7) Suspended sentence; 8) Postponement of execution of prison sentence; 9) Temporary suspension of execution of prison sentence; 10) General amnesty; 11) Special amnesty; 12) Clearance of criminal record.
The measure of pardon can be defined as a measure that demonstrates the humane nature of criminal law (such as: Statute of limitations for criminal prosecution; Statute of limitations for execution of judgment; Exemption from criminal liability; Exemption from punishment; Exemption from serving a sentence; Reduction of the imposed sentence; Suspended sentence; Postponement of serving a prison sentence; Temporary suspension of serving a prison sentence; General amnesty; Special amnesty; Clearance of criminal records), reflecting the State's leniency towards criminals and is applied by competent authorities when certain conditions prescribed in the Penal Code are satisfied.
1.2.2. Basic characteristics of exemption measures in Vietnamese criminal law
Firstly, the measure of pardon is a measure of the nature of exempting or reducing criminal liability or punishment.
Punishment is a tool to ensure and maintain social order and is a measure that plays a very important role in fighting, preventing and gradually repelling crime, bringing peace to society.
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The measure of pardon is essentially a measure to exempt or reduce criminal liability and punishment for the offender because the measure of pardon significantly reduces the level of fault and the danger to society of the criminal act or based on the personal characteristics of the offender, the circumstances of the crime... to exempt criminal liability or exempt all or reduce part of the penalty or postpone the time of serving the penalty.
In specific criminal cases, the perpetrator satisfies the requirements of any of the exemption measures such as: voluntarily stopping the crime halfway; due to a change in the situation; due to repentance; when there is a decision on special pardon, general amnesty... they will be exempted from criminal liability.
In addition, people who also commit socially dangerous acts but do not satisfy the requirements of any exemption measure must bear the adverse legal consequences of their acts as punishment.
Second, the measure of pardon is provided for in the Penal Code.
“The measure of pardon in criminal law is often a humanitarian norm (or institution) recorded in the General Part of the Criminal Code because it demonstrates respect and protection of human rights by criminal law, which are the most noble social values generally recognized in a state of law” [12, p.13]. The measure of pardon is a measure that is “beneficial” to the defendant (when meeting certain conditions), so the measure of pardon can only be prescribed in the Criminal Code. Because, only those who commit a crime prescribed by the Criminal Code are subject to criminal responsibility” [4]. With the aim of clearly demonstrating the humanity of the law and ensuring the legal principles of the socialist rule of law state in Vietnam, the measure of pardon is a measure that can only be applied to criminals when such measure is prescribed in the Penal Code and the measure of pardon is prescribed in the general part of the Penal Code, in articles 23-25, 55-67, 76-77.
The provisions on pardon measures in criminal law (written regulations) create a unified basis for the application of humane and lenient measures; ensure fairness, strictness, speed, timeliness, and compliance with the law for all criminal acts; ensure equality, without discrimination between men and women, ethnicity, belief, religion, social class, and status for all criminals to be equal before the law; ensure the implementation of the policy of severely punishing masterminds, leaders, commanders, stubborn opponents, hooligans, dangerous recidivists, those who abuse their positions and powers to commit crimes; criminals who use cunning and organized tricks... leniency for
The person who confesses, honestly reports, denounces accomplices, makes meritorious deeds to atone for his crime, repents, voluntarily makes amends or compensates for the damage caused [4]. When the measures of forgiveness are officially prescribed in the law, it creates a consistent basis in the source of applying measures of a humanitarian nature. The regulation of measures of forgiveness is not only a consistent basis in application but also a basis for perfecting measures of forgiveness in a direction consistent with the rule of law state.
