminal responsibility”. This is a very important institution that contributes to protecting human rights and basic rights of citizens.

In Vietnamese criminal law, compared to the Penal Code of 1999 (amended and supplemented in 2009), the provisions regarding “cases excluding criminal responsibility” in the current Penal Code have undergone significant changes. This provision has been recognized in an independent chapter (Chapter IV) with 07 specific cases. Among these, 4 cases were transferred from the Criminal Chapter of the Penal Code of 1999 (amended and supplemented in 2009) and 03 new cases were added as stipulated in Articles 24, 25, and 26 of the Penal Code. Thus, in Chapter IV of the Penal Code concerning “Cases of excluding criminal responsibility” there are seven provisions (from Article 20 to Article 26), including: 1) Unexpected events (Article 20); 2) Lack of criminal capacity (Article 21); 3) Justifiable force(Article 22); 4) Urgent circumstances(Article 23); Infliction of bodily harm while capturing criminals(Article 24); 5) Risks from researches, experiments, application of technological advances (Article 25); 6) Following orders of commanders or superiors(Article 26). The inclusion of these provisions in a standalone chapter underscores their significance. Similar provisions are also found in the Penal Codes of various countries around the world, such as the Penal Code of the Russian Federation (Chapter 8: Circumstances Excluding the Criminal Nature of Conduct) or Section 1, Chapter 2 of the Penal Code of the People's Republic of China.

It can be affirmed that the changes and additions in the Penal Code regarding cases of excluding criminal responsibility is a significant new development, reflecting a qualitative advancement in criminal law thinking and legislation techniques in Vietnam, and contributing to enhancing the transparency of the Penal Code. This also clearly shows the criminal policy of the Party and the State in encouraging and motivating the people not only to actively protect themselves but also to participate in protecting the legitimate rights and interests of others, the State, and organizations; to help prevent crime; and to motivate everyone to creatively test scientific advancements for the common good.

1. The unreasonable points in the regulations regarding cases of excluding criminal responsibility in Vietnam

In terms of form, the establishment of cases of excluding criminal responsibility prescribed in Chapter IV of the Penal Code is a qualitative step forward in the thinking and technique of criminal legislation in Vietnam. However, when considering the concept, legal nature as well as the content of the provisions on each specific case, the author believes that there are still unreasonable and inconsistent points. Specifically as follows:

First, the regulation of cases of causing damage due to "unexpected events" and causing damage in "lack of criminal capacity" in the same Chapter IV with other cases of exclusion is unreasonable, because:

Firstly, in the case of an “unexpected event”, the subject is not at fault for the act of causing damage that has occurred. In other words, the act of causing damage in the case of an unexpected event does not have enough elements to constitute a crime (does not satisfy the subjective element), so there is no criminal liability. The person causing damage in this case is not criminally responsible but is not exempted from criminal liability. Similarly, in the state of no criminal capacity, the person who committed the act of causing damage but this act does not constitute a crime because it does not satisfy the signs of the subject of the crime, so the person who committed this act is not criminally responsible but is not exempted from criminal liability.

Secondly, the remaining cases have the same legal nature, which is that although they have caused certain damage, criminal liability is excluded because these are legal acts, beneficial to society (Justifiable force; Infliction of bodily harm while capturing criminals) or necessary acts and accepted by society (Urgent circumstances;Risks from researches, experiments, application of technological advances; Following orders of commanders or superiors). Therefore, in terms of legal nature, the provisions on cases of exclusion of criminal liability in Chapter IV currently include 02 separate groups: (1) cases where there are not enough elements to constitute a crime, so the issue of criminal liability is not raised; and (2) cases where criminal liability is excluded because there are grounds that make the act of causing damage legal, no longer illegal, excluding the criminal nature of the act of causing damage. Therefore, the current regulation leads to putting different legal facts in the same chapter - which is unreasonable.

Therefore, from a legal standpoint, the current provisions regarding cases exempting criminal liability in Chapter IV consist of two distinct groups: (1) cases where the necessary elements for a crime are not present, hence the issue of criminal liability is not raised; and (2) cases exempt from criminal liability due to grounds that render the harmful act legal, stripping it of its criminal nature, excluding the criminality of the act that caused the harm. Because of this, the current regulations lead to incorporating different legal characteristics into the same chapter - which is unreasonable.

Second, the title of Chapter IV “cases excluding criminal responsibility” is unreasonable and does not accurately reflect the legal nature of this regime. If the author only base on the sign “not subject to criminal liability” to classify it in the same chapter, then the current 07 articles cannot contain all the circumstances of the same nature recorded in the Penal Code. Accordingly, other cases of “not criminal responsibility” also include cases where the subject has committed an act causing damage but is not old enough to bear criminal responsibility, the act has a negligible danger to society (Clause 2, Article 8 of the Penal Code), the cases stipulated in Clause 2, Article 18, Clauses 2 and 3, Article 19 of the Penal Code, or even in the Crimes Section of the Penal Code, there is a case considered “not guilty” in Clause 7, Article 364: “A person who is forced to give a bribe but proactively reports before being discovered shall be considered not guilty and shall have all the property used for the bribe returned”,...

Therefore, it is necessary to correctly identify the legal nature of cases such as justifiable force; urgent circumstances;infliction of bodily harm while capturing criminals,... to ensure the requirement of uniformity stipulated in Chapter IV of the Penal Code. These cases all have the same legal nature, which is that although they have caused certain damage, they are all beneficial to society or necessary and socially accepted. According to the provisions of the Penal Code, these are legal acts and are exempt from criminal liability. In other words, these are cases of "excluding the criminal nature of the act".

