Characteristics of Criminal Law Application to Juvenile Offenders

- Law enforcement: in which the State, through competent agencies, implements legal provisions; or on its own, based on legal provisions, creates regulations that create, change, suspend or terminate legal relationships.

- Use of law: in which legal entities exercise their legal power to protect their legitimate rights and interests, those of the State and other entities.

- Compliance with the law is a form of law enforcement, however this is a passive implementation of the law, because the subjects will not carry out actions prohibited by law or will only carry out what the law permits.

- Compliance with the law: in which legal entities perform their legal duties through active actions, these are mandatory activities. If not performed, legal entities may be subject to certain sanctions.

Among the forms of law enforcement, which are law application, law use, law compliance and law enforcement, law enforcement is a special form because law enforcement activities always involve the State, through competent State agencies and this is an important form of law enforcement. Through this form, the State's will is implemented in practice, transforming from the provisions of legal documents into the reality of social life. Through this, the State will be able to perform the function of organizing and managing society, ensuring the organization and operation of the State apparatus and civil servants within the legal framework.

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Law enforcement is: "the activity of implementing the law with the nature of state power organization, carried out by competent state agencies, authorities or social organizations empowered by the State, to individualize legal norms in specific cases, for specific individuals and organizations" [ 63].

Associate Professor, Dr. Nguyen Minh Doan commented:

Law enforcement in general is understood as a form of law implementation, in which the State, through state agencies or competent authorities, organizes legal entities to implement legal provisions or, on its own, bases itself on legal provisions to make decisions.

arise, change, suspend or terminate specific legal relationships [19, p.17].

The application of criminal law is carried out in cases where it is necessary to apply State coercive measures, or to apply sanctions to subjects who violate criminal law. For example, a citizen commits an act of theft, which has all the elements constituting the crime of theft of property as prescribed in Article 138 of the 1999 Penal Code. Criminal liability does not automatically arise immediately after that and the violator voluntarily complies with appropriate sanctions. Therefore, it is necessary to have the activities of competent agencies and persons to investigate, prosecute, try and compare with the provisions of the law to determine criminal liability for the person who committed the violation and force this person to comply.

Thus: Applying criminal law to juvenile offenders is the activity of applying the provisions of criminal law to resolve the issue of criminal responsibility of juvenile offenders carried out by the Investigation Agency, the Procuracy, and the Court.

1.1.3. Characteristics of applying criminal law to juvenile offenders

Firstly , applying criminal law to juvenile offenders is an activity of state power. This characteristic is shown in the following aspects:

- Applying criminal law to juvenile offenders is an activity carried out by competent entities within the scope of their duties and powers. This activity is carried out by prosecution agencies including investigation agencies, prosecutors, and courts. These agencies, on behalf of the State, carry out activities of initiating, investigating, prosecuting, and trying juvenile offenders.

- The application of criminal law to juvenile offenders is considered a continued expression of the state's will in the process of adjusting the law. Therefore, the application of the law must not only be consistent with the positive law but also with the state's policies and guidelines in each specific period.

- In some cases, the application of criminal law to minors who commit crimes can be carried out according to the unilateral will of competent authorities, regardless of the will of the subject of the law being applied, which is the minor who commits the crime.

- Application of criminal law to minors who commit crimes is mandatory for the subject of application, which is the minor who commits the crime and related subjects.

Second , the application of criminal law to juvenile offenders is an activity that must comply with strict forms and procedures prescribed by law. The application of criminal law to juvenile offenders by prosecution agencies must comply with the provisions on order, procedures, and authority prescribed by criminal procedure law.

Third , the application of criminal law to juvenile offenders is an individual and specific regulatory activity for certain social relations. Similar to the application of law or the application of criminal law in general, the application of criminal law is carried out for each specific case of juvenile offenders.

Fourth , the application of criminal law is an activity that requires creativity within the scope of the law. Associated with the third characteristic of the application of criminal law to juvenile offenders is the application of the law to each individual crime case. Therefore, the person applying criminal law must creatively apply the provisions of the corresponding criminal law to determine the crime and apply criminal responsibility to the juvenile who commits a specific crime.

Fifth, applying criminal law to juvenile offenders requires legal knowledge, understanding of psychology and personality in order to educate and help them correct their mistakes, develop healthily and become useful citizens to society.

