Sexual intercourse between people of direct bloodline, between siblings, between half-siblings or half-siblings is the agreement and consent of both people; if one of the two people is forced or coerced, the person who commits the act of coercion or rape does not commit incest, but depending on the specific case, the person who commits the act of coercion or rape will be prosecuted for criminal responsibility for rape or sexual assault.
Trial practice shows that in many cases, if based only on the victim's testimony, the prosecuting agencies mistakenly think that it is only an act of incest, but when considered comprehensively, it is not voluntary, but the act of allowing one's relatives to have sex is due to coercion or duress. For example: Pham Van C is a person who is often drunk and each time he beats his wife and children. One time, C came home drunk and did not see his wife at home, C went into his daughter's room to demand sex. Because he was afraid that his father would beat him, C's daughter reluctantly let C have sex, but was caught red-handed by C's wife. After committing the crime, C controlled his daughter and forced her to confess that she had consensual sex with C.
b. Consequences
The consequences of incest are damages caused by sexual intercourse between people of direct bloodline; between siblings; between half-siblings or half-siblings. These damages are mainly damages to the life, health, dignity, and honor of the offender. In addition, incest also causes mental damage to the offender's relatives, and at the same time causes damage to society in terms of good customs, cultural traditions, and national ethics.
However, the consequences of incest are not a mandatory sign of the crime, no matter what the consequences are, the crime is completed from the moment the two people have sexual intercourse.
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4. Subjective signs of crime
The offender committed the act.
Incest is intentional
meaning, person
The crime of knowing that the person with whom one has sexual intercourse is a blood relative, a sibling, a half-sibling, or a half-sibling, but still having sexual intercourse.
If due to mistake, not knowing that the person you have sexual intercourse with is a blood relative, a sibling, half-sibling or half-sibling, then it is not considered incest.
B. SPECIFIC CRIMINAL CASES
Article 150 only stipulates one crime, the offender is sentenced to imprisonment from six months to five years, which is a serious crime.
When deciding on the punishment for incest offenders under Article 150 of the Penal Code, the Court must also base itself on the provisions on decisions.
penalties in Chapter VII of the Penal Code (from Article 45 to Article 54). If
The offender has many mitigating circumstances and no aggravating circumstances, then
The court may apply a sentence below the lowest level of the penalty range (less than 6 months in prison) or a suspended sentence if the conditions specified in Article 60 of the Penal Code are met; if the offender has many aggravating circumstances, no or few mitigating circumstances, and causes serious consequences, he or she may be sentenced to up to five years in prison.
6. CRIME OF ABUSE OR TORTURE OF GRANDPARENTS, PARENTS, WIFE
HUSBAND, CHILDREN, GRANDCHILDREN, THE PERSON WHO RAISED YOU
Article 151. Crime of mistreating or torturing grandparents, parents, spouses, children, grandchildren, or people who have raised one
Anyone who mistreats or tortures grandparents, parents, spouses, children, grandchildren or people who have raised them, causing serious consequences, or who has been administratively sanctioned for this act but still commits the violation, shall be subject to a warning, non-custodial reform for up to three years or imprisonment from three months to three years.
Definition : The crime of mistreating or torturing grandparents, parents, spouses, children, grandchildren, or people who have raised you is the act of mistreating or torturing grandparents, parents, spouses, children, grandchildren, or people who have raised you, causing serious consequences or having been administratively punished for this act but still committing the violation.
Article 151 of the Penal Code stipulates two crimes, which are abuse and torture, but against many different subjects such as grandparents, parents, spouses, children, grandchildren, and people who have raised the person who committed the abuse. This is a crime that stipulates many different acts with many different subjects being violated, but due to the same nature and level of danger, the legislator stipulates them all in the same article.
Therefore, depending on each specific case, the crime is determined accordingly. If there is only abuse, the crime is abuse; if there is only torture, the crime is torture; if there are both abuse and torture, the crime is both abuse and torture without using the word "or". The crime is determined according to the violated object. For example: Abusing grandparents, the crime is abused grandparents without defining the full crime name as prescribed by law; if the offender only tortures his wife, the crime is only torture of the wife without defining the crime of abusing a spouse...
The crime of mistreating or torturing grandparents, parents, spouses, children, grandchildren, or people who have raised you is a crime that has been stipulated in Article 147 of the 1985 Penal Code. However, Article 147 of the 1985 Penal Code has not yet stipulated the subjects of the violation such as: grandparents, grandchildren, or people who have raised you. Now, Article 151 of the 1999 Penal Code stipulates that if the above subjects are mistreated or tortured, the person who mistreats or is tortured will also be prosecuted for criminal responsibility for the crime of mistreating or torturing grandparents, grandchildren, or people who have raised you.
In addition to specifying a number of subjects of violation, Article 151 of the 1999 Penal Code also stipulates the circumstances that are signs of conviction and also signs that distinguish between acts considered criminal and administrative violations, which are the circumstances of "causing serious consequences or having been administratively violated in the act of mistreatment or torture and still violating"
A. BASIC SIGNS OF CRIME
1. Signs of the subject of the crime
Like the subjects of other crimes, the subjects of the crime of mistreating or torturing grandparents, parents, spouses, children, grandchildren, and those who have raised them must also ensure the necessary and sufficient factors (conditions) such as: age, criminal responsibility capacity as prescribed in Articles 12 and 13 of the Penal Code.