Third, the wording for cases of exclusion from criminal liability is not consistent. In the same chapter, the wording for each case is different, specifically:

Article 22: “Justifiable force is not a crime”.

Article 23: “Acts causing damage in urgent circumstances are not crimes”.

Article 24: “Acts of a person to arrest … are not crimes”.

Article 25: “Acts causing damage while conducting research … are not crimes”.

Article 26: “A person who commits an act causing damage while carrying out … is not criminally liable”.

On the other hand, in the cases of Justifiable force; Urgent circumstances; Infliction of bodily harm while capturing criminals; or Risks from researches, experiments, application of technological advances, after describing the signs, the Penal Code also stipulates that these cases “are not crimes”. That is, these acts are considered legal acts, and the person performing the act in these cases is not criminally responsible.

However, in other cases such as: Unexpected events; Lack of criminal capacity; and Following orders of commanders or superiors, the Penal Code stipulates that these cases are "not subject to criminal responsibility". As analyzed above, when evaluating cases of the same legal nature, the regulations also need to have uniformity in the terms used, avoiding arbitrary situations.

2. Some recommendations for improving the law on cases excluding criminal responsibility in Vietnam

First, move the provisions on Unexpected Events (Article 20 of the Penal Code) and Lack of criminal capacity (Article 21 of the Penal Code) from Chapter IV to Chapter III “Crime”.

As analyzed above, Unexpected Events and Lack of criminal capacity are two cases with different legal natures from the remaining cases regulated in the same chapter. On the contrary, if the author only base on the general sign of “not having to bear criminal responsibility”, Chapter IV of the current Penal Code will need to supplement many other specific details that are currently regulated scatteredly in both the General Part and the Crimes Part of the Penal Code. Therefore, the appropriate solution would be to move the provisions on Unexpected Events and Lack of criminal capacity back to Chapter III “Crime”.

Accordingly, the author believes that the content of “Unexpected events” will be placed after the provision on “Crime of unintentional omission”. This will ensure logic, connection and clearly distinguish the case of unexpected events (acts causing damage without fault) from the case of crimes with unintentional errors due to negligence (Clause 2, Article 11 of the Penal Code).

On the other hand, the provision on “Lack of criminal capacity” will be placed after the regime of “Age of criminal responsibility” (Article 12 of the Penal Code). Explaining this, the author believes that the act of causing damage to society by a person in the state of no criminal responsibility does not have enough signs to constitute a crime and is not criminally responsible. Therefore, the rearrangement will ensure connection and clearly distinguish the state of no criminal responsibility from the case where the person committing a socially dangerous act is considered a criminal. This provision has been shown in the 1999 Vietnamese Penal Code, as well as in the Penal Code of the Russian Federation [2]; Penal Code of the People's Republic of China [1],...

Second, change the name of Chapter IV from “Cases of excluding criminal responsibility” to “Cases of excluding the criminal nature of acts”, and at the same time unify the concept of this regime.

As analyzed, this recommendation comes from the fact that the remaining cases (after transferring the provisions in Articles 20 and 21 of the Penal Code to the “Crime” Chapter) all have the same legal nature as cases of “excluding the criminal nature of acts”. Therefore, there needs to be a suitable name to “identify” them separately. The name “Cases of excluding the criminal nature of acts” is comprehensive and appropriate [3, 5], reflecting the common characteristics of the cases in this chapter.

Third, it is necessary to re-express the provisions in Chapter IV of the Penal Code in a unified manner. The author believes that the content of the provisions needs to be revised to be uniformly expressed in the direction of stipulating that "the act of causing damage... is not a crime". This will overcome the arbitrary and unconnected situation in the current regulations. At the same time, it helps to clearly reflect the general legal nature of cases excluding the criminal nature of the act. The above expression has been recorded in Chapter 8 of the Criminal Code of the Russian Federation [2]. Accordingly, all provisions from Article 37 to Article 42 have a unified framework structure.

In short, the changes in the current Penal Code on cases excluding criminal responsibilityare a remarkable new point, demonstrating a qualitative development, contributing to increasing the transparency of the Penal Code. However, in the trend of continuous movement and development of criminal law in general and the establishment of cases of exclusion of criminal liability in particular, the requirement for amendments and supplements is necessary. This will gradually contribute to perfecting the establishment of cases of exclusion of criminal liability, thereby maximizing effectiveness in practical application, contributing to ensuring human rights and civil rights.

References:

1. Criminal Code of the People's Republic of China (Dinh Bich Ha translated). Justice Publishing House, Hanoi, 2007.
2. Criminal Code of the Russian Federation (access link: http://www.consultant.ru/document/cons_doc_LAW_10699/) (last access: April 23, 2022).
3.  Le Cam (2005), "Basic issues in the science of Criminal Law (general part)" - Postgraduate monograph. National University Publishing House, Hanoi.
4. Trinh Tien Viet (2019), "Criminal liability and exclusion of criminal liability" - Monograph. National Political Publishing House, Hanoi.
5. Trinh Xuan Truong (2019), "Circumstances excluding the criminal nature of acts in the criminal law of the Russian Federation and the Socialist Republic of Vietnam" - Doctoral thesis. Moscow. (Чинь Суан Чыонг, “Обстоятельства, исключающие преступность деяния, в уголовном праве М Социалистической Республики Вьетнам”, дис.… канд. юрид. наук. М., 2019).