A COMPARATIVE STUDY ON THE SOURCES OF CRIMINAL LAW IN CHINA AND VIETNAM

ABSTRACT

This article undertakes a comparative criminal law analysis of the sources of criminal law in Vietnam and China. While both jurisdictions emphasise the principle of legality and accord primacy to codified criminal statutes, they diverge significantly in defining the scope of criminal law sources. Vietnam largely confines criminal norms to the Penal Code, whereas China recognises specialised legislation as an integral component of criminal law. By examining the doctrinal and practical implications of these approaches, the article analyses how different models of criminal law sources affect legal certainty, coherence, and adaptability. The study contributes to comparative criminal law by clarifying alternative responses to the structural limits of codification.

АННОТАЦИЯ

В статье проводится сравнительно-правовой анализ источников уголовного права во Вьетнаме и Китае. Несмотря на то что обе правовые системы подчёркивают принцип законности и признают приоритет кодифицированных уголовно-правовых актов, между ними существуют существенные различия в определении круга источников уголовного права. Во Вьетнаме уголовно-правовые нормы в основном сосредоточены в Уголовном кодексе, тогда как в Китае специализированное законодательство признаётся неотъемлемой составной частью уголовного права. Посредством анализа доктринальных и практических последствий указанных подходов в статье исследуется влияние различных моделей источников уголовного права на правовую определённость, системность и адаптивность правового регулирования. Исследование вносит вклад в развитие сравнительного уголовного права, выявляя альтернативные способы реагирования на структурные ограничения кодификации.

Keywords: Sources of criminal law, principle of legality, comparative criminal law, Vietnam, China

Ключевые слова: источники уголовного права, принцип законности, сравнительное уголовное право, Вьетнам, Китай.

1. Conceptual Framework: Sources of Criminal Law

The notion of sources of criminal law

In legal theory, the concept of the “sources of law” generally refers to the recognised forms through which legal norms are created and acquire binding force [6]. In the context of criminal law, the notion of sources of criminal law assumes particular significance, as it directly determines the legal basis for criminal liability, the definition of offences, and the imposition of punishment. Unlike other branches of law, criminal law is subject to stricter requirements concerning legality and precision, given its coercive nature and its direct impact on individual rights and freedoms.

Sources of criminal law are commonly understood as formal sources, namely legal instruments that have the authority to establish criminal norms [9]. These typically include constitutions, penal codes, criminal statutes, and, in certain systems, judicial interpretations or precedents with normative force [6]. Material sources, such as social conditions, moral values, or criminal policy considerations, may influence the content of criminal law but do not themselves constitute binding legal norms [6]. This article focuses exclusively on formal sources of criminal law, as they define the legal boundaries within which criminal responsibility may be imposed.

The principle of legality and its implications

The principle of legality, expressed in the maxim nullum crimen, nulla poena sine lege, constitutes a cornerstone of modern criminal law [8]. It requires that criminal offences and penalties be clearly defined by law prior to the commission of the act and prohibits retroactive criminalisation. This principle serves multiple functions: it protects individuals against arbitrary prosecution, ensures predictability in the application of criminal law, and reinforces the rule of law [7].

In systems that strongly emphasise codification, the principle of legality is often interpreted as requiring that all criminal offences and penalties be contained within a single penal code. However, such an interpretation is not universally accepted. In many jurisdictions, legality is satisfied so long as criminal norms are established by law enacted through proper legislative procedures, regardless of whether they are located within a single code or dispersed across multiple statutes [12]. Consequently, the relationship between the principle of legality and the scope of criminal law sources depends largely on how a legal system defines the notion of “law” for criminal purposes.

Closed-source and open-source models of criminal law

From a comparative perspective, criminal law systems may be broadly categorised according to whether they adopt a closed-source or open-source model [8]. A closed-source model confines the creation of criminal offences and penalties to a central penal code, treating other legal instruments as merely interpretative or supplementary. This model prioritises legal certainty, coherence, and systematic codification but may struggle to respond swiftly to emerging forms of criminality.

By contrast, an open-source model permits criminal norms to be established through a wider range of legislative instruments, including specialised criminal statutes and supplementary criminal provisions embedded in sectoral laws. While this model enhances flexibility and responsiveness, it may also generate risks of normative fragmentation, overlap, and inconsistency if not carefully coordinated.

