or crimes in the financial and banking fields such as: Crime of illegal possession of property, crime of destruction or intentional damage to property, crime of unintentional injury, crime of intentional injury, crime of violating regulations on granting certificates of protection of industrial property rights, crime of bribery... in which the application of fines in these cases also ensures the purpose of the penalty without necessarily having to apply more severe sanctions that restrict human freedom but have not been concerned by legislators to regulate in the Section on crimes. This also narrows the scope and subjects of application of fines.
Second , the provisions between the General Part and the Crimes Part of the Penal Code on fines are not yet unified. While the General Part stipulates that fines are applied to less serious crimes, the Crimes Part stipulates that fines are applied to serious crimes, even very serious crimes. Such inconsistent provisions can easily lead to incorrect perceptions about the scope of application of fines, so the Court will choose not to apply fines to serious crimes because if applied, it will be considered contrary to the general provisions on fines, and instead choose other non-deprivation of liberty penalties such as non-custodial reform or imprisonment with a suspended sentence for safety. This more or less affects the effectiveness of applying fines in practice.
Third, the current Penal Code does not have provisions on the conditions for applying a fine similar to the provisions for warnings and non-custodial reform. For example, Article 29 of the Penal Code stipulates: warnings are applied to offenders who commit less serious crimes and have many mitigating circumstances, but not to the extent of exempting the penalty . Or Article 31 of the Penal Code stipulates: non-custodial reform is applied from six months to three years to offenders who commit less serious crimes or serious crimes as prescribed by this Code and have a stable workplace or a clear place of residence, if it is deemed unnecessary to isolate the offender from society . This leads to the fact that when trying and choosing the type of penalty, the Court does not know what conditions to base its decision on to choose a fine, so it has decided to choose other types of penalties for which the law has clearer provisions on the basis and conditions for application. This is also one of the reasons why the rate of applying fines is still not high.
Fourth , fines, when prescribed as the main penalty or as an additional penalty, are prescribed as discretionary sanctions, chosen together with other main penalties such as: fixed-term imprisonment, warning, non-custodial reform, or other additional penalties such as: confiscation of property, prohibition from holding positions and powers. This, on the one hand, diversifies criminal measures and sanctions, ensuring the humanitarian principle of the law; helps the Court to have the conditions to accurately individualize the punishment, distinguishing each crime case and the personal background of the specific offender, but on the other hand, it also makes it difficult for the competent authorities to apply and decide on the punishment to choose a specific punishment or can lead to the situation of applying the punishment arbitrarily and unfairly. There are many cases with the same nature and level of crime, the personal conditions, mitigating circumstances and property conditions are not much different, but some Courts apply fines, other Courts do not apply fines. Trial practice shows that when deciding on punishment in these cases, the Court often tends not to or rarely chooses to apply fines. That also makes the rate of applying fines not high, not reflecting the true nature, role and position of fines in the punishment system.
Fifth, "The current Penal Code does not clearly distinguish between a fine as a main penalty and a fine as an additional penalty in terms of the amount of the fine " [7] . According to the principle, the more dangerous the crime, the more severe the penalty must be, but there are some provisions in the Penal Code when stipulating additional penalties applied to crimes that are not in accordance with that principle. For example, the crime of smuggling (Article 153) is a more dangerous crime than the crime of illegally transporting goods and currency across the border (Article 154). However, the starting level of the fine (as an additional penalty) prescribed by the Penal Code for the crime of smuggling (3 million VND) is lower than the starting level of the fine (also as an additional penalty) prescribed for the crime of illegally transporting goods and currency across the border (5 million VND)... Such a regulation not only fails to distinguish clearly the severity of the fine as a main penalty and the severity of the fine as a main penalty, but also fails to distinguish between the severity of the fine as a main penalty and the severity of the penalty as a main penalty. as an additional penalty but also has a certain impact on the principle of individualizing punishment for criminals.
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Sixth, the gap between the minimum and maximum fines in some articles of the current Penal Code is still unreasonable. Although this gap has been narrowed compared to the 1985 Penal Code, there is still a large gap. Most of the articles regulating the application of fines have a gap between the maximum and minimum of 10 times, with 5 articles regulating a gap of up to 20 times (Clause 1, Article 172, Clause 2, Article 201, Clause 1, Article 220, Clause 1, Article 224, Clause 1, Article 225). In particular, there is 1 article regulating a gap of 30 times (Clause 1, Article 249) and 1 article regulating a gap of 50 times (Clause 1, Article 178). This gap, on the one hand, creates conditions for the Court to individualize the punishment appropriate to each specific crime case, choosing a penalty level appropriate to the nature and level of danger to society of the crime, but on the other hand, it easily leads to arbitrariness and inconsistency in the application of punishment, even affecting the principle of fairness in deciding on punishment.
