By this measure, QTHL shows that the awareness of crime prevention must start from those who have leadership, management or judicial roles. More than anyone else, they are the ones who maintain and protect the discipline of the law, but if they themselves violate it, it will bring unpredictable disasters to the state, society and people. Whether justice is enforced or not, whether the state's regime and policies reach the people or not all depend on the state's officials, so the law needs to clearly stipulate not only the rights but also the obligations of those who enforce the law to minimize their abuse of power in order to prevent disasters for the people.
- Lenient criminal policy:
QTHL does not apply punishment to children under 15 years old, the elderly, the disabled, or pregnant women. For women, in general, the punishment is lighter than for men who commit the same crime. Those who commit a crime by mistake, or who confess to the victim or to a state official, will have their sentence reduced or pardoned.
3.2. Contents demonstrating the humanistic and progressive values of the National Dynasty Penal Code
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The QTHL contains many values that demonstrate the level of social civilization and legislative thought of our ancestors in the 15th century. Except for some laws that are meant to protect the monarchy's power as well as the status of the ruling class, the other laws of the QTHL all contain certain values that need to be considered and studied for inheritance in modern society.
During the early Le Dynasty, Confucianism held a unique position, so the consistent viewpoint for enacting laws always institutionalized Confucian views:
"To bring peace to the world is to govern one's own country" means that if one wants peace in the world, one must govern one's own country well.
If the superiors are filial to their parents, then among the people there will definitely arise a custom of filial piety...
If the superiors truly pity the orphans and widows, then the people will also pity the orphans and widows. Therefore, the gentleman must firmly grasp this principle of “following the rules” [25, p.31].
This viewpoint shows that the goal of the early Le Dynasty's law-making was to pay great attention to people, to build a society in which people were always protected and enjoyed the fruits of politics. Thoroughly understanding this viewpoint, the legislators of the early Le Dynasty issued strict regulations for many types of crimes, but paid special attention to crimes that violated national security, social order and feudal family order, demonstrating love for people and the desire to build a unified and prosperous state.
QTHL (722 articles, 13 chapters) was built to imitate the structure of ancient Chinese law codes. Compared with the Tang Dynasty's Tang Dynasty's Tang Dynasty Law Code (502 articles, 12 chapters) and the Ming Dynasty Law Code (460 articles), it can be seen that there is a clear advantage in the number of chapters and articles in QTHL, the arrangement and naming of chapters between the codes are also different. The research results of domestic and foreign authors all acknowledge that up to 456/722 articles of QTHL are the only provisions in Vietnam without being copied or borrowed from foreign countries.
National Dynasty Penal Code Tang Code Memorial Chapter 1. Famous Rules Chapter 1. Famous Rules Chapter 2. Forbidden Guard Chapter 2. Forbidden Guard
Chapter 3. Microsystems Chapter 3. Administrative regulations Chapter 4. Military politics Chapter 4. Marriage
Chapter 5. Marriage Chapter 5. State stables and treasury
Chapter 6. Land Property Chapter 6. Unauthorized Labor Mobilization Chapter 7. Adultery Chapter 7. Banditry
Chapter 8. Thieves Chapter 8. Litigation Chapter 9. Litigation Chapter 9. Deception Chapter 10. Deception Chapter 10. Miscellaneous Laws Chapter 11. Miscellaneous Laws Chapter 11. Ministry of Death
Chapter 12. The Death Chapter 12. The Prison Chapter 13. The Prison
The Tang Code was the code most consulted by the early Le Dynasty. This comparison shows that, apart from chapter 3: Vi Che; chapter 4: Quan Chinh; chapter 6: Dien San; chapter 7: Thong Gian; the remaining chapters of the QTHL are similar to the chapters in the Tang Code. This shows that Dai Viet legislators absorbed the essence of foreign law and also relied on practical factors of domestic social life to build laws. According to Insun Yu, the QTHL has "261 articles borrowed from the Tang Code and 53 articles from the Ming Code" [30, p.72]. The Le Dynasty legislators absorbed Chinese law in areas such as court rituals, family, criminal, and administrative.
In the field of court and family rituals, the Le Dynasty law borrowed quite a lot from Chinese law: Chapter Vi Che (Articles 104, 105, 106, 108, 109) stipulates that officials must strictly perform sacrificial rituals in the court; (Articles 114, 118, 125, 126, 135, 136) stipulates punishment for disrespectful acts towards the king in order to protect the supreme privilege of the royal family as well as promote royal power. Chapter Marriage (Articles 2, 39, 130, 310, 317, 408, 477, 478, 481, 483, 484, 504, 506, 511) stipulates
Specify the severe punishment of violations of feudal order, promote filial piety of children and grandchildren towards grandparents and parents; promote patriarchy
as well as the role of men in the family, strengthening the husband's position in the marital relationship.