Vietnam and China exemplify these two contrasting approaches. Vietnam largely adheres to a closed-source model, formally recognising the Penal Code as the sole source of criminal law. China, however, has progressively developed an open-source model, allowing criminal norms to be derived from multiple legislative sources [6]. Understanding these models provides a necessary conceptual framework for analysing the respective systems and assessing their practical implications.

2. Sources of Criminal Law in Vietnam

Legal basis for determining the sources of criminal law

In Vietnam, the determination of the sources of criminal law is primarily grounded in statutory provisions of the Penal Code. From a doctrinal perspective, the legal basis for identifying the sources of criminal law can be traced to Article 2 of the Penal Code 2015. Article 2 provides that only individuals who commit acts defined as crimes under the Penal Code shall bear criminal responsibility, and only commercial legal entities committing offences prescribed by the Code may be held criminally liable [1]. Similarly, Article 8 of the Penal Code defines crimes as socially dangerous acts stipulated in the Penal Code [1]. Taken together, these provisions establish a formal framework in which the Penal Code is treated as the exclusive source of criminal law. Under this framework, criminal responsibility, criminal offences, and penalties are considered to arise solely from the Penal Code, and no other legal instruments are formally recognised as sources capable of creating criminal norms. This approach reflects a strict interpretation of the principle of legality, whereby criminal liability must be based on codified statutory provisions contained within a single legislative instrument.

From a theoretical standpoint, this model emphasises legal certainty and systematic coherence. By confining criminal norms to the Penal Code, the Vietnamese criminal law system seeks to ensure that individuals can clearly identify prohibited conduct and corresponding sanctions. However, as will be examined below, the rigid limitation of criminal law sources to the Penal Code has generated significant practical difficulties in criminal law enforcement and has exposed structural tensions within the current legal framework.

Practical limitations of a closed-source model

Although the Penal Code is formally recognised as the sole source of criminal law, the practical application of criminal law in Vietnam reveals a more complex reality. In many cases, the statutory provisions of the Penal Code describe criminal offences in relatively general terms, particularly with regard to the objective elements of offences. This level of abstraction, while consistent with legislative technique, often proves insufficient to serve as a concrete basis for determining criminal liability in practice.

A notable example can be found in the offence of molestation of a person under the age of sixteen, as prescribed in Article 146 of the Penal Code. The basic offence is defined merely by reference to “imolests a person under 16 for purposes other than sexual intercourse or other sexual activities”, without further clarification as to the specific conduct that constitutes such acts [1]. In the absence of additional legal guidance, this provision alone would be insufficient to establish criminal liability in a consistent and predictable manner. To address this issue, the Council of Judges of the Supreme People’s Court issued Resolution No. 06/2019/NQ-HĐTP, which provides detailed descriptions of conduct considered to constitute indecent acts for the purposes of criminal prosecution [5]. This resolution has played a crucial role in enabling law enforcement authorities and courts to apply Article 146 effectively and consistently.

The reliance on judicial resolutions and guiding documents demonstrates that, despite the formal closed-source model, Vietnamese criminal law operates in practice through a combination of statutory provisions and supplementary interpretative instruments. These instruments function as indispensable tools for clarifying criminal norms and ensuring effective law enforcement. However, their widespread use also exposes a structural inconsistency: while such documents are essential in practice, their formal status as sources of criminal law remains unrecognised.

Normative tension between the Penal Code and other legal instruments

The limitations of the current framework are further illustrated by normative tensions between the Penal Code and other legislative instruments governing criminal responsibility. A particularly significant example arises from the relationship between the Penal Code and the 2024 Law on Juvenile Justice.

Under Article 3 of the 2024 Law on Juvenile Justice, juvenile offenders are defined as persons aged between fourteen and under eighteen who commit crimes as prescribed by the Penal Code [3]. At the same time, Article 2 of the Penal Code stipulates that only individuals who commit crimes defined by the Penal Code shall bear criminal responsibility [1]. At first glance, these provisions appear consistent. However, the substantive regulation of criminal responsibility for juvenile offenders has undergone a fundamental shift. Following the amendments to the Penal Code, the chapter governing criminal responsibility and punishment for juvenile offenders was removed, and the entire legal regime concerning the handling of juvenile offenders was transferred to the 2024 Law on Juvenile Justice. This specialised legislation now regulates diversionary measures, penalties, procedural safeguards, enforcement of sentences, and social reintegration for juvenile offenders [3]. As a result, both the content and form of criminal responsibility for this group are no longer contained within the Penal Code itself.

