HANOI NATIONAL UNIVERSITY
FACULTY OF LAW
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NGO THANH SON
COMPULSORY MEDICAL TREATMENT MEASURES IN VIETNAMESE CRIMINAL LAW
(Based on data from Ho Chi Minh City)
Major : Criminal law and criminal procedure
Code : 60 38 01 04
MASTER'S THESIS IN LAW
Scientific advisor : Prof. Dr. LE VAN CAM
HANOI - 2013
COMMITMENT
I hereby declare that this Thesis is my own research work. The results stated in this Thesis have not been published in any other work. The figures, examples and quotations in this Thesis ensure accuracy, reliability and honesty. I have completed all subjects and paid all financial obligations as prescribed by the Faculty of Law, Vietnam National University, Hanoi.
So I write this Declaration to request the Faculty of Law to consider so that I can defend my Thesis.
Thank you very much!
GUARANTEE
Ngo Thanh Son
INDEX
Cover Page Pledge Table of Contents
List of abbreviations
INTRODUCTION 1
Chapter 1 : SOME THEORETICAL ISSUES ON COMPULSORY MEDICAL TREATMENT MEASURES ACCORDING TO VIETNAMESE CRIMINAL CODE 7
1.1. Some features of the issue of criminal responsibility capacity of the subject of
crime in criminal law 8
1.1.1. State of lack of criminal responsibility 10
1.1.2 Limited criminal liability 16
1.1.3. Criminal liability capacity in a state of intoxication due to alcohol or other strong stimulants 18
1.2. Concept and basic characteristics of compulsory medical treatment measures in criminal law 19
1.2.1. Concept of compulsory medical treatment in criminal law 19
1.2.2. Basic characteristics of compulsory medical treatment measures in criminal law 21
1.3. Brief overview of regulations on compulsory medical treatment measures in the history of Vietnamese criminal legislation from after the August Revolution in 1945 to
before the promulgation of our country's 1999 Penal Code 27
1.3.1. The period from after the August Revolution of 1945 to before the promulgation of the Decree
Criminal Code 1985 27
1.3.2. The period from after the promulgation of the 1985 Penal Code to before
promulgation of the 1999 Penal Code of our country 28
1.4. Relevant provisions on compulsory medical treatment in criminal law of some countries in the world 29
Chapter 2 : PROVISIONS OF CURRENT VIETNAMESE CRIMINAL LAW ON COMPULSORY MEDICAL TREATMENT MEASURES. DISTINGUISHING COMPULSORY MEDICAL TREATMENT MEASURES FROM OTHER CRIMINAL AND NON-CRIMINAL LEGAL SANCTIONS 32
2.1. Overview of current Vietnamese criminal law provisions on criminal responsibility capacity 32
2.2. Provisions of current Vietnamese criminal law on measures
compulsory treatment 41
2.3. Distinguishing compulsory medical treatment measures in criminal law
with other criminal and non-criminal legal sanctions 53
2.3.1. With penalty 54
2.3.2. With administrative sanctions 58
Chapter 3 : PRACTICAL APPLICATION OF COMPULSORY MEDICAL TREATMENT MEASURES IN HO CHI MINH CITY. IMPROVING THE LAW AND SOLUTIONS TO IMPROVE THE EFFECTIVENESS OF APPLYING PROVISIONS OF VIETNAM'S CRIMINAL LAW
ON COMPULSORY MEDICAL TREATMENT MEASURES 61
3.1. Practical application of compulsory medical treatment measures in the current Vietnamese Penal Code by prosecution agencies in Ho Chi Minh City from 2007 to 2012 61
3.2. Perfecting some provisions of criminal law on measures
compulsory treatment 77
3.2.1. On legislation 77
3.2.2. In practice 80
3.3. Some solutions to improve the effectiveness of regulations application
on compulsory medical treatment 82
CONCLUSION 86
LIST OF REFERENCES 89
LIST OF ABBREVIATIONS
BLHS: Criminal Code
BPBBCB: Compulsory medical treatment
CSĐT: Police Investigation Socialist Republic: Socialist Republic
LXLVPHC: Law on handling administrative violations NLTNHS: Criminal responsibility capacity
PLHS: Criminal Law
PLXLVPHC: Ordinance on handling administrative violations No.: Serial number
TAND: People's Court
Supreme People's Court: Supreme People's Court
TTLT: Joint Circular
THA: Execution of judgment
TNHS: Criminal responsibility
VKS: Procuracy
VKSND: People's Procuracy VKSNDTC: Supreme People's Procuracy
INTRODUCTION
1. Reason for choosing the topic
In the current stage of building a rule-of-law state and judicial reform in Vietnam, one of the goals set forth and expressed throughout the legislative process in general and the legislative process in the field of criminal justice in particular is to proactively prevent and resolutely fight against crime, punish, educate, reform criminals, and transform them into useful citizens for society, in which education and crime prevention are the main objectives. Research to propose legal mechanisms to both effectively fight against and prevent crime and ensure the rights and freedoms of people and citizens in practice through coercive measures of the criminal justice system is not only a basic task of legislative activities, but also an important research direction of our country's legal science. Because, with their functions, the coercive measures of the criminal justice system are practically related to a number of basic rights of citizens - to the most noble social values generally recognized in a highly humane society [43, p.3], and at the same time, based on that, it allows to assess the level of democracy and rule of law in any country. Among those coercive measures of the criminal justice system, the compulsory medical treatment measure, hereinafter referred to as the compulsory medical treatment measure (BPBBCB) in the Penal Code, has a very important function. As an independent institution, BPBBCB has been recognized by our country's lawmakers in Articles 43 and 44 of the 1999 Penal Code.
