Applying criminal law to juvenile offenders from the practice of Quang Ngai province

The root cause of the above situation is that law enforcement agencies have not fully understood the provisions of the Vietnamese Penal Code (CPC) on the legal basis for applying criminal law to juvenile offenders in general, especially the provisions related to criminal responsibility and the decision on punishment for juvenile offenders in particular. In addition, the provisions of the Penal Code on this issue still have certain limitations and problems, failing to meet the requirements of social practice. All of these have reduced the effectiveness of the fight against crimes committed by juveniles, as well as the effectiveness of applying the provisions of the Penal Code on the application of criminal law to this special subject.

Thus, it is very necessary to conduct a basic study of the provisions of the criminal law of our State on the application of criminal law to juvenile offenders from the practice of Quang Ngai province. It will help to clarify the theoretical basis from the practice of handling, find out the errors or shortcomings in the process of handling juvenile offenders to overcome. Thereby, it will contribute to the fight against and prevention of crimes committed by juveniles more effectively. Therefore, the topic "Application of criminal law to juvenile offenders from the practice of Quang Ngai province" has been chosen by the author for research.

2. Research status of the topic

2.1. Theoretical research situation

To have a theoretical basis for the implementation of the thesis topic, the following scientific works have been researched and referenced:

Maybe you are interested!

- Vo Khanh Vinh (2014), "Textbook of Vietnamese Criminal Law - General Part" , Social Sciences Publishing House, Hanoi [ 73];

- Vo Khanh Vinh (2008), "Vietnamese Criminal Law Textbook - Crimes" , People's Police Publishing House, Hanoi [ 69];

- Faculty of Law, Hanoi National University (1997), "Textbook of Vietnamese Criminal Law

- Crimes section” , Hanoi National University Publishing House, Hanoi [25];

- Hanoi Law University (2015), "Textbook of Vietnamese Criminal Law, Volume 1 , People's Police Publishing House, Hanoi [ 13];

- Hanoi Law University (2015), "Textbook of Vietnamese Criminal Law, Volume 2 , People's Police Publishing House, Hanoi [ 14];

- Nguyen Ngoc Hoa (1995), "Decision on punishment in Vietnamese criminal law" , National Political Publishing House [ 21];

- Hoang Van Hung (2000), “Chapter XVI - Criminal responsibility for minors who commit crimes” [ 22];

- AI Dong-go-va (1987), "Psychological and social aspects of juvenile crime" , Legal Publishing House, Hanoi [ 20];

- Trinh Dinh The (2006), "Applying criminal policy to juvenile offenders", Justice Publishing House, Hanoi [ 47];

- Vu Duc Khien, Bui Huu Hung, Pham Xuan Chien, Do Van Han, Tran Phan (1987), "Preventing juvenile crime", Legal Publishing House, Hanoi [ 24];

- Tran Duc Cham (2002), "Youth and juveniles breaking the law - Current situation and solutions", National Political Publishing House, Hanoi [ 8];

- Dinh Van Que (2000), "Research on punishment and decision on punishment in Vietnamese Criminal Law" , National Political Publishing House, Hanoi [ 34];

- Dinh Van Que (2000), "Practice of applying Criminal Law - Theoretical and practical issues" , Phuong Dong Publishing House [ 33];

- Chu Thi Trang Van (2006), "Characteristics of criminal law application" , State and Law Magazine No. 03/2006 [ 61];

- Faculty of Law, Hanoi National University (2011), “Protecting vulnerable groups in criminal proceedings” , Hanoi National University Publishing House [ 26].

2.2. Actual research situation

Scientific works on punishment that the author of the thesis has consulted include:

- Institute of Legal Science Research, Ministry of Justice (2000), Strengthening the capacity of the juvenile justice system in Vietnam , Journal of Legal Science Information, No. 1/2000 [ 65] .

- Trinh Dinh The (1997), Some opinions on applying prison sentences to juvenile offenders , Democracy and Law Magazine, No. 10 [ 46];

- Dinh Van Que (2003), Decision on imprisonment for minors

crime , Journal of Law, Supreme People's Court, No. 5 [35];

- Tran Van Dung (2005), Basic characteristics of criminal responsibility of minors who commit crimes in the history of Vietnamese criminal legislation , People's Court Journal, No. 22 [ 12];

- Nguyen Khac Quang (2012), Decision on punishment in cases where minors prepare to commit a crime or attempt to commit a crime , People's Court Journal, No. 08 [ 32];

- Luong Ngoc Tram (2014), Perfecting Vietnamese criminal law regulations on penalties applied to minors who commit crimes , People's Court Journal, No. 19 [ 58];