Sixth, the penalties applied by criminal law to minors are also a form of criminal responsibility and are only applied when there is a crime committed by

Juvenile offenders are subject to lighter penalties than adult offenders. The only authority competent to apply the law to juvenile offenders is the Court; Punishments are only applied to juveniles who have committed socially dangerous acts that the Penal Code defines as crimes.

1.2. Legal basis for applying criminal law to minors who commit crimes

In Article 68, Chapter X: Provisions for juvenile offenders, the 1999 Penal Code stipulates: “Juveniles from 14 to under 18 years of age who commit crimes shall bear criminal responsibility according to the provisions of this Chapter, and at the same time according to the provisions of the General Parts of the Code that are not contrary to the provisions of this Chapter” [ 37]. Thus, the legal basis for the application of criminal law to juvenile offenders is the entire provision of criminal law for juvenile offenders. Those provisions can be divided into two groups: provisions on crimes and provisions on criminal responsibility.

1.2.1. Crime regulations

The legal basis for determining the crime of a minor who commits a crime is the provisions on crimes (in the general part and the part of crimes) which are generally prescribed for both adults and minors who commit crimes. The provisions in the general part of the Penal Code that create the legal basis for determining the crime of a minor who commits a crime are the provisions that allow the determination of crimes such as the concept of crime, classification of crimes, age of criminal responsibility, criminal responsibility capacity, fault, stage of crime, accomplices, etc. The provisions in the part of crimes of the Penal Code on the composition of crimes are the direct legal basis for determining the crime of a minor who commits a crime. The provisions on crimes that serve as the legal basis for applying the law to minors who commit crimes are basically the provisions to determine crimes that are generally applied to all subjects who commit crimes. Therefore, it can be said that the prosecution agency applies the provisions on general crimes when applying criminal law to minors who commit crimes. Based on this general legal basis, the application of criminal law to convict minors who commit crimes is not

different from the application of criminal law to adult offenders.

1.2.2. Regulations on criminal liability of minors who commit crimes

Based on the Party and State's guidelines for mobilizing and educating young people, on the psychological and physiological characteristics of minors, and on the basis of practical experience in the fight against crimes committed by minors, as well as the basic principles of Vietnamese criminal law, lawmakers have comprehensively and consistently stipulated basic principles that are guiding and consistent throughout the process of handling juvenile offenders. Therefore, Article 68 of the 1999 Penal Code stipulates: "Juveniles from 14 to under 16 years of age who commit crimes 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]. According to the above law, in principle, when resolving the issue of criminal liability of minors who commit crimes, it is necessary to first base on the provisions of Chapter X General Part, and at the same time, apply other provisions of the Penal Code such as: Basis of criminal liability, principles of handling, provisions on crimes and penalties, on judicial measures, decision on penalties... but when applying those provisions, it must not be contrary to the provisions of Chapter X of this Penal Code.

In addition, like the 1985 Penal Code, the 1999 Penal Code distinguishes criminal responsibility between juveniles who commit crimes at two ages: from 14 to under 16 years old and from 16 to under 18 years old. In principle, juveniles who commit crimes from 14 to under 16 years old are only criminally responsible for very serious intentional crimes or especially serious crimes, while those from 16 years old are criminally responsible for all crimes they commit (Article 12 of the Penal Code).

However, according to the provisions of the 1999 Penal Code, the crimes for which minors must bear criminal responsibility are quite broad and, more importantly, these provisions are not clear and transparent, so the minors themselves cannot or find it difficult to know exactly when their behavior is considered a crime. In reality, cases where minors from 14 to under 16 years old commit crimes on their own are very serious.

The number of serious crimes committed intentionally or particularly serious crimes is not much and mainly focuses on a number of crimes in the group of crimes against human life, health, honor, dignity; crimes against property, the remaining majority of other cases where children participate in committing crimes are instigated, enticed, bribed, threatened by adults... They themselves do not fully perceive the nature and level of danger of the type of crime they have committed. Therefore, criminal handling of minors in these cases is somewhat too strict and has little effect on education, prevention, helping them realize and correct their own mistakes.

The 2015 Penal Code (not yet in legal effect) has made strong adjustments to the criminal policy for people under 18 who commit crimes in the direction of ensuring their best interests in the spirit of ensuring the requirements of fighting and preventing crimes among adolescents. The 2015 Penal Code uses the term "people under 18 who commit crimes" (not the term "minors"). In principle, the trial of people under 18 must be considered and not treated as full adults and must comply with the provisions of the criminal law.