The regulation of BPBBCB in criminal law demonstrates the correct motto in implementing our country's criminal policy, which is to make maximum and synchronous use of all measures to influence the education of criminals. Punishment is not the only means and tool in the fight against crime. All criminal enforcement measures also aim to educate criminals and prevent crime, contributing to improving the effectiveness of criminal impact on crime.
In the practice of fighting against crime in our country in recent times, it has been shown that, due to various subjective and objective reasons, the current Vietnamese Penal Code in general and the BPBBCB institution in particular have revealed certain shortcomings in performing their functions. Therefore, currently, to ensure the synchronous operation of the criminal justice system to achieve high efficiency in the fight against crime, continuing to study this institution in a synchronous and systematic manner is an important and necessary task.
2. Research status of the topic
In the context of the lack of research articles related to BPBBCB in Vietnamese criminal law, most of which only mention in general terms or only analyze a few aspects of the problem, the authorities seem to have neglected the work of synthesizing and compiling statistics on the application of BPBBCB. On the other hand, in the process of collecting data related to the topic, when the author contacted the authorities to access and collect data, he received the following responses: i) Courts, Procuracies: these are data that are not included in the statistical indicators of the industry, so they cannot be provided; ii) Southern Forensic Psychiatric Institute (Bien Hoa - Dong Nai): these are data that are limited to provide (the Institute only provides to relevant authorities upon request) and for individuals like the author, they are not provided. For these reasons, the author encountered many difficulties in the process of implementing the topic, especially in studying the practical application. During the research process, the author did not find any documents or publications that specifically researched the issue of "Compulsory medical treatment measures in Vietnamese criminal law". The research of Vietnamese researchers and scholars related to the compulsory medical treatment measures in Vietnamese criminal law is only research from the perspective of interpretation, general commentary on the compulsory medical treatment measures in the general research work on judicial measures under Vietnamese criminal law such as: "The current status of criminal law provisions on judicial measures. Practical application and some proposals" [52] or just repeating the provisions of the law
for the regulation on compulsory medical treatment in the Vietnamese Penal Code such as: "Judicial measures in the Vietnamese Penal Code and the issue of protecting human rights" [24]. Or just analyze a few aspects of this measure, for example "Discussing the application of compulsory medical treatment measures" [41] or "On compulsory medical treatment and shortcomings that need to be overcome" [18]. The comprehensive study of compulsory medical treatment in Vietnamese criminal law from the perspective of the provisions of the 1999 Vietnamese Penal Code and the practice of applying this measure by the prosecution agencies in recent years in a specific area - Ho Chi Minh City has not been carried out through the above research works. In addition, the author also referred to some provisions of the Criminal Law of some countries related to the provisions on BPBBCB such as: Russia, China, France, Spain, Sweden, Germany. Therefore, it can be affirmed that the topic "Compulsory judicial measures for medical treatment in Vietnamese criminal law" is new and scientific for a master's thesis.
3. Research purpose and research objects
To provide an overview of the content, role and significance of the provisions on "Compulsory medical treatment measures in Vietnamese criminal law", the author will study according to the approach of the comparative method of the provisions related to compulsory medical treatment with other criminal and non-criminal legal sanctions; compulsory medical treatment in the 1999 Vietnamese Criminal Code is the main research subject of the author, the provisions of some countries will also be studied by the author but only at the level of reference and illustration. In detail, within the scope of the topic, the author will focus on studying three contents:
(i) Theoretical issues on BPBBCB according to Vietnamese criminal law: With this content, the author focuses on clarifying the concept of BPBBCB, the content of regulations related to BPBBCB in Vietnamese criminal law, and the theoretical basis for this issue of the Vietnamese Penal Code.
(ii) Practical application of BPBBCB in the 1999 Vietnamese Penal Code: In this content, the author aims to study the application of BPBBCB in the fight against crime in the current period.