Based on Mitigating and Aggravating Circumstances of Criminal Responsibility

The factors that are considered important in the personal factor include: "standard lifestyles, moral values of each family member, communication with society, discipline, collective lifestyle, spirit of sacrifice to protect the right and protect the country, ... We can also see that each different case will have different personalities of the offender. Therefore, in addition to the evidence and proof in the file, the panel of judges must also consider the personal factor to reveal the bad, negative aspects as well as the good aspects to serve as a premise in the trial. The above factors show us the high humanity in the law-making factor of the state as well as creating conditions to correct mistakes for people, families, relatives or the offender himself to have a healthy and good lifestyle. First-time offenders will also have their punishment reduced, this is probably the basic factor that the state wants to aim for to promote people to have a healthier lifestyle.

1. 2.4 . Based on mitigating and aggravating circumstances of criminal responsibility

The law is strict but also humane. The State always has humane measures to reduce the criminal responsibility of the offender. Regarding the criminal's personal background, if the criminal's personal background is good, the court can consider it in the process of choosing the punishment.

In addition to mitigating circumstances, there are also aggravating circumstances. These circumstances are stipulated in the Penal Code for specific crimes to provide high punishment and deterrence to offenders. Mitigating circumstances and aggravating circumstances of criminal responsibility are specifically stipulated in Articles 51 and 52 of the Penal Code 2015.

Different from the humanity in mitigating circumstances, the state raises the strictness, fairness and high deterrence in aggravating circumstances stipulated in the 1999 Penal Code and amended in 2015. However, Article 51 of the Penal Code still has humanity when considering self-confession and surrender as a measure to reduce the penalty. However, the court must consider and consider

Maybe you are interested!

take measures to apply the circumstances appropriately to the right person, the right crime, and the right regulations.

The aggravating and mitigating measures are the fairness and strictness of the state, or reward and punishment. However, crimes are also shown by the state through humanity, if in a case there are many mitigating circumstances, the sentence can be below the penalty range. Or if there are many mitigating circumstances, there is a chance to change to another type of lighter penalty.

Aggravating and mitigating factors in sentencing create pressure on the court's adjudication role. To create fairness and transparency in the assessment of crimes and the determination of types of punishment, the court and the jury need to consider many different aspects to come up with reasonable results. In addition, competent authorities in the consideration and assessment of judicial support also need to comprehensively assess the overall aggravating and mitigating circumstances. This is a reasonable measure in the work of determining crimes as well as promoting the objectivity and transparency of the law in the process of applying the law into practice.

1.2.5. Decision on fixed-term imprisonment in some special cases

The decision to impose a term of imprisonment below the lowest level of the applicable penalty framework

Deciding on a lighter penalty than prescribed by law for people under 18 who commit crimes

With the highest purpose of educating and lenient towards people under 18 years of age who commit crimes, when deciding on penalties for people under 18 years of age, it is necessary to base on the total provisions of Chapter XII on regulations for people under 18 years of age who commit crimes and other provisions of the Penal Code to ensure the principle of most beneficial. In case a person under 18 years of age commits a common crime, when deciding on a lighter penalty than prescribed by law, the Court will switch to a lighter penalty or switch to another lighter penalty.

Then decide on the penalty level within the penalty framework applied in accordance with the provisions on deciding penalties for people under 18 years old in Chapter XII of the Penal Code.

- Note some other contents when deciding on a lighter penalty than prescribed by law. First, when deciding on a lighter penalty than prescribed by law, if it is determined that

The person convicted of a crime with many penalty brackets but not the lightest penalty bracket , when a comprehensive assessment of the case shows that it is not possible to impose a penalty other than imprisonment but it is not necessary to force the convicted person to serve the prison sentence, the Court may decide to give them a suspended sentence. However, in this case, the Court needs to consider carefully and thoroughly and must ensure 05 conditions for the person sentenced to imprisonment to be given a suspended sentence according to Article 2 and 06 cases of not being granted a suspended sentence of Article 3 of Resolution No. 02/2019/NQ-HDTP, in addition, it is also necessary to limit the granting of suspended sentences to convicted people that are condemned and of public concern such as crimes related to the health and life of children, crimes related to positions, corruption, crimes related to the fields of production, business and trade.