Inheriting the provisions of the 1999 Penal Code, the 2015 Penal Code further specifies the specific crimes for which minors from 14 to under 16 years old must bear criminal responsibility. Accordingly, they must only bear criminal responsibility for committing 29 crimes out of 314 crimes prescribed in the Penal Code belonging to 04 groups of crimes: (1) Crimes against human life, health, honor, and dignity; (2) Crimes against property; (3) Drug crimes; (4) Crimes against public safety. In addition, they must only bear criminal responsibility for the act of preparing to commit 04 crimes out of 314 crimes prescribed in the Penal Code. These are the crimes: murder; intentionally causing injury or harm to the health of others; robbery; kidnapping for the purpose of appropriating property. Thus, it can be seen that, based on the consideration of the nature, seriousness and prevalence of crimes committed by people from 14 to under 16 years old in the past as well as the forecast for the coming time to thoroughly implement the criminal policy of the Vietnamese State, the 2015 Penal Code has determined the group of crimes for which minors of this age must bear criminal responsibility (including cases of preparing to commit a crime) mainly focusing on

crimes against human life, health and public safety (Clause 2, Article 12, Penal Code 2015) [ 43, p.38].

For people aged 16 and over, the 2015 Penal Code stipulates that minors must bear criminal responsibility for the act of preparing to commit 21 crimes out of 314 crimes stipulated in the Penal Code belonging to 04 groups of crimes (crimes against national security; crimes against human life, health, honor, and dignity; crimes against property and crimes against public safety).

Regulations on principles of criminal handling of juvenile offenders are an important legal basis for the application of criminal law to juvenile offenders.

Article 69 of the 1999 Penal Code and currently Article 91 of the 2015 Penal Code (not yet in effect) both stipulate that the handling of juvenile offenders must comply with certain principles:

The first principle - the handling of juvenile offenders is mainly aimed at educating and helping them correct their mistakes, develop healthily and become useful citizens to society . In investigating, prosecuting and trying juvenile crimes, competent state agencies must determine their ability to perceive the social danger of their crimes, the causes and conditions that cause the crime. When juveniles commit crimes, criminal justice agencies must accurately determine the nature and level of danger to society of their crimes. In addition, it is necessary to clarify the causes and conditions that cause the crime in order to help juveniles recognize their mistakes and correct them to become useful citizens to their families and society in the future. When knowing the causes and conditions of crime - at this time, law enforcement agencies can take measures to eliminate both the causes and conditions of crime from the criminals themselves as well as from the social environment, thereby contributing to the fight against crimes committed by minors, as well as having criminal policies applied to them when handling them.

Second principle - a minor may be exempted from criminal liability if he or she commits a less serious crime or a serious crime, causes little harm, has many mitigating circumstances and is supervised by his or her family or an agency or organization.

education . This is a principle that shows special leniency and humanity - exemption from criminal liability for minors who commit crimes and belong to the criminal liability exemption regime. The provision in the Vietnamese Penal Code of this regime demonstrates the correct motto of the criminal handling policy, - ensuring a harmonious combination between the most severe criminal enforcement measures of the State and other social impact measures to reform and educate criminals, thereby limiting the application of criminal repression (punishment) measures.

Along with 08 other cases of exemption from criminal liability (Article 19, Article 25, Clause 3, Article 80, Paragraph 2, Clause 6, Article 289, Clause 6, Article 290 and Clause 3, Article 314), the legislators have divided the Penal Code into mandatory and optional cases of exemption from criminal liability. As an optional case , the application or non-application of exemption from criminal liability depends on the decision of competent criminal justice agencies depending on the corresponding stage of criminal proceedings, based on the actual situation of the case, on the requirements of the fight against crime, on the ability to reform and educate juvenile offenders in a normal social environment with the education and supervision of the family or the corresponding competent agency or organization, as well as the personal background of the juvenile offender himself. Thus, the specific conditions that can be exempted from criminal liability include:

First , the offender is a minor. The concept of “ juvenile offender ” includes those aged 14 and over but under 18 who commit socially dangerous acts as prescribed in the Penal Code.

Second , the crime committed by a minor must be a less serious crime or a serious crime that does not cause great harm. Accordingly, the 1999 Penal Code provides more favorable regulations for minors who commit crimes, making the scope of minors who can be exempted from criminal liability wider than the 1985 Penal Code. In addition, this condition also includes a requirement that the crime must not cause great harm.

Third , minors must have many mitigating circumstances for criminal liability. Mitigating circumstances for criminal liability is a legal category set forth to determine

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