If the sources of criminal law are strictly limited to the Penal Code, as Article 2 suggests, this shift creates a doctrinal contradiction. The legal basis for imposing criminal responsibility on juvenile offenders would be incomplete if the relevant norms are located outside the Penal Code. In practice, criminal responsibility for juvenile offenders cannot be determined without direct reference to the Law on Juvenile Justice 2024, a specialised statute that falls outside the formal scope of the Penal Code.

This situation highlights a fundamental inconsistency within the Vietnamese criminal law system. On the one hand, the Penal Code formally asserts exclusivity over the sources of criminal law. On the other hand, the legislature has enacted specialised laws that substantively regulate criminal responsibility for specific categories of offenders. The coexistence of these approaches undermines the coherence of the closed-source model and raises concerns regarding the formal legality of criminal law application.

Implications for legality and legal certainty

The current approach to the sources of criminal law in Vietnam gives rise to several important implications for the principle of legality and legal certainty. While the intention behind a closed-source model is to safeguard legality by confining criminal norms to a single code, the practical necessity of relying on supplementary legal instruments introduces a degree of uncertainty regarding the formal basis of criminal responsibility.

When judicial resolutions or specialised statutes are applied as de facto sources of criminal law without formal recognition, their use may be perceived as discretionary or inconsistent from a doctrinal perspective [9]. This creates the risk that the application of criminal law may appear arbitrary, particularly where criminal liability is determined on the basis of instruments that are not explicitly recognised as criminal law sources. Such a situation runs counter to the formal requirements of legality, which demand clarity not only in the substance of criminal norms but also in their legal form.

Moreover, the continued reliance on the Penal Code as the sole formal source of criminal law places significant pressure on the Code itself [11]. Attempts to address practical enforcement challenges solely through amendments to the Penal Code would likely result in excessive legislative detail and reduce the systematic coherence of the Code. This approach is neither efficient nor sustainable in light of the rapid emergence of new and complex forms of criminality.

Accordingly, the Vietnamese model of criminal law sources is characterised by a structural imbalance. While formally closed, it operates in practice through a combination of statutory provisions, judicial guidance, and specialised legislation. The absence of a clear legal framework recognising this reality undermines both doctrinal consistency and practical effectiveness.

Interim assessment

In summary, Vietnam’s criminal law system formally adheres to a closed-source model, in which the Penal Code is treated as the exclusive source of criminal law. This model reflects a strict interpretation of the principle of legality and prioritises legal certainty and codification. However, practical realities reveal significant limitations. The abstract nature of many statutory provisions necessitates reliance on judicial resolutions and guiding documents, while the emergence of specialised legislation—most notably in the field of juvenile justice—has effectively expanded the sources of criminal law beyond the Penal Code.

These developments expose a fundamental tension between formal doctrine and practical necessity. Without formal recognition of additional criminal law sources, the current framework risks inconsistency and doctrinal ambiguity. This tension provides a crucial point of comparison with the Chinese criminal law system, which adopts a more open-source model and explicitly accommodates supplementary criminal legislation. The following section therefore examines the sources of criminal law in China, with a view to facilitating a comparative assessment of these two contrasting approaches.

3. Sources of Criminal Law in China

Legal foundation of criminal law sources

Unlike the Vietnamese approach, the Chinese criminal law system does not confine the sources of criminal law exclusively to the Criminal Law. Article 3 of the Criminal Law of the People’s Republic of China stipulates that only acts explicitly defined by law as crimes may give rise to conviction and punishment, while acts not defined as crimes by law shall not be subject to criminal sanctions [2]. Significantly, the provision refers broadly to “law” rather than limiting criminalisation to the Criminal Law itself.

This legislative formulation establishes a more expansive understanding of the sources of criminal law. In the Chinese context, criminal norms may be derived not only from the Criminal Law but also from other legislative instruments that define criminal conduct or prescribe criminal liability. These include specialised criminal statutes and supplementary criminal provisions embedded in sectoral legislation. Accordingly, the sources of Chinese criminal law encompass a broader range of legal instruments, provided that they are enacted through proper legislative procedures.