Second, it is not always possible to decide on a lighter penalty than the one prescribed by the criminal code. It only applies to the main penalty, but for additional penalties, a lighter penalty cannot be applied because there are not many penalty ranges, there are no regulations on switching to a lighter penalty, and there is no lightest penalty range.

Third, in cases where the convicted person has both mitigating and aggravating circumstances, when deciding on the sentence, the Court must objectively and comprehensively assess the significance of each circumstance and, most importantly, must not lean towards mitigating or aggravating circumstances.

Fourth, there are cases where the offender can be exempted from the penalty, which is a special leniency stipulated in Article 59 of the Penal Code, but has not yet been applied.

exemption from criminal liability. However, because this is a new and open regulation, it is necessary for the Central Judicial Branch to have detailed guidance documents so that courts at all levels can apply the law consistently and effectively, ensuring the humanity and humaneness of criminal law for convicted persons.

1.2.6. Decision on fixed-term imprisonment in case of multiple crimes

Article 55 of the 2015 Penal Code stipulates that in cases where a criminal has committed a crime but then commits more crimes:

“For the main penalty:

Previously imposed sentences will be added together to create a sentence corresponding to the criminal act. For example, if a sentence of fixed-term imprisonment under penalty frame number 1 has been imposed twice, they will be added together to create the most common sentence, but it cannot exceed 30 years in fixed-term imprisonment and 03 years in non-custodial reform.

In addition, in the case of being reformed without detention, but having served half a year of the sentence, we can calculate as follows: we can convert the ratio of 03 days of reformed without detention to 1 day in prison. From there, we can synthesize the punishment into a common punishment according to the law.

If the punishment is already heavy, then it will be added together to increase the severity, and the heaviest will still be the heaviest. For example, life imprisonment, death penalty.

Other penalties may not be aggregated with fines; fines are added together to form a total penalty;

In case of deportation, it is not added to other crimes. For additional penalties:

Additional penalties, if applied to already imposed penalties, will be limited to penalties of the same type due to the provisions of the law for this penalty. Penalties will be added to form a common penalty if both are fines.

Not only of the same kind, the convict must accept all forms of punishment.

the penalties imposed if they are of different types.

Thus, the provisions of Article 55 are provisions on deciding on penalties in cases where the offender commits crimes multiple times and is tried at the same time, meaning that there is only 1 Judgment and 1 single common penalty in this case.

This provision is designed very clearly and easily understood, which is why it completely inherits the old provisions in Article 50 of the 1999 Penal Code without any amendments or supplements. According to the provisions, deciding on a penalty in the case of committing multiple crimes is no different from deciding on a penalty when committing a single crime, meaning that the Court will base on the indictment of the Procuracy, the defendant's defense, the lawyer, the evidence as well as the criminal's personal background, etc. to decide on the penalty. The only difference is the synthesis of the final penalties to issue a common sentence. Thus, in the case of trying a criminal who commits multiple crimes, there will be 2 very clear steps (and also clearly stated in the Judgment).

Step 1: Try each specific crime and decide on the punishment for each.

sin

Step 2: Summarize the penalties for each crime to produce one penalty.

last

Step 1, as the author said, is exactly the same as deciding on a penalty for a crime, so there is nothing more to discuss. Step 2, in particular, has a few small notes:

One is: Summary of penalties divided into main penalties and additional penalties (there will be different ways of summarizing)

Second: For the main penalty, there are 2 types of synthesis:

Type 1: Aggregate by cumulative method but not more than 03 years for non-custodial reform, 30 years for fixed-term imprisonment. For example: A commits theft and is sentenced to 05 years in prison, commits robbery and is sentenced to 20 years in prison; commits snatching and is sentenced to 10 years in prison, then the total sentence of

A = 05 + 20 + 10 = 35 years but has exceeded the limit of 30 years so will take 30 years in prison.

Type 2: Aggregation by attraction method (the highest penalty will attract the remaining penalties), this type is only applied if at least 1 of the crimes must be sentenced to life imprisonment or death. If the heaviest sentence is life imprisonment, the final sentence will be decided to be life imprisonment and the same for the death penalty. For example: A was sentenced to 10 years for robbery, 20 years for robbery and death for murder, then the final combined sentence will be death.

