HANOI NATIONAL UNIVERSITY
FACULTY OF LAW
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PHAN HONG THUY
AGGRAVATING CIRCUMSTANCES OF CRIMINAL RESPONSIBILITY IN VIETNAMESE CRIMINAL LAW– SOME THEORETICAL AND PRACTICAL ISSUES
MASTER'S THESIS
Hanoi - 2010
HANOI NATIONAL UNIVERSITY FACULTY OF LAW
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PHAN HONG THUY
AGGRAVATING CIRCUMSTANCES OF CRIMINAL RESPONSIBILITY IN VIETNAMESE CRIMINAL LAW– SOME ISSUES
THEORY AND PRACTICE
MASTER'S THESIS
SPECIALTY: CRIMINAL LAW
Code: 60 38 40
Scientific supervisor: Prof. Dr. LE VAN CAM
Hanoi - 2010
INDEX
INTRODUCTION 1
CHAPTER 1: GENERAL THEORETICAL ISSUES ON AGGRAVATING CIRCUMSTANCES OF CRIMINAL LIABILITY UNDER VIETNAM'S CRIMINAL CODE 10
1.1. Concept of aggravating circumstances of criminal liability 10
1.2. Nature and classification of aggravating circumstances of criminal liability 13
1.2.1. Legal nature of aggravating circumstances of criminal liability 13 1.2.2. Classification of aggravating circumstances of criminal liability 22
1.3. Meaning of aggravating circumstances of criminal liability 24
1.3.1. Legal significance 24
1.3.2. Political significance 26
1.4. Classification of aggravating circumstances of criminal liability 27
1.4.1. Classification based on the nature of aggravating circumstances of criminal liability 27
1.4.2. Classification based on the legal significance of aggravating circumstances of criminal liability 29
CHAPTER 2: AGGRAVATING CIRCUMSTANCES OF CRIMINAL RESPONSIBILITY UNDER VIETNAM'S CRIMINAL CODE 34
2.1. Aggravating circumstances of criminal liability under Vietnamese criminal law before the promulgation of the 1999 Penal Code 34
2.1.1. Aggravating circumstances of criminal liability before codification 34
2.1.2. Aggravating circumstances of criminal liability in the 1985 Penal Code 37
2.2. Aggravating circumstances of criminal liability according to the 1999 Penal Code 41
2.2.1. Aggravating circumstances for sentencing 41
2.2.2. Aggravating circumstances of conviction 47
2.2.3. Aggravating circumstances of general criminal liability 49
CHAPTER 3: PRACTICAL APPLICATION OF AGGRAVATING CIRCUMSTANCES OF CRIMINAL RESPONSIBILITY - LIMITATIONS AND SOLUTIONS 68
3.1. Practical application of aggravating circumstances of criminal liability. 68
3.2. Limitations when applying aggravating circumstances of criminal liability 97
3.2.1. Limitations when applying aggravating circumstances of criminal liability ..97 3.2.2. Causes of the above limitations 99
3.3. Solutions to overcome limitations when applying aggravating circumstances of criminal liability 101
3.3.1. Strengthening guidance on uniform application of law 101
3.3.2. Perfecting the provisions of the Penal Code on aggravating circumstances 103
3.3.3. Improving the level of awareness and application of the law of litigants 105
CONCLUSION 110
REFERENCES 113
LIST OF ABBREVIATIONS
- BLHS: Criminal Code
- TNHS: Criminal responsibility
- TTHS: Criminal proceedings
- TTTN: Aggravating circumstances
- Socialist: Socialism
INTRODUCTION
1. Urgency of the topic
In Vietnam, regulations on aggravating circumstances of criminal liability have existed for a long time in history since the country gained independence in 1945. The issue of aggravating and mitigating circumstances of criminal liability has also been mentioned and is scattered in individual, unsystematic legal documents such as: Decree No. 21/SL dated March 14, 1946 of the Government re-stipulating the crime and punishment; Decree No. 25/SL dated February 25, 1946 regulating punishment for acts of destroying public property; Decree No. 27/SL issued on February 28, 1946 to punish acts of kidnapping, extortion and assassination. Decree No. 71/SL issued on February 2, 1946 regulating the national army. The general amnesty decree of October 20, 1945, this document granted amnesty to the vast majority of sentences pronounced during the French colonial period; Decree No. 113/SL dated January 20, 1953, punishing all types of traitors and reactionaries and trying treasonous plots and acts (Article 1 of the Decree); Decree No. 223/SL dated November 17, 1946; Ordinance on the punishment of counter-revolutionary crimes dated October 30, 1967; Ordinance on the punishment of crimes against socialist property dated October 21, 1970; Ordinance on the punishment of crimes against private property of citizens dated October 21, 1970; Circular No. 03-BTP/TT dated April 1976 of the Ministry of Justice guiding the implementation of the Decree regulating crimes and penalties; Ordinance on the punishment of speculation, smuggling, counterfeiting, and illegal business dated July 10, 1982; etc.