From a theoretical perspective, this approach reflects a flexible interpretation of the principle of legality. Criminal liability is considered lawful so long as it is grounded in statutory provisions adopted by the legislature, regardless of whether such provisions are consolidated within a single criminal code or dispersed across multiple legal texts. This model allows the criminal law system to accommodate social and economic developments more responsively, particularly in a rapidly transforming society.

Development of supplementary criminal legislation

The evolution of China’s criminal law sources is closely linked to the development of supplementary criminal legislation. Historically, alongside the Criminal Law, China enacted several separate criminal statutes addressing specific categories of offences. Following the comprehensive revision of the Criminal Law in 1997, many of these separate statutes were incorporated into the Criminal Law through subsequent amendments, thereby enhancing the systematic coherence of the criminal law framework. Nevertheless, even after these reforms, the Chinese criminal law system has continued to recognise the existence of supplementary criminal law [6]. Supplementary criminal legislation typically refers to legal provisions outside the Criminal Law that define criminal offences or establish criminal liability within specific regulatory fields. These provisions are often found in laws governing administrative management, economic regulation, commercial activities, public security, and other specialised domains [6].

The continued recognition of supplementary criminal law reflects an institutional choice to maintain flexibility in criminal regulation. Given the scale and speed of economic development in China, the Criminal Law alone may not be capable of addressing all emerging forms of socially dangerous conduct in a timely manner. Supplementary criminal legislation allows the legislature to respond more rapidly by criminalising harmful conduct within specialised legal frameworks, without the need for comprehensive revisions to the Criminal Law.

Sectoral legislation as a source of criminal norms

A distinctive feature of the Chinese criminal law system is the role of sectoral legislation as a source of criminal norms. In many instances, laws regulating specific sectors not only establish administrative or civil obligations but also contain provisions that directly or indirectly give rise to criminal liability. These provisions may define criminal conduct, expand the scope of criminal responsibility, or specify the application of criminal sanctions in particular contexts. An illustrative example can be found in the 1995 Law of the People's Republic of China on Physical Culture and Sports. Article 51 of this law provides that acts such as bribery, fraud, and the organisation of gambling in sports competitions may constitute criminal offences and be subject to criminal prosecution in accordance with the law [4]. When read in conjunction with Article 385 of the Criminal Law, which defines the offence of bribery by state functionaries, this provision effectively expands the scope of criminal liability [2].

Under the Criminal Law, the offence of bribery is traditionally limited to state functionaries who abuse their official positions to unlawfully demand or accept property from others in exchange for benefits. However, by linking criminal liability to misconduct in sports competitions, the Sports Law extends the application of bribery offences to individuals who are not state functionaries, such as athletes, coaches, and referees. Through this interaction between the Criminal Law and sectoral legislation, the range of potential offenders is broadened, and criminal liability is adapted to the specific characteristics of the sports sector. This example demonstrates how supplementary criminal legislation operates in practice. Rather than creating entirely new offences in isolation, sectoral laws interact with the Criminal Law to modify or extend the application of existing offences. This technique enables the criminal law system to address sector-specific risks while maintaining a connection to the general framework of criminal law.

Advantages of an open-source model

The Chinese approach to criminal law sources offers several notable advantages. First, it enhances the flexibility and adaptability of the criminal law system. By permitting criminal norms to be established through specialised legislation, the system can respond more swiftly to new and complex forms of criminality, such as economic crimes, environmental offences, high-technology crimes, and transnational criminal activities. This flexibility is particularly important in a rapidly developing economy, where social relations and modes of conduct evolve at a pace that may outstrip comprehensive legislative codification.

Secondly, the use of sectoral legislation allows for greater specialisation in criminal regulation. Specialised laws are often better suited to defining the technical and factual elements of offences within particular fields. This contributes to greater precision in the description of criminal conduct and facilitates more effective enforcement. In contrast, relying solely on a general criminal code may result in overly abstract provisions that fail to capture the specific characteristics of complex offences.

Finally, the open-source model reduces legislative overload within the Criminal Law itself. Instead of repeatedly amending the Criminal Law to address sector-specific misconduct, the legislature can incorporate criminal provisions into specialised statutes. This approach helps to preserve the structural integrity of the Criminal Law while ensuring that criminal regulation remains responsive to practical needs.