- Dang Thanh Son (2008), Vietnamese law on juvenile justice, Special issue of the Legislative Studies Journal, No. 20 (136), December 2008 [44];

- Doan Tan Minh (2008), Discussion on the scope of use of the term "juvenile offender" , People's Court Magazine, No. 9 (5)/2008 [ 28];

- Truong Hong Son (2009), Some provisions of international law and some countries on the issue of rights of juvenile offenders , Electronic Journal of People's Police Academy, August 20, 2009 [ 45];

In addition, many authors also choose the issue of deciding on punishment in general as the topic of their thesis such as:

- Nguyen Thi Huong (2011), Decision on punishment for minors who commit crimes, Master's thesis in law - Academy of Social Sciences, [ 23];

- Nguyen Quoc Thien (2015), Decision on punishment for minors who commit crimes according to criminal law from the practice of Quang Nam province , Master's thesis in law - Academy of Social Sciences [ 48];

- Nguyen Gia Vien (2015), Decision on punishment for minors who commit crimes according to criminal law from the practice of Soc Trang province , Master's thesis in law

- Academy of Social Sciences [ 68]...

3. Research purpose and tasks

3.1. Research purpose

Based on theoretical and legal research and analysis of practical application of the law

Law on juvenile offenders in Quang Ngai province from 2012 to 2016, the topic makes recommendations on perfecting the provisions of criminal law, as well as proposing solutions to apply the provisions of criminal law on applying penalties to juvenile offenders in a more appropriate manner and also aims to contribute to legal awareness, strengthen the spirit of fighting against juvenile offenders in the whole society; limit the conditions for committing crimes, find solutions to prevent juvenile offenders.

3.2. Research tasks

- Firstly, study the theoretical and legal issues on the application of criminal law to juvenile offenders;

- Second, to study the practical application of criminal law to juvenile offenders in Quang Ngai province from 2012 to 2016;

- Third, recommend improving criminal law and solutions to ensure proper application of the law to juvenile offenders.

4. Research object and scope

4.1. Research subjects

Based on the actual application of criminal law to juvenile offenders in Quang Ngai province from 2012 to 2016, the thesis must determine and explain the consistency or inconsistency between the provisions of criminal law and the actual criminal acts of juveniles.

In addition, the thesis also studies theoretical issues on law enforcement and criminal law enforcement; causes of limitations in criminal law enforcement; and proposes solutions to contribute to improving the quality of criminal law enforcement for people who have not committed crimes.

4.2. Scope of research

- Regarding content, the topic is carried out within the scope of Criminal Law and Criminal Procedure;

- Regarding location, the project is carried out within Quang Ngai province;

- Regarding time, the research topic uses actual data from 2012 to 2016, including statistics of the People's Court of Quang Ngai province and 100 first-instance criminal judgments.

5. Methodology and research methods

5.1. Methodology

The topic is conducted on the basis of Marxism-Leninism methodology, Ho Chi Minh thought, the guiding viewpoints of our Party and State on crime and application of criminal law to juvenile offenders.

5.2. Research methods

In the process of implementing the topic, the thesis applies research methods typical of the majors of Criminal Law and Criminal Procedure, such as: historical method; comparison, including comparative law; summarizing practices; analysis; statistics; synthesis...

6. Significance of the topic

6.1. Scientific significance: The research results of the Thesis contribute to perfecting the law as well as perfecting the theory of applying criminal law; at the same time, it can be used as a reference document in scientific research and law training.

6.2. Practical significance: The research results of the Thesis can be used in practice to direct and conduct law enforcement activities, especially to improve the effectiveness of the Court's adjudication work, when resolving criminal cases committed by minors in Quang Ngai province.

7. Structure of the Thesis

In addition to the Introduction, Conclusion and References, the content of the thesis includes 3 chapters, specifically as follows:

Chapter 1: Theoretical issues and legal basis of law enforcement for juvenile offenders.

Chapter 2: Current status of criminal law application to juvenile offenders in Quang Ngai province.

Chapter 3: Perfecting the law and solutions to improve the effectiveness of criminal law application for juvenile offenders.

CHAPTER 1

THEORETICAL ISSUES AND LEGAL BASIS OF APPLYING THE LAW TO JUVENILE OFFENDERS

1.1. Theoretical issues on the application of criminal law to juvenile offenders

1.1.1. Concept of juvenile offenders

When referring to the concept of applying criminal law to juvenile offenders, the first issue that needs to be clarified is the concept of juvenile offenders.