In the criminal field, the Le Dynasty law borrowed from Chinese law the regulations on the five punishments, eight rules, and ten evils of the Tang Dynasty. The principles of pardon and exemption from criminal liability when confessing (articles 18, 19, 20); the principle of consideration (articles 4, 5, 6, 7, 17); the principle of concealing crimes between relatives (39, 504)... In addition to the provisions on the five punishments and general issues in the Danh le chapter, the remaining provisions on criminal matters were distributed by the Le Dynasty legislators in the chapters on Guards, Vi che, Quan chinh, Dao tac, Tra nguy, Bo vong, Doan nguc, with the main content being to promote the Confucian ideology of loyalty to the king, to establish and consolidate the feudal order. Crimes that infringe upon the life, health, position, and power of the king, and those that infringe upon the life and health of people in noble families with high status were all punished more severely than normal crimes. In addition, QTHL also adopted Song Dynasty law with punishments such as tattooing and cutting flesh (lingchi). These two punishments did not exist in Tang and Ming law, but they were present in Song law and in Vietnamese law during the Ly and Tran dynasties.
In the administrative field, the QTHL in the chapters on Vi Che, Ho Ma, Dien San received regulations on the civil service regime, household registration and land management from the laws of the Tang and Ming dynasties. Officials must fulfill their duties in the positions assigned by the king (articles 121, 174, 326) and must maintain integrity to wholeheartedly serve the people and the country, meet the people's expectations and the king's trust (article 138)... The State will severely punish acts of deliberately hiding public land, encroaching on public land, hiding people... in order to maximize agricultural production and ensure state revenue (articles 342, 343, 345).
Pointing out that there are 261 articles borrowed from the Tang Dynasty Code and 53 articles from the Ming Dynasty Code in the QTHL is not intended to criticize mechanical copying.
The Le Dynasty legislators' hooks show that these are relatively stable criteria of the feudal monarchy. Any feudal monarchy that applies Confucianism also has these regulations to protect the interests of the Royal Family and the feudal regime. However, with nearly 500 laws in the QTHL alone, it shows the great creativity of the Le Dynasty legislators, quite different from the Nguyen Dynasty legislators who nearly 400 years later applied almost the entire Manchu law without any significant creativity. The thesis will discuss the content of the QTHL in the following areas:
3.2.1. In the criminal field
Crime and punishment are two central issues in the legislative activities of every dynasty. Because there is no distinction between specific branches of law, all feudal codes are criminal in nature but regulate all social relations including criminal, civil, administrative... and have corresponding sanctions attached but mainly criminal sanctions. QTHL is also part of the general rules of feudal codes, which clearly shows the views and attitudes of lawmakers on handling crimes through the application of penalties. QTHL is structured into 2 parts: General part (chapter of Nomenclature) and specific part (crimes). The general part shows the principles and is specified in the section on crimes. The general part stipulates the following issues: ten evil crimes, the system of punishment, criminal policy (eight crimes, the elderly, the disabled, children, women), many people committing the same crime, one person committing many crimes, intentional and unintentional mistakes, and criminal liability on behalf of others.
- About punishment
The main punishment system used in QTHL is the classical five punishments including xuy, truong, do, luu, and tu . The five punishments are conceived as five main punishments, applied to all violations, depending on the level of danger.
behavior. The main punishment (xuy, truong) can become a secondary punishment when it is applied with another main punishment (do, lu, tu). In addition to the five punishments, QTHL also stipulates a number of other secondary punishments applied with the five punishments such as: demotion, fine, confiscation of property, tattooing on the neck or face, conscripting wife and children into slavery...
In the policy of handling crimes, the penal system of the QTHL has shown the differentiation between male and female criminals: corporal punishment “…only men must suffer” [64, p.33] and whipping (flogging) is applied to both male and female criminals but mainly to women. The clear distinction between the subjects of corporal punishment shows a much more progressive character compared to the Hoang Viet Law of the Nguyen Dynasty, which was born nearly 400 years later. In which, female criminals are still subject to corporal punishment, although the scope of application is limited.