Limitations and risks of supplementary criminal law

Despite its advantages, the Chinese model of open criminal law sources is not without limitations. One significant concern is the potential for normative overlap and inconsistency. When multiple legislative instruments contain criminal provisions, there is an increased risk that these provisions may conflict with one another or with the general principles of the Criminal Law. Such overlap can complicate the application of criminal law and undermine legal coherence.

Another limitation relates to legal stability and predictability. While flexibility is a key strength of the open-source model, frequent legislative changes in sectoral laws may lead to uncertainty regarding the scope and content of criminal liability. If criminal norms are dispersed across numerous statutes, individuals may find it more difficult to ascertain which conduct is criminally prohibited, particularly where criminal provisions are embedded within regulatory legislation not traditionally associated with criminal law.

Furthermore, the application of supplementary criminal law requires careful coordination to ensure consistency in enforcement. Sectoral criminal provisions may be designed with specific regulatory objectives in mind and may not fully align with the general principles governing criminal responsibility and punishment. Without effective harmonisation, this may result in uneven application of criminal law across different sectors.

Interim assessment

In sum, the Chinese criminal law system adopts an open-source model in which the sources of criminal law extend beyond the Criminal Law to include specialised criminal statutes and supplementary criminal provisions within sectoral legislation. This approach enhances flexibility, responsiveness, and sector-specific precision in criminal regulation. At the same time, it introduces challenges related to coherence, stability, and uniform application.

The Chinese experience demonstrates that an expanded conception of criminal law sources can function effectively within a statutory framework, provided that the principle of legality is respected and legislative coordination is maintained. This model stands in contrast to the Vietnamese closed-source approach and provides a valuable point of reference for comparative analysis. The following section therefore undertakes a systematic comparison of the sources of criminal law in Vietnam and China, with a view to identifying their respective strengths and limitations.

4. Comparative Analysis of the Sources of Criminal Law in Vietnam and China

Structural similarities

Despite adopting different approaches to the scope of criminal law sources, Vietnam and China share several fundamental similarities in the structure of their criminal law systems. First, in both jurisdictions, the Penal Code occupies a central position as the primary legislative instrument governing criminal offences and penalties. The Penal Code serves as the core reference point for defining criminal conduct and determining criminal responsibility.

Secondly, both systems adhere to the principle of legality, according to which criminal liability may only arise where conduct is clearly defined as criminal by law. This principle functions as a constitutional and doctrinal safeguard against arbitrary criminalisation and ensures that individuals are subject to punishment only on the basis of pre-existing legal norms. In this respect, neither Vietnam nor China recognises criminal liability based on customary law or purely judicial discretion.

Thirdly, both countries are engaged in ongoing processes of legal reform aimed at improving the effectiveness and coherence of criminal law in response to social change. As part of these reforms, both systems have developed supplementary mechanisms to support the application of the Penal Code. In Vietnam, this takes the form of judicial resolutions and guiding documents, while in China it is reflected in supplementary criminal legislation and sectoral laws. Although these mechanisms differ in form and legal status, they serve a similar functional purpose: enhancing the practical applicability of criminal law.

Divergence in the scope of criminal law sources

The most significant difference between the two systems lies in the scope of recognised criminal law sources. Vietnam operates primarily under a closed-source model, in which the Penal Code is formally regarded as the sole source of criminal law. Under this model, criminal offences and penalties are expected to be fully contained within the Penal Code, and other legal instruments are treated as interpretative or supportive rather than constitutive.

China, by contrast, adopts an open-source model. In addition to the Criminal Law, criminal norms may be derived from specialised criminal statutes and supplementary criminal provisions embedded in sectoral legislation. This broader conception of criminal law sources allows for the direct regulation of criminal conduct outside the Criminal Law itself, provided that such regulation is enacted through legislative procedures.

This divergence reflects different institutional strategies for managing the relationship between codification and adaptability. Vietnam prioritises formal coherence and codified certainty, while China emphasises legislative flexibility and responsiveness to emerging social risks.