Juvenile offender is a term used in criminal law and criminal procedure law. However, there is no official legal concept explaining this term, although the Penal Code and Criminal Procedure Code have a separate chapter on juvenile offenders. In criminal law, the term juvenile is used from two perspectives: as the subject of crime and as the object of crime. From the perspective of the subject of crime, the age of juvenile offenders is limited more narrowly than the age of juvenile offenders in other branches of law, that is, from 14 years old to under 18 years old. According to Article 68 of the 1999 Penal Code, “ Juveniles from 14 years old to under 18 years old must bear criminal responsibility according to the provisions of this chapter, and at the same time according to other provisions of the General Part of the Code that are not contrary to the provisions of this chapter ” [ 37, p.18].

Article 1, Circular No. 01/2011/TTLT- VKSNDTC- TANDTC - BCA- BTP-

On July 12, 2011, the Ministry of Labor, Invalids and Social Affairs introduced the concept:

Minors are people who have not fully developed physically and mentally, and are vulnerable, especially when they participate in legal proceedings during the resolution of cases. Therefore, depending on their age, maturity level and personal needs, they need to be protected in accordance with the provisions of law when participating in criminal proceedings [64].

A minor is a person who has not fully developed physically, mentally, and spiritually, and does not have full rights and obligations as a citizen, and is understood from the following two perspectives:

Firstly , from a general perspective (in terms of thinking, perception, skills, physical strength, spirit development...), minors do not have a full and comprehensive understanding of common concepts and issues, always seeking to assert themselves; high self-esteem, poor self-control... they are easily lured, provoked, enticed, involved in social negativity, crime, and violations of the law.

Second , from a legal perspective , minors do not have full rights and obligations as citizens. According to Vietnamese law, a person with full rights and obligations as a citizen is a person who is 18 years old . The legal boundary to determine adults and minors is the age. The Labor Code stipulates that a minor is a worker under 18 years old; the Civil Code also stipulates that a minor is a person under 18 years old. It can be seen that, when giving the concept of children or minors, in international law, it is not based on psychological or physiological characteristics or physical development, ... but directly or indirectly through age. Both the concept of children and the concept of minors are limited to under 18 years old, at the same time providing an open possibility for countries to stipulate other ages according to their socio-economic, cultural and traditional conditions.

In short, the concept of minors is built on the physical and mental development of humans and is specified by age limits in the legal documents of each country. Accordingly, it stipulates the specific rights and obligations of minors.

From the general regulations of the world and the regulations of Vietnamese law, we can come to a general concept: Minors are all people under 18 years old, not yet developed and perfected physically and mentally, not yet having full rights and specific obligations of adults .

Regarding the concept of juvenile offenders , in Vietnamese criminal law science, based on the provisions of the Penal Code, the practice of fighting and preventing crimes committed by juveniles, as well as characteristics related to psychology, physiology, economic conditions, culture, politics, society, history, and traditions of our country, scientists basically agree on the concept of juvenile offenders.

“ A minor who commits a crime is a person who has committed an act defined as a crime in the Penal Code, has sufficient conditions to bear criminal responsibility and can be handled according to criminal law ” [ 66].

Recently, Professor, Dr. Le Cam and Dr. Do Thi Phuong proposed a relatively complete concept of juvenile offenders... based on the argument that the provisions in criminal law on juvenile offenders are mainly aimed at determining the nature of the crime committed by juveniles and creating conditions for the application of punishments to juveniles in accordance with the nature and level of danger to society of the acts they have committed on the basis of their psychological and physiological characteristics at the time they committed the crime. From the above reasons, the authors proposed the concept: " A juvenile offender is a person from 14 years old to under 18 years old with incomplete criminal responsibility capacity, due to limitations due to psychological and physiological characteristics and has committed a fault (intentionally or unintentionally) in committing a socially dangerous act prohibited by criminal law " [ 7, p.9]. The authors are also correct in pointing out five basic signs of juvenile offenders from the criminal law perspective: 1) From 14 years old to under 18 years old; 2) Having incomplete criminal responsibility due to limitations caused by psychological and physiological characteristics; 3) Having committed acts that are dangerous to society; 4) The acts committed by the juvenile are acts prohibited by criminal law; 5) Having fault (intentional or unintentional) in committing such acts [ 7, p.9].

In summary, based on the above argument, a scientific definition of juvenile offenders can be given as follows: A juvenile offender is a person from 14 years old to under 18 years old who has intentionally or unintentionally committed a socially dangerous act that the Penal Code defines as a crime .

1.1.2. Concept of applying criminal law to minors who commit crimes

Legal regulations are very rich, so the forms of law enforcement are also very rich and different. Based on the nature of law enforcement activities, legal science has identified and generalized the following forms of law enforcement:

Applying criminal law to juvenile offenders from the practice of Quang Ngai province - 2

Comment