Fourth , a fine is a sentence that requires a convicted person to pay a certain amount of money to the state budget. The certain amount of money that a convicted person must pay is an amount within the minimum and maximum limits prescribed by the specific law. A criminal is only subject to a fine when the specific law in the Crimes Section of the Penal Code stipulates a fine as the main penalty or an additional penalty. In cases where the law does not stipulate a fine, the Court may not impose a fine on the criminal.
Fifth , the amount of money confiscated must depend on the nature and seriousness of the crime, taking into account the offender's property situation, as well as fluctuations in market prices. When considering the application of a fine to a criminal, the Court must not only consider and consider the provisions of the Penal Code, the nature and level of danger of the crime committed, the offender's personality, aggravating and mitigating circumstances of criminal responsibility, but must also consider the offender's property situation and fluctuations in market prices. Only then can the Court decide on a reasonable fine, commensurate with the nature and level of danger to society of the crime, ensuring the principle of fairness and the feasibility of the fine in practice.
Sixth , a fine is a type of penalty applied as the main penalty, or applied as an additional penalty when the main penalty is not a fine. A fine is applied as the main penalty for people who commit less serious crimes that violate economic management order, public order, administrative management order and a number of other crimes prescribed by the Penal Code, and is applied as an additional penalty when a fine is not the main penalty for people who commit crimes related to corruption, drugs or other crimes prescribed by the Penal Code.
1.1.2. Purpose of fines
The purpose of punishment is the desired outcome when punishment is applied in practice.
Maybe you are interested!
-
Fines under Vietnamese criminal law from the practice of Da Nang city - 2 -
Overview of the History of Formation and Development of Vietnamese Criminal Law from the August Revolution in 1945 to the Present on the Crime of Property Theft -
Procedure for Applying Law in Criminal Investigation Cases -
Provisions of Criminal Procedure Law on Depositing Money or Valuable Assets as Security -
Crimes of Violating the Duties and Responsibilities of Military Personnel According to the Provisions of Vietnamese Criminal Law from 1945 to Before the Promulgation of the Criminal Code
In history and in criminal law theory there are many different views on the purpose of punishment. The concept of crime will have a corresponding concept.
response to the purpose of punishment. In general, these concepts can be divided into two types. The first type of concept considers punishment as a tool to take revenge on criminals. According to this concept, punishment is considered a measure allowed by the State to be applied to punish and take revenge on criminals. The punitive nature of punishments according to this concept is often very harsh, common punishments are corporal punishment, physical torture and trample on human dignity.
The second type of concept considers punishment as a tool to fight against crime, that is, punishment aims to reform and educate criminals to become honest people, prevent them from reoffending and fight against others from committing crimes, while punishment is inherently an attribute and content of punishment, a means to achieve the goal, not the purpose of punishment. "Punishment is the content, an attribute, a method of implementing punishment, punishment is an important premise to achieve the goal of crime prevention" [27, p.25] .
Or there is a view that punishment has two purposes: specific prevention and general prevention. “In the purpose of specific prevention, punishment and reformation, education of criminals, preventing them from committing new crimes are two parallel purposes that exist and have a close relationship, and can only achieve the final and main purpose of reforming and educating criminals if the punishment applied to them is commensurate with the crime they committed” [19, p.227] . Or “punishment is the purpose but at the same time it is also the means to achieve the final and main purpose of punishment for criminals, which is to educate and reform them” [22, p.33] .
According to Vietnamese criminal law, “Punishment is not only intended to punish criminals but also to reform them into useful people for society, obey the law and the rules of socialist life, and prevent them from committing new crimes. Punishment also aims to educate others to respect the law, fight against and prevent crime” [2] . Thus, the purpose of punishment includes:
- Punishing criminals, but this is not the only, highest and final purpose of punishment.
- Reform them to become useful people for society, obey the law and social rules, and prevent them from committing new crimes.
violation
- Educate others to respect the law, fight against and prevent crime.
* A fine is a type of punishment in the legal penalty system.
Vietnamese criminal law, with the legal content of depriving a certain amount of money from the convicted person to the State budget, also aims to achieve the purpose of punishment in general. Therefore, fines also have purposes such as punishing criminals; reforming and educating, preventing them from committing new crimes and fighting against general crimes. The content and nature of fines is a coercive measure that can directly and strongly impact the economic aspect on criminals, so it is especially effective in fighting against crimes of a profiteering nature, crimes using money as a tool, means of operation, crimes that violate economic management order, environment, public safety order, administrative management order... without going to the extent of applying more severe penalties, restricting or depriving the convicted person of his or her freedom. By depriving the convicted person of a certain amount of money, this punishment not only deters and punishes the offender but also affects the offender's consciousness, making them realize their wrongdoings, realize the inevitability of punishment for the crime they have committed, thereby educating and self-educating them to become useful people in society, and at the same time deterring others from entering the path of crime.