Differences in the role of supplementary legal instruments

Another important distinction concerns the legal status and function of supplementary legal instruments. In Vietnam, resolutions of the Council of Judges of the Supreme People’s Court and inter-agency guiding documents play a crucial role in clarifying and operationalising criminal law provisions. However, these instruments are not formally recognised as sources of criminal law. Their authority derives primarily from their interpretative function rather than from any capacity to create new criminal norms.

In practice, this creates a paradox. While judicial guidance is indispensable for the effective application of the Penal Code, its formal exclusion from the recognised sources of criminal law generates doctrinal ambiguity. The reliance on such instruments may appear inconsistent with the strict wording of Article 2 of the Penal Code, which limits criminal responsibility to offences defined within the Code itself.

In China, supplementary legal instruments occupy a more explicit position within the criminal law framework. Sectoral laws may directly or indirectly define criminal conduct or extend the scope of existing offences. Although these laws operate in conjunction with the Criminal Law, they are formally acknowledged as part of the broader body of criminal law. This explicit recognition reduces doctrinal tension and provides a clearer legal basis for their application in criminal proceedings.

Flexibility versus legal certainty

The comparison between Vietnam and China also reveals a fundamental trade-off between flexibility and legal certainty. Vietnam’s closed-source model enhances formal legal certainty by concentrating criminal norms within a single codified instrument. This approach facilitates systematic interpretation and reduces the risk of fragmented criminal regulation. However, it also limits the system’s ability to respond swiftly to new forms of criminality and places considerable strain on the Penal Code as the sole vehicle for criminal regulation.

China’s open-source model, by contrast, offers greater flexibility. By allowing criminal norms to be incorporated into specialised legislation, the system can adapt more readily to sector-specific risks and emerging criminal phenomena. This flexibility supports more targeted and timely criminal regulation. At the same time, it increases the risk of overlap, inconsistency, and reduced transparency, particularly where criminal provisions are dispersed across numerous legislative instruments.

Thus, neither model is without shortcomings. The Vietnamese approach risks rigidity and practical inefficiency, while the Chinese approach faces challenges related to coherence and stability.

Implications for the application of criminal law

These structural differences have important implications for the application of criminal law in each jurisdiction. In Vietnam, the gap between formal doctrine and practical enforcement may undermine the perceived legitimacy of criminal law application. When criminal liability is effectively determined by reference to judicial guidance or specialised legislation not formally recognised as criminal law sources, questions arise regarding the formal legality of such application.

In China, the broader scope of criminal law sources facilitates enforcement but requires careful coordination to ensure consistency with general criminal law principles. The effective operation of an open-source model depends on the integration of supplementary criminal provisions into a coherent legal framework centred on the Criminal Law.

Overall, the comparative analysis demonstrates that the choice between closed and open models of criminal law sources entails inherent trade-offs. The Vietnamese and Chinese experiences illustrate different institutional responses to the common challenge of balancing legal certainty with adaptability in criminal law regulation.

5. Implications and Recommendations for Vietnam

The comparative analysis of the sources of criminal law in Vietnam and China highlights several structural implications for the Vietnamese criminal law system. While Vietnam’s closed-source model reflects a strong commitment to the principle of legality and codified certainty, its practical operation reveals notable limitations. These limitations call for carefully calibrated reforms aimed at improving coherence and effectiveness without undermining the foundational principles of criminal law.

Revising statutory provisions on the sources of criminal law

A primary implication of the current framework is the need to reconsider statutory provisions that rigidly confine the sources of criminal law to the Penal Code. In particular, Article 2 of the Penal Code, which limits criminal responsibility to offences defined within the Code, no longer fully reflects the realities of criminal law application. As demonstrated in previous sections, criminal responsibility in practice increasingly relies on specialised legislation and judicial guidance.

Accordingly, it is recommended that the relevant provisions of the Penal Code be revised to adopt a broader formulation. Replacing the phrase “the Penal Code” with “criminal law” would allow the concept of criminal law sources to encompass legal instruments that substantively regulate criminal responsibility in connection with the Penal Code. A corresponding adjustment should be made to Article 8, which defines crimes, by recognising criminal conduct as acts prescribed by criminal law rather than by the Penal Code alone. Such revisions would not alter the substantive scope of criminal liability but would enhance doctrinal coherence by aligning statutory language with legislative practice.