Seventh, the fines as the main punishment and additional punishments for some crimes are still low, not meeting the requirements of fighting and preventing these crimes, especially in today's socio-economic situation. According to the provisions of the current Vietnamese Penal Code, the minimum fine is 1 million VND and the highest fine in each article is very low; especially for groups of crimes that violate economic management order and environmental crimes. Although the Law amending and supplementing a number of articles of the Penal Code in 2009 increased the fines for some crimes, it is still not suitable for the increase in market prices, especially in the current conditions of continuous economic development.
Eighth, the method of implementing fines allows for payment in multiple installments but does not specify the maximum number of times and within what period; this also makes it difficult for the Courts to decide how to pay the fine, leading to many judgments only imposing fines without specifying how and how many times to pay the fine; at the same time, it also leads to the situation where the convicted person deliberately delays and refuses to execute the judgment even though he or she is capable of executing it. Or in many cases, because the law does not stipulate clearly, instead of choosing a fine, the Court chooses another penalty such as non-custodial reform or suspended sentence.
In addition, criminal law, criminal procedure law, and civil judgment enforcement law have not yet provided for appropriate coercive measures when the convicted person intentionally fails to execute the judgment, have not yet provided for measures to convert a fine into a prison sentence or to force community or public service, or if coercive measures are provided, those measures are not feasible because the provisions are very general, there is no clear enforcement mechanism, and they are not strict enough. This more or less affects the effectiveness of fines.
Ninth , the fine is ranked second in the penalty system of the current Penal Code, only heavier than the warning penalty but lighter than the non-custodial reform penalty and fixed-term imprisonment. However, the 1999 Penal Code has provisions for deducting the period of temporary detention or temporary imprisonment from the time of serving the prison sentence or converting the non-custodial reform penalty into a fixed-term imprisonment, but it does not stipulate the fine. The fact that the Penal Code does not stipulate this issue may lead to a case where the offender has been detained or temporarily detained, but when the Court applies a fine to them, it cannot deduct the period of temporary detention or temporary imprisonment for the convicted person. If a fixed-term prison sentence is applied to deduct the period of temporary detention or temporary imprisonment for them, it will not ensure the principle of fairness for the offender because a fixed-term prison sentence is a more severe penalty than a fine.
Tenth, the 1999 Penal Code stipulates that when deciding on a fine and a specific fine, the Court must consider the offender's property situation, price fluctuations, etc. The above provision is very general and vague, making it difficult to apply in practice; on the other hand, procedural law does not have specific provisions on measures to prove the offender's property, during the investigation process, the investigating agency often pays little attention to the issue of determining the offender's property situation or if there is an investigation, it is very sketchy, while the current criminal procedural law does not allow the Court to conduct investigation activities to collect evidence, and the investigation and proof at trial on this issue is often not objective, incomplete and very difficult. This also partly limits the Court's ability to apply a fine, because it is not fully proven, in many cases the Court has decided not to impose a fine.
3.2.2. Causes from the work of explaining and guiding the application of the law; inspecting and checking the application of penalties
- One of the important tasks and powers of the Supreme People's Court as stipulated by the Law on Organization of People's Courts is to summarize the Court's trial practices and ensure the consistent application of the law in trials. However, since the 1999 Penal Code came into effect, there has not been any Resolution guiding the application of fines; there are only a few circulars, official dispatches, and directives of the Supreme People's Court providing guidance on fines such as: Official Dispatch No. 213/TANDTC-KHXX dated January 13, 2014 providing guidance on the application of fines, but very sketchy; or Official Dispatch No. 162/2006/KHXX of 2002 guiding on the calculation of interest on late execution of judgments for fines in criminal cases, or Official Dispatch No. 187/2006/KHXX of 2006 guiding on the consideration of exemption from execution of judgments for fines in criminal cases, or Joint Circular No. 12/2015/TTLT-TANDTC-VKSNDTC-BTP-BCA-BTC dated September 15, 2015 of the Supreme People's Court, the Supreme People's Procuracy, the Ministry of Justice, the Ministry of Public Security, the Ministry of Finance (replacing Joint Circular No. 10/2010/TTLT-TANDTC-VKSNDTC-BTP-BCA-BTC dated May 25, 2010 of the Supreme People's Court, the Supreme People's Procuracy, the Ministry of Justice, the Ministry of Public Security, the Ministry of Finance) guiding on exemption and reduction of execution obligations This leads to a lack of awareness among some judges about fines, not seeing the direct and strong effects of fines in the penal system, not being aware of the changes in the criminal policy on penalties of the Party and the State in the current period; some judges even have the idea that fines are just an additional penalty, leading to a lack of interest and often never applying fines in sentencing decisions. This is also one of the reasons affecting the effectiveness of fines in practice.
- Since the 1999 Penal Code until now, there has not been any joint circular between the Ministry of Public Security, the Supreme People's Procuracy, the Supreme People's Court, and the Ministry of Justice on unified guidance on the application and enforcement of fines. This also causes difficulties for the investigation, prosecution, trial, and enforcement of judgments by lower-level prosecution agencies. At the same time, it is easy to lead to arbitrary application, not ensuring
ensure uniformity and uniformity in application, which can lead to incorrect application of the legal nature of fines.