In terms of the competent authority to apply humanitarian measures in general, in addition to the Court, there may be other agencies that apply such measures, such as the National Assembly, the President, the People's Committee, the Procuracy, the Police, etc. In reality, in addition to the Court, these agencies are also allowed to apply certain measures of forgiveness to the defendant (such as general amnesty, special amnesty), in other cases the Court is the only agency authorized by the State to apply them to criminals. This comes from the function of the Court - the only agency with the authority to judge whether an act is a crime or not and apply sanctions to that crime. The Court comprehensively bases on the circumstances showing the nature and level of danger of the crime, aggravating and mitigating circumstances of criminal responsibility, the personality and circumstances of the offender, etc. and most importantly, the provisions of the law to decide whether to apply punishment or not, to apply measures of forgiveness (if any) to the offender. However, the Court can only decide on the measures of exemption prescribed in the Penal Code and has no right to apply any other measures not prescribed by law to the defendant. At the same time, the type of exemption measure applied by the Court must also be based on very strict regulations within the framework prescribed by law.
In order to ensure the rights of those who commit socially dangerous acts are unified and equal, the provisions on exemption measures in the Penal Code are inevitable. Law enforcement agencies may only use exemption measures prescribed in the law. Such provisions are also the basis for ensuring a unified approach to fighting and preventing crime, ensuring that citizens' basic rights are comprehensively protected, avoiding cursory handling and arbitrary application of provisions on exemption and exemption for criminals. When these provisions are legalized, they are specific, easy to guide implementation in practice, and at the same time, necessary provisions are promptly supplemented and outdated provisions are eliminated.
Third, the measure of pardon demonstrates the humanity and leniency of criminal law towards criminals.
The name of this measure itself contains humanity, the measure of pardon gives criminals the opportunity to shorten their sentence, serve only part of it or be exempted from the entire sentence.
Humanity is the harmonious combination of state interests, community interests and individual interests. The measure of pardon reflects the correct attitude of the State towards the offender in a unified, dialectical, harmonious and reasonable whole. It is possible to speak of humanity and leniency when applying the measure of pardon to reasonably resolve the correlation between coercion and persuasion, between severe punishment and education and reformation of the defendant. In this correlation, the severity of the punishment only stops at the necessary and sufficient level to educate and reform the offender and deter and prevent in general.
The measure of pardon first of all shows the clemency of the State, puts the purpose of educating and reforming the offender first, considers all the good characteristics of the offender's personality according to the provisions of criminal law, carefully considers the psychological and physiological characteristics as well as the circumstances.
specific to the offender to decide on a type of punishment at the lowest necessary level, sufficient to ensure the purpose of individual and general prevention, sufficient to ensure the purpose of education and reform of the offender as well as the purpose of deterrence, preventing others from committing crimes and the purpose of encouraging, motivating and educating the masses to actively participate in the fight against and prevention of crime.
The measure of pardon contributes to deciding a legal penalty, while ensuring fairness, humanity, and meeting the requirements and expectations of the people and the convicted person himself. Ensuring objectivity, comprehensiveness and the principle of humanity in deciding on penalties.
Fourth, the measure of pardon demonstrates the protection of human rights of criminal law.
Law is the official recognition in written or unwritten form of each country, expressing the will of the ruling class. Law is the standard, the goal to achieve maximum protection of human rights. Based on that, human rights are expressed and entered into human life, and at the same time, it is the measure of the implementation of those rights to certain extents, so protecting human rights is the function of law, reflecting the humanity of the law of the rule of law state in modern society. Therefore, when the law regulates the issue of protecting human rights, it is inevitable that basic human rights will gradually penetrate into the awareness of legislators and people, at the same time have high enforcement effect and be recognized by the whole society.
Criminal law defines and officially recognizes the concept of crime, clearly distinguishing criminal acts from other violations of the law. Therefore, clearly understanding the law as well as clearly understanding each individual's behavior is both compliance with and respect for the law, respect for society and ultimately contributing to the realization of human rights.
To ensure that human rights are respected and strictly implemented in society, the law, specifically criminal law, sets out prohibitions and sanctions to be applied when crimes occur and guides and compels citizens in society to choose to behave according to regulations or behave appropriately in a predetermined context. The law even has discretionary provisions that allow people to be flexible in their behavior but must be within the framework of the law.