Expanding criminal law sources through specialised legislation

A second recommendation concerns the controlled expansion of criminal law sources through specialised legislation. At present, Vietnam has taken an initial step in this direction by enacting the Law on Juvenile Justice 2024, which comprehensively regulates criminal responsibility and procedural matters relating to juvenile offenders. This development demonstrates the feasibility and utility of specialised criminal legislation within the Vietnamese legal system.

Building on this experience, Vietnam may consider extending this approach to other areas characterised by complex and rapidly evolving forms of criminality, such as high-technology crime, environmental crime, financial crime, and transnational crime. Specialised legislation in these fields could provide more detailed and context-specific regulation than the Penal Code alone, thereby enhancing the effectiveness of criminal law enforcement..

However, such expansion should be carefully designed to ensure consistency with the general principles of criminal law. Specialised criminal statutes must be clearly linked to the Penal Code and should not operate independently of its fundamental doctrines concerning criminal responsibility and punishment. In this way, flexibility can be achieved without sacrificing systematic coherence.

Safeguarding the principle of legality

Any reform of the sources of criminal law must be undertaken with due regard to the principle of legality. Expanding the scope of criminal law sources does not imply weakening this principle. On the contrary, formally recognising specialised legislation as part of criminal law can strengthen legality by providing a clear and explicit legal basis for criminal responsibility.

By contrast, maintaining a formally closed-source model while relying in practice on supplementary instruments risks undermining legality by creating ambiguity regarding the formal basis of criminal liability. Clear statutory recognition of additional criminal law sources would reduce the risk of discretionary or inconsistent application and enhance transparency for both legal practitioners and the public.

Enhancing flexibility while maintaining coherence

Finally, the comparative findings suggest that Vietnam should seek a balanced approach that combines the strengths of both closed and open models. While the Penal Code should remain the central pillar of the criminal law system, a more flexible conception of criminal law sources would enable the system to respond more effectively to social change. At the same time, mechanisms should be established to prevent normative overlap and ensure coordination between the Penal Code and specialised legislation.

In sum, the reform of criminal law sources in Vietnam should aim not at abandoning codification, but at refining it. By broadening the formal recognition of criminal law sources in a controlled and principled manner, Vietnam can enhance both the effectiveness and the legitimacy of its criminal justice system.

Conclusion

This article has examined the sources of criminal law in Vietnam and China through a comparative legal lens, focusing on their legal foundations, practical operation, and inherent limitations. The analysis demonstrates that although both countries regard the Penal Code as the central pillar of their criminal law systems and adhere to the principle of legality, they have adopted markedly different approaches to defining the scope of criminal law sources.

Vietnam continues to operate under a predominantly closed-source model, in which the Penal Code is formally recognised as the sole source of criminal law. This model prioritises legal certainty and codified coherence, reflecting a strict interpretation of the principle of nullum crimen, nulla poena sine lege. However, the study reveals that this approach no longer fully corresponds to the realities of criminal law application. The abstract nature of many statutory provisions, the practical reliance on judicial resolutions, and the emergence of specialised legislation—most notably in the field of juvenile justice—have exposed structural tensions between formal doctrine and practical necessity.

By contrast, China has developed an open-source model of criminal law, in which criminal norms may be derived not only from the Criminal Law but also from specialised criminal statutes and supplementary criminal provisions embedded in sectoral legislation. This approach enhances flexibility and enables the criminal law system to respond more effectively to new and complex forms of criminality. At the same time, it presents challenges related to legal coherence, stability, and consistency, particularly where criminal provisions are dispersed across multiple legislative instruments.

The comparative analysis underscores that neither model is inherently superior. Each reflects a distinct institutional strategy for balancing legal certainty and adaptability within a codified criminal law system. The Chinese experience demonstrates the practical benefits of a broader conception of criminal law sources, while also highlighting the importance of legislative coordination to safeguard legality.

For Vietnam, the findings suggest the need for carefully calibrated reform. Revising statutory provisions that rigidly confine criminal law sources to the Penal Code, formally recognising the role of specialised legislation, and ensuring consistency with fundamental criminal law principles would enhance both doctrinal coherence and practical effectiveness. Such reforms would not undermine the principle of legality but would strengthen it by aligning formal legal structures with the realities of criminal law enforcement. Ultimately, refining the framework governing the sources of criminal law is essential for ensuring that the Vietnamese criminal justice system remains effective, coherent, and responsive in an evolving social context.

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