However, a fine is not a purely economic measure. “The economic impact of this penalty is only an inherent attribute of it, along with other attributes (applicable to the offender himself, leaving a criminal record for a certain period of time, legal consequences of the crime) creating the basic characteristics that distinguish a fine from other coercive measures” [55, p.167] . When prescribing and applying a fine in practice, criminal law does not set an economic purpose for a fine, nor does it use a fine to increase revenue for the budget. Depriving the convicted person of a certain amount of money to the State treasury naturally creates revenue for the budget, but “this revenue is only a consequence of applying a fine, not the purpose of a fine” [55, p.167] .
1.1.3. The role, position and significance of fines
As a punishment in the system of punishments prescribed by criminal law, fines as well as other punishments have an important meaning in reforming, educating criminals, deterring and preventing crimes. Fines deprive criminals of their material rights, directly impact their property situation, thereby affecting the consciousness of criminals, making them realize their mistakes, correct them and not re-offend. For others, the application of fines to criminals not only has the meaning of a deterrent but also provides them with certain legal knowledge.
The provision of fines in our country's criminal law has contributed to diversifying criminal handling measures in the fight against crime. " Diversifying penalties in the penal system is a condition to ensure consistency in the practice of trials of courts, ensuring that trials are equal and fair " [55, p.2]. When fines are prescribed as the main penalty, they will create the ability to differentiate and individualize criminal responsibility in cases where it is necessary to apply penalty measures that can have a strong economic impact on the offender without having to use other legal restrictions. A fine is a heavier penalty than a warning but lighter than a non-custodial reform penalty in the penal system; Fines are a punishment that occupies a successive position between warnings, which are the least severe measures in the penal system, and non-custodial reform, which is a lighter measure than fixed-term imprisonment, creating continuity in the direction of gradually increasing the severity of the penal measures.
Fines create the ability to individualize punishment for different criminal cases in terms of the nature and level of danger to society of the behavior, contributing to the implementation of the policy of strict punishment combined with leniency of Vietnam's criminal law.
Applying fines to criminals on the one hand saves social costs for education and rehabilitation, limits negative aspects that may arise from applying imprisonment, and on the other hand still achieves the purpose of rehabilitation, education and crime prevention. If a fine is applied, the criminal is not isolated.
from society, to live and work in a completely normal environment, thereby also demonstrating the humanitarian principle of our country's criminal law.
In addition, a fine is a type of penalty that can be applied both as a main penalty and as an additional penalty. However, a fine cannot be applied simultaneously as both a main penalty and an additional penalty for a specific crime with a specific type of crime. The “ dual nature ” of a fine increases the flexibility in applying fines to different types of crimes in different specific cases.
In addition, as an additional penalty, fines together with other additional penalties enrich the range of criminal measures that can be applied to fulfill the social function of punishment, creating a legal basis for fully and effectively implementing the inherent capabilities of these measures in the fight against crime.
1.2. Brief history of legislation on fines in Vietnamese criminal law before the 1999 Penal Code.
1.2.1. Regulations on fines from after the August Revolution in 1945 to April 30, 1975
From the early days of the people's government, under the leadership of President Ho Chi Minh, our state issued the 1946 Constitution, recognizing the social regime and legal principles of people's democracy... Based on the spirit of this Constitution, a series of legal documents in the criminal field were issued, such as: Decree No. 27 SL dated February 28, 1946, regulating the punishment of acts of kidnapping, extortion and assassination; Decree No. 223 SL dated November 17, 1946 on the punishment of bribery; Decree No. 61 SL dated July 5, 1947 on the prohibition of capital export; Decree No. 150 SL dated November 7, 1950 on the organization of prisons; Decree No. 180 SL dated December 20, 1950, stipulating penalties for crimes of currency sabotage and sabotage of the value of Vietnamese silver; Decree No. 001 SL dated April 19, 1957, prohibiting all acts of economic speculation; Decree No. 30, 1967, punishing counter-revolutionary crimes; Decree No. 21, 1970, punishing crimes against socialist property; Decree No. 21, 1970, punishing crimes against citizens' private property; Decree No. 06, 1972
regulations on forest protection…
It can be seen that although a series of criminal law documents have been issued, there is no document regulating the system of penalties. Based on the decrees, orders, ordinances, decrees... that have been issued, it can be concluded that during this period, penalties include the following types:
- Main penalties: Death penalty, life imprisonment, fixed-term imprisonment (6 days to 20 years), warning, probation (1 - 5 years), fine.