Fines and expulsion are two special penalties. They can be applied as the main penalty and can also be applied as additional penalties and will not be combined with other penalties. For fines, the fines will be added together into a common penalty (according to the cumulative method without a maximum limit).

Three is 3: The summary for additional penalties has 3 types:

Type 1: Cumulative but with a maximum limit for additional penalties of the same type and the limit will be according to the regulations for each type. For example: A commits crime 1 and is subject to additional penalty of Probation for a period of 03 years; crime 2 is subject to Probation for a period of 04 years. Total penalty = 03 + 04 = 07 years but the maximum additional penalty for Probation is 05 years (Article 43), so the final penalty will be 05 years.

Type 2: Cumulative but not limited to the maximum level. This type of aggregation only applies to additional penalties that are fines. For example: For crime 1, A is fined 500 million VND, crime 2 is 300 million VND, crime 3 is 200 million VND, the final total penalty will be 1 billion VND.

Type 3: Mixture of all penalties. This type is applied when the additional penalties imposed are of different types. In that case, the convicted person must serve all the penalties imposed. For example: A commits crime 1 and is subject to the measure

Prohibition of residence, crime 2 is subject to the penalty of deprivation of certain civil rights, crime 3 is subject to the penalty of confiscation of property. In the end, A must carry out all 3 additional penalties above.

1.2.7. Summary of fixed-term imprisonment sentences of multiple sentences

In case a person has multiple convictions, according to Article 56 of the Penal Code, the combined penalty is summarized as follows:

- For criminals who are being tried but must previously serve another sentence, the court will make a decision on the crime being tried. From there, add the two crimes to create a common sentence for the common penalty. The penalty of all sentences from the previous sentence that have not been fully served plus the current sentence will create the common penalty stated in Article 55 of the Penal Code. The time to execute the penalty will be summarized by the court when calculating the total time deducted when serving the old penalty plus the new penalty to create the common penalty.

- The decision on a combined penalty is when a person commits a new crime and must still serve the old penalty. The Court combines the decision on the penalty for the new crime with the previous sentence and issues the combined penalty, which is the decision on a combined penalty. The combined penalty is decided according to the provisions of Article 55 of the Penal Code.

- According to the provisions of Clauses 1 and 2, Article 56 of the Penal Code, the Chief Justice of the Court must issue a decision to consolidate the penalties of the judgments when a criminal must serve a sentence consisting of many judgments that have come into legal effect and the penalties of the judgments have not been consolidated.

1.2.8. Decision on fixed-term imprisonment in cases of preparing to commit a crime or attempted crime

Decision on punishment in case of preparing to commit a crime or attempted crime

is stipulated in Article 57 of the 2015 Penal Code as follows :

“This law provides penalties for attempted crimes and criminal preparations. For crimes, there are corresponding crimes depending on the nature, danger to society, or other circumstances that make the crime

carry out the act to the end,…

Cases of preparing to commit a crime are specifically regulated in the penalty framework.

The highest penalty is life imprisonment which can be applied to the penalty for attempted crimes. In addition, in particularly serious cases, the death penalty can be applied. The prison sentence shall not exceed three-quarters of the term of imprisonment.

Therefore, when the Panel of Judges decides on the punishment for a person who prepares to commit a crime and an attempted crime, the Court must rely on the following grounds:

+ The provisions of the Penal Code prescribe the corresponding crimes for the violation.

+ Nature and level of danger to society.

+ Based on the level of criminal intent.

+ Consider other circumstances that prevent the offender from carrying out the crime to the end.

Under equivalent conditions, a completed crime is always more dangerous than an attempted crime and even more dangerous than a crime in the preparation stage. Based on that perception, Clause 3, Article 57 of the Penal Code stipulates:

+ This law applies to cases of preparing to commit a crime. If in case the offender prepares to commit a crime, for a fixed-term imprisonment, the highest penalty shall not exceed one-half of the penalty. In cases of life imprisonment and death penalty, the penalty shall not exceed 20 years in prison.

+ In the case of an attempted crime, the highest penalty that can be applied for an especially serious crime is life imprisonment or death penalty. In the case of a fixed-term imprisonment, the highest penalty is no more than three-quarters of the penalty prescribed in the current Penal Code.

Comment