The punishment (hard labor) consists of 3 levels, depending on the heavy work the prisoner must do, each level is different for men and women. The first level is dich dinh and dich phu (both men and women must do heavy service work), male offenders are beaten with 80 lashes, female offenders are only beaten with 50 lashes. The second level is tuong phuong binh (elephant stable cleaner) and suy that ti (female servants in the house who cook rice), male offenders are beaten with 80 lashes, 2 characters are branded on the neck; female offenders are beaten with 50 lashes, 2 characters are branded on the neck. The third level is chung dien binh (plantation soldier) and thung that ti (female servants who pound rice), male offenders are beaten with 80 lashes, 4 characters are branded on the neck, shackled, exiled to Dien Chau to exploit the plantation, female offenders are beaten with 50 lashes, 4 characters are branded on the neck to be servants pounding rice.
The clear regulation of the work to be done and the punishment to be suffered as above is a progressive point of QTHL. This content is not included in the Tang Law So Nghi - the law code that the Le Dynasty legislators mainly referred to when promulgating QTHL with 5 levels: 1 year, 1.5 years, 2 years, 2.5 years, 3 years and does not clearly state what specific work the offender must do. In Hoang Viet
The Nguyen Dynasty's laws copied the original provisions of the Qing Dynasty's laws, including 5 categories similar to the Tang Dynasty's laws, but with 60 to 100 lashes.
Liu Xing (exile) is a punishment prescribed to be applied with xuy, truong, tattooing or wearing shackles. There are 3 levels of exile: Liu Can Chau (Nghe An); Liu Ngoai Chau (Bo Chinh); Liu Vien Chau (Cao Bang). In which, in the near Chau, men are beaten 90 times with sticks, have 6 characters tattooed on their faces, are forced to wear shackles, and are exiled to Nghe An to do hard labor; women are beaten 50 times with sticks, have 6 characters tattooed on their faces, do not have to wear shackles, and are forced to do hard labor. Meanwhile, Tang Dynasty law is divided into 3 levels: exile for 2000 li, 2500 li, 3000 li. Regarding the ten evil crimes, there are also different regulations between Tang Law and Le Law. The crime of unfilial piety in Chinese law is defined as the act of separating household registration and property from the parents' family, and is punishable by 3 years of imprisonment (Tang law) or 100 strokes of the cane (Ming law), but in Le dynasty law, this act is not considered a crime of unfilial piety, when the child has reached adulthood, he can be allowed by his parents to live separately.
In the legislative history of our country, until the 15th century, there was no ideological movement that stood up to defend women's rights or fight for gender equality, and this period was also the period when Confucianism developed to an unprecedented peak in the feudal history of Vietnam. Confucianism was the only religion, the concept of "one man is worth ten women" became a common way of thinking in community life. However, based on the perception of the position and role of human beings, the Le dynasty legislators realized that women had biological characteristics that were very different from men, they had the natural role of being mothers and wives, were gentle and delicate, so they needed to be more favored, so the legislators clearly defined the policy of applying lighter penalties for women.
In the penal system of the QTHL, the penalties of demotion, fines, and monetary redemption are also accepted. Fines are prescribed to be applied both
used independently, and can also be applied together with the main punishment. Fines have 3 levels: level 1 from 300 to 500 quan, level 2 from 60 to 200 quan, level 3 from 5 to 50 quan. This is a creative point of the legislators of the early Le dynasty because the law of the Tang dynasty did not stipulate a fine. In particular, the QTHL always fixed the fine (Article 188): "Those who gather to gamble will be punished with 70 lashes, demoted to 3 classes, and fined 3 quan." This regulation shows that the judge does not have the opportunity to arbitrarily adjust the fine level for the prisoner, so the rule of law is guaranteed.
The punishment of redemption (allowing to redeem crimes with money) is a progressive value of the QTHL because the nature of redemption is a measure to exempt criminals from serving their sentences. Redemption originated from the Tang Dynasty law and was adopted and applied by the Early Le Dynasty, according to which the QTHL allowed redemption for all crimes with penalties from exile down, being punished with caning and tattooing.
The humanistic value of the penal system in international law is reflected in the general principles when applying penalties such as:
- Consideration : Those who are considered for consideration when committing a crime and are subject to a sentence of imprisonment or lower will have their sentence reduced by one level (not applicable to the ten evil crimes). Those who benefit from this principle must belong to the Eight Nghi - eight cases that are considered for a reduction of their sentence, including Nghi Hien : a person with great virtue; Nghi Nang : a person with great talent; Nghi Cong : a person with great merit; Nghi Can : a person who is diligent in work. Some provisions of the Eight Nghi under the perspective of current criminal law are mitigating circumstances for the offender, in which Nghi Cong and Nghi Can are similar to Point s, Clause 1, Article 46 on Mitigating circumstances of criminal responsibility of the 1999 Penal Code: "The offender is a person with outstanding achievements in production, combat, study or work." And Nghi Hien is similar to the handling principle in Clause 3, Article 3 of the 1999 Penal Code "For first-time offenders