- Additional penalties: Deprivation of certain citizen rights, confiscation of property, compulsory residence and residence ban from 1 to 5 years, ban from practicing certain occupations or ban from holding positions directly related to socialist property, probation (1 to 5 years), fine.
In this stage, the fine has been prescribed as the main penalty or an additional penalty for each specific crime. The fine in this stage is mainly applied to crimes of a profit-making nature in cases where the crime is not really dangerous (less serious), the criminal's personal background is relatively good and deserves consideration and leniency in order to deprive the criminal of the illegal profits he has obtained, to have an economic impact on the criminal and to prevent him from committing new crimes.
Fines are the main punishment applied in special cases: minor crimes, personal or family circumstances that deserve special consideration (old age, illness, etc.), the level of fine depends on the nature of the act, the offender, and also needs to consider the economic capacity, etc. so that the sentence can be enforced and the fine does not affect the offender's family life too much, etc. [49] .
During this period, there was no criminal law document regulating measures to recover money and objects directly related to the crime, so the fine was considered as an additional penalty to recover the damaged property and illegal profits that the offender had obtained. The fine was an additional penalty that was mostly applied with a prison sentence or suspended sentence... "Not only to punish the offender, applying a fine as an additional penalty also aimed at hitting the motive
"The criminal's greed for personal gain, eliminating material conditions so that the criminal does not commit new crimes" [50].
Fines in the form of a maximum or minimum amount of money depending on the dangerous nature of the crime are the usual way of regulating fines during this period. In addition, fines can also be regulated by a number of times the value of the illegal goods (this form is often seen in tax crimes). For example: - Crime of smuggling opium " ... fine from 1 to 5 times the value of the smuggled opium " [48] . Crime of giving bribes to public officials, crime of public officials receiving bribes... are punished with imprisonment from 5 years to 20 years and a fine of twice the value of the bribe [39] .
During this period, the Supreme People's Court issued many documents guiding the application of fines. The fine level in each specific case must be based on the nature and level of danger of the crime. In addition, fines must also be based on the conditions, circumstances, and economic capacity of that person, and not jointly sanctioned. Fines are only applied in cases where there are specific provisions of law: When handling, it is necessary to consider carefully, in addition to paying attention to the nature and level of the crime... it is also necessary to consider the economic capacity of the offender, avoiding the tendency to impose too much fine, making the sentence impossible to enforce, affecting the family life of the convicted person. Based on the circumstances of the offender, the Court may not impose a fine or impose a fine below the minimum level, in any case, it will not change the fine to a prison sentence and vice versa... [51].
1.2.2. Regulations on fines for the period from April 30, 1975 to before the 1985 Penal Code took effect
On April 30, 1975, the South was completely liberated, our people's resistance war against the US came to final victory, the country was unified and began the process of building socialism nationwide. Many activities were carried out, in which the most important thing to mention was the construction of a unified legal system that could be applied nationwide.
Based on the resolution passed at the first session of the 6th National Assembly on July 2, 1976, under the guidance of the Government Council, current legal documents of the two regions are applied nationwide.
Criminal law regulations previously issued in the North continued to be applied in the South. Particularly in the criminal field, the Provisional Revolutionary Government of South Vietnam issued many decrees, most notably: Decree No. 03/SL regulating crimes and penalties issued on March 25, 1976. This decree stipulates 7 different groups of crimes, including regulations on the application of fines along with imprisonment for two groups of crimes: economic crimes and crimes against public order, public safety and citizens' health.
During the period 1980 - 1985, along with the birth of the Constitution of the Socialist Republic of Vietnam, in 1980, many important legal documents were issued such as the Ordinance dated May 20, 1981 punishing bribery crimes, the Ordinance dated June 30, 1982 punishing speculation, smuggling, counterfeiting, and illegal business. In these two ordinances, fines were stipulated as the main penalty.
In general, during this period, there was no Penal Code, so fines were stipulated in many different types of documents such as: Ordinances, Decrees, Circulars, Court Summary Instructions... Fines are stipulated as both main and secondary penalties, and are applied relatively commonly in many fields: publishing, business, currency, economics, public order, crimes related to positions... Fines are the main penalty mainly applied to crimes of a profiteering nature, using money as a means of committing crimes... to deprive the offender of illegal profits, to economically punish the offender and to deter others from committing crimes.
Fines are usually set at a maximum and a minimum depending on the nature and severity of the crime. Fines can also be set at the price of a quantity of rice, which is a number of times the value of the illegal goods. During this period, fines were significantly increased to 10 times the value of the illegal goods (Article 3, Clause 3 of the Ordinance on the Punishment of Speculation and Smuggling).
1.2.3. Fines in the 1985 Penal Code
The 1985 Penal Code was promulgated on June 27, 1985 and officially took effect from January 1, 1986.