The measure of pardon is the exemption from criminal liability, exemption, reduction of punishment... for the offender. This measure is concerned with what adverse legal consequences the offender will have to bear and what are the consequences? When the defendant is subject to the measure of pardon, their punishment will be "lighter" than the punishment of similar cases without the measures of pardon. When enjoying this circumstance, the defendant will still be preserved or only have certain rights restricted (not completely deprived). For example, when applying a suspended sentence, the defendant is not completely deprived of his or her freedom but only restricted to a certain extent...
Fifth, the measure of pardon is only applied in cases prescribed by criminal law.
The measure of pardon is a measure that is beneficial to the offender, so where these measures are prescribed and how they are applied in practice is a matter of concern. To ensure the fairness and humanity of the law, the measure of pardon cannot be applied arbitrarily but must follow a certain procedure. Those procedures must be prescribed in writing in certain documents (in criminal law and documents guiding implementation).
When a crime arises and satisfies the requirements of certain measures of immunity, it is necessary that such measures be provided for by law and in certain procedures.
The regulation that the measure of pardon is only applied in cases prescribed by law not only ensures a unified approach to crime prevention and control, ensures human rights and legitimate interests of the State, collectives and individuals from being violated by criminals, but also serves as a basis for creating unity in the understanding and application of the provisions of criminal law on pardon measures by competent authorities to ensure timely and lawful settlement of cases, and to prevent injustice and mistakes from occurring. Contribute to amending and supplementing the law according to changes in the political, economic and social situation to suit the requirements of crime prevention and control in the new period.
Sixth, the measure of pardon is only applied to individual offenders. Punishment and criminal responsibility are always associated with specific individuals.
The criminal law system has not yet recognized the criminal responsibility of legal entities. Therefore, the measure of exemption must also be attached and can only be attached to specific individuals.
Based on the objective reality that humans are the sum of social relationships and only humans are the subject of crime, the measures of exemption prescribed in criminal law are only for specific individuals. In a case of complicity with many accomplices (people: practicing, instigating, organizing, assisting), the measure of exemption of each person is the person who enjoys it. This characteristic also shows the "severe punishment of the mastermind, leader, commander, stubborn opposition, hooligan, thug, dangerous recidivist, abusing position and power to commit crimes; criminals using cunning tricks, organized, professional, intentionally causing consequences".
serious. Leniency for those who confess, honestly report, denounce accomplices, atone for their crimes, repent, voluntarily repair or compensate for the damage caused” [4, p.40].
1.3. Concept and basic characteristics of protecting human rights by means of exemption in Vietnamese criminal law
1.3.1. The concept of protecting human rights by means of exemption in Vietnamese criminal law
The measure of pardon plays a necessary and indispensable role in protecting human rights. These measures contribute to eliminating, limiting, and reducing some of the punishment for the defendant. Keeping the defendant in good standing (if exempted from criminal liability, without leaving a criminal record), reducing the time of isolation of the defendant from society, helping them reintegrate into society...
Indirectly, the pardon measure has created a driving force to promote the process of "turning around" and perfecting the personality of the offender. Because the pardon measure is humane and applied to the offender when they commit a crime, those who satisfy the pardon measure will have a "lighter" punishment than those who commit similar acts (but do not satisfy the pardon measures), because in this case the pardon measure has the effect of "lightening" the punishment that the defendant should have received. Therefore, the pardon measure helps the offender have the opportunity to return to the community in a "short" time, partly creating a more comfortable mentality for the defendant to reintegrate into the community. When reintegrating, they have the opportunity to examine what they did in the past, weigh the pros and cons, and consider the attitude of the law towards their actions (leniency, humanity). It can be said that in some aspects, the pardon measure has indirectly created motivation and an environment to perfect and develop the inherent good personality of people.