It was not until the 1985 Penal Code that aggravating circumstances of criminal liability were officially recognized as independent provisions in criminal law. When the Vietnamese criminal law was codified for the second time with the adoption of the 1999 Penal Code, the provisions on aggravating circumstances of criminal liability were also amended, supplemented and continued to be perfected.
good. However, this second codification has not yet met the legislative needs for this institution, as well as its practical application. For example, both the 1985 and 1999 Penal Codes have not yet provided a legal definition of the concept of aggravating circumstances of criminal liability, the definition of the concept of sentencing circumstances, and framing circumstances. On the other hand, in the practical application of criminal law, it is shown that the regulations of this institution still have many shortcomings, some regulations are not strict and consistent in content, especially in the practical life of society and legal practice, there are many cases where aggravating circumstances of criminal liability can be applied but have not been recognized and regulated by Vietnamese lawmakers in the Penal Code.
Therefore, continuing to conduct more in-depth research to scientifically clarify the issues of aggravating circumstances of criminal liability and applying the provisions on aggravating circumstances of criminal liability in practice, and at the same time providing complete solutions to contribute to improving the effectiveness of the above provisions in the context that we are taking steps to codify the criminal law for the third time (amending and supplementing the 1999 Penal Code) not only has important theoretical-practical and legal significance , but is also an urgent issue. This is the reason for the author's decision to choose the topic " Aggravating circumstances of criminal liability in Vietnamese Criminal Law - Some theoretical and practical issues " as the topic of his master's thesis in law.
2. Research situation
As one of the important institutions, the institution of aggravating circumstances of criminal responsibility is closely and closely related to the institution of punishment and many other institutions in the Criminal Law, that is why it is recognized.
in criminal law in many countries around the world such as: Russian Federation, French Republic, China, Japan, Federal Republic of Germany, Sweden; etc..
In our country, the aggravating circumstances of criminal liability are directly regulated in Article 48 of the 1999 Penal Code.
The aggravating circumstances of criminal liability are mentioned and analyzed in a number of textbooks and reference books such as: 1) Vietnamese Criminal Law Textbook (General Part) . Hanoi National University Publishing House, 1997; 2) Vietnamese Criminal Law Textbook (General Part) , edited by Dr. Le Cam. Hanoi National University Publishing House, 2001 and 2003 (first reprint); 3) Vietnamese Criminal Law Textbook . Edited by Prof. Dr. Nguyen Ngoc Hoa. People's Police Publishing House, Hanoi, 2003; 4) Vietnamese Criminal Law Textbook (General Part) . Edited by Assoc. Prof. Dr. Vo Khanh Vinh. Hue University. Education Publishing House, Hanoi, 2000; 5). Aggravating and mitigating circumstances of criminal responsibility - Dinh Van Que - Reference book (2000), National Political Publishing House. 6) Scientific commentary on the 1999 Penal Code - General Part (Ho Chi Minh City Publishing House, 2000) by Master. Dinh Van Que...
Or mentioned in some other articles in specialized magazines such as: 1) "On mitigating and aggravating circumstances of criminal responsibility in the 1999 Penal Code and some recommendations" - Trinh Tien Viet - People's Court Magazine No. 13, July 2004; 2) "Some opinions on the regime of recidivism and dangerous recidivism according to the provisions of the 1999 Penal Code" - Pham Hong Hai - People's Court Magazine No. 4/2001; 3) "Inadequacies in some provisions of the Penal Code and recommendations for amendments and supplements" - Nguyen Hong - Legislative Research Magazine - No. 91, January 2007; 4) "Discussing aggravating circumstances in the individualization of criminal responsibility and punishment" - Trinh Tien Viet - Inspection Magazine No. 04/2003;
7) "It is necessary to have a unified perception when applying some circumstances to determine guilt and sentence."