- In the annual summary reports of the Supreme People's Court as well as local courts, they often only present figures on fines achieved, assess the increase or decrease compared to the previous year without any comments, assessments, pointing out shortcomings, limitations and providing solutions or giving directions on increasing the application of fines in adjudication. In my opinion, this is also a limitation and shortcoming in the management, direction and operation of courts at all levels in improving the effectiveness of fines.
- In addition, the direction, inspection and supervision of subordinates by superiors have not been continuous and regular. The work of personnel management, professional management, education, raising political awareness and public responsibility in some Courts is not good, not promptly checking and correcting professional violations or manifestations of non-objectivity and impartiality in the work of Judges and Court staff.
3.2.3. Causes from the subject of law application
Firstly, the capacity and experience of the judges in our country are currently uneven, especially for judges in remote areas with difficult socio-economic conditions who do not have the opportunity to update new legal information or study to improve their qualifications and capacity. Some judges have not actively studied and researched legal regulations; have not mastered the general provisions on fines, and when deciding on penalties, they have not mastered the basic principles and legal bases when deciding on penalties, causing the verdict and penalties in general and fines in particular to be unconvincing, and in many cases, the verdict cannot be enforced.
Second , the shortage of judges in the situation of complex crime, with a tendency to increase sharply, while the authority and work of the Court are increasing in both quantity and demand. This reality, together with the shortage of judges, makes the work of the Courts at all levels increasingly overloaded, and the pressure of work increases. That is also one of the reasons leading to the backlog of cases, errors in law enforcement, limiting the effectiveness of law enforcement.
law in general, the effectiveness of applying fines in particular.
People's assessors participate in first-instance trials in all types of cases, together with independent judges and only obey the law. However, the current level of expertise and legal knowledge of People's assessors is not high, which also significantly affects the quality of trials and decisions on penalties, including fines.
Third, the sense of responsibility and professional competence of some judges is not high. Current practice shows that a number of judges are indifferent, irresponsible in adjudication, have degraded moral qualities, lack awareness of training in work, violate discipline, and fail to fulfill their duties.
Fourth, the mechanism to protect the principle of “independent adjudication and compliance with the law” in our country is still not high, the appointment and reappointment mechanism with short terms of office also more or less affects the psychology and courage of those working in adjudication; the policy of treatment and salary for officials and civil servants of the Court sector in general is still very limited, not commensurate with the specific nature of adjudication activities. The life of law enforcement officers is still very difficult, especially in the current situation of inflation and economic recession. Working conditions and supporting equipment have not really met the requirements... This reality has been affecting the professional activities in terms of qualifications and legal awareness of officials of the Court sector, affecting the quality of law enforcement.
3.2.4. Causes from the subject sentenced to fine and public opinion
In fact, there are many cases where people sentenced to fines have deliberately taken advantage of the imperfection of the positive law on the mechanism and measures for enforcing fines, deliberately dragging their feet, delaying, refusing to enforce fines despite having the conditions for enforcement, even dispersing assets to avoid the obligation to enforce the judgment while the law has no regulations or sanctions on handling the above cases. This more or less affects the subjective mentality of the agency, the person with the authority to apply and decide on the penalty when choosing to apply a fine.
Some people do not fully understand the nature, content, purpose and meaning of fines; there is still the notion that poor people without money must go to jail, while rich people with money do not have to go to jail, causing public confusion.
decreased confidence in the legal validity of the State.
All of the above reasons make the effectiveness of applying fines nationwide in general and in Da Nang city in particular very low, not promoting the role, position and significance of fines in the penal system. The widespread application of fixed-term imprisonment as it is now has created many pressures on society such as: overloading of prisons, reducing the ability to educate and reform prisoners, budget loss, prisoners having difficulty reintegrating into the community... These are the things that require us to have solutions to improve the effectiveness of applying fines in the current context.
3.3. Some solutions to ensure correct application of fines
Based on a systematic and comprehensive study of the provisions of the 1999 Penal Code on fines, through reference to the legislative experience of a number of countries in the world, and through the analysis and synthesis of data, pointing out the existing limitations and causes leading to the ineffectiveness of applying fines, the author of the thesis would like to propose a number of solutions to improve the law on fines as follows:
3.3.1. Perfecting the provisions of positive law on fines
Firstly, to avoid the situation of having many different understandings of fines, lawmakers should add a legal definition of fines to the Penal Code as follows: " A fine is a penalty that forces the convicted person to pay a certain amount of money to the State budget according to the provisions of this Code ".
Second, it is necessary to amend the general provisions on fines in the direction of clearly defining the content and scope of conditions for applying fines in a way that ensures generality, consistency, one-point understanding and ease of application of legal regulations in practice.
- Regarding the scope of application of fines: it is necessary to further expand the scope of application of fines as the main penalty for some serious crimes or very serious crimes where applying fines as the main penalty still achieves the purpose of the penalty without necessarily having to apply more severe sanctions that restrict human freedom. In addition, for some less serious crimes