For the crime of abusing or torturing grandparents, parents, spouses, children, grandchildren,
the person who raised you, even though he is not your master
body
special but
In each specific case, the offender must be someone who has a certain relationship with the victim. For example: Only the victim's child is the subject.
of parental abuse; refers to the grandchild (grandchild or grandchild) of
The victim is the subject of the crime of mistreating or torturing grandparents; only the victim's wife is the subject of the crime of mistreating or torturing her husband; only the victim's husband is the subject of the crime of mistreating or torturing his wife...
The crime of mistreating or torturing grandparents, parents, spouses, children, grandchildren, or those who have raised you is a less serious crime, so only people aged 16 or older can be the subject of this crime. However, for the act of mistreating or torturing spouses, only people of marriageable age (men up to 20 years old, women up to 18 years old) and that marriage relationship is recognized by law (legal marriage), then the wife or husband can be the subject of the crime of mistreating or torturing spouses.
2. Signs of the objective side of the crime
The object of the crime of mistreating or torturing grandparents, parents, spouses,
children, grandchildren, and those who have raised you are family relationships. This relationship is not only stipulated in the Constitution but it is specifically stipulated in the Law on Marriage and Family: "Husbands and wives are prohibited from mistreating, torturing, or insulting each other's honor, dignity, or reputation" (Clause 2, Article 21); "Parents are not allowed to discriminate against their children, torturing, torturing, or insulting their children" (Clause 2, Article 34); "Children are strictly prohibited from mistreating, torturing, or insulting their fathers."
"mother" (Article 35); "grandparents have the obligation and right to take care of,
take care of and educate grandchildren, live exemplary lives and set good examples for children and grandchildren...have the obligation to raise grandchildren" (Article 47)32
The victims of this crime include: grandparents, fathers, mothers, wives, husbands, children, grandchildren and those who raised them.
32 See Articles 21, 34, 35 and 47 of the Law on Marriage and Family
Grandparents include both paternal and maternal grandparents. However, there are opinions that grandparents on the wife's or husband's side33, if abused or tortured by a son-in-law or daughter-in-law, are also subject to the crime of abuse or torture of grandparents. There may be different opinions on this issue, but in our opinion, the relationship between grandparents and grandchildren comes from blood relations, not from marriage relations, so the victims (subjects of impact) of this crime do not include grandparents on the wife's side or grandparents on the husband's side. Article 47 of the Law on Marriage and Family, when regulating the relationship between grandparents and grandchildren, does not also regulate grandparents on the wife's side.
or husband's side. About
relationship
ethics, in-laws
as
grandparents next door
Husband or wife must respect and care for their husband or wife. But legal obligations and criminal responsibilities towards their son-in-law or daughter-in-law are another matter. If we accept the view that a son-in-law or daughter-in-law has legal obligations towards his or her husband's grandparents, how will those obligations be fulfilled after the marriage ends?
Parents include biological parents, adoptive parents, parents-in-law, and parents-in-law. However, parents-in-law or parents-in-law can only be the subject of this crime when the marital relationship still exists or one of the two has died. If the marital relationship ends due to divorce and the wife or husband has married another person, the former parents-in-law or parents-in-law are no longer the subject of this crime.
Children include biological children (legitimate or illegitimate), adopted children, daughters-in-law, sons-in-law, and minor children of the wife or husband who are living with the stepfather or stepmother.
Grandchildren include grandchildren; adopted grandchildren. However, there are opinions that also include nieces-in-law and nephews-in-law as subjects affected by this crime.34 But in our opinion, the subjects affected by this crime as well as the subjects of this crime do not include nieces-in-law or nephews-in-law.
The person who has raised you is the person who has raised the person who has abused or tortured you. This subject does not depend on blood relations or marriage relations, but depends entirely on the relationship between the person raising you and the person being raised. If the person raising the offender is the grandfather, grandmother, father, mother, wife, husband, child or grandchild who is being abused or tortured, then it is not a case of abusing or torturing the person who has raised you.
3. Objective signs of crime
a. Objective behavior.
A person who abuses or tortures grandparents, parents, spouses, children, grandchildren, or those who have raised him or her may commit one of two acts: abuse, torture, or both.
33 See Criminal Law Textbook of Hanoi Law University, People's Police Publishing House. p. 415
34 See Criminal Law Textbook of Hanoi Law University. People's Police Publishing House. Page 415.
The act of abuse or torture is similar to the act of abuse or torture in the crime of forced marriage or preventing voluntary and progressive marriage prescribed in Article 146 and the crime of torturing others prescribed in Article 110 of the Penal Code.
Abuse of grandparents, parents, spouses, children, grandchildren, and foster parents
Cruelty to one's grandparents, to children, to parents, to a wife or husband, to a father or mother, or to a child, is an act of cruelty, contrary to reason and morality, of a grandchild towards his or her grandparents, of a child towards his or her parents, of a husband towards his or her wife towards his or her parents.
Torturing grandparents, parents, spouses, children, grandchildren, or people who have raised you is an act of cruelty by grandchildren towards grandparents, children towards parents, wives towards husbands or husbands towards wives, fathers or mothers towards children, or people being raised towards people who have raised them.
Cruelty is manifested as beatings and other acts of violence that are systematic and repeated over and over again.
Usually, the act of torture is repeated and lasts for several days, weeks, even months, years. This act not only causes physical pain but also mental suffering to the person being tortured. If this act causes injury or damage to the health of the person being tortured, it is only a minor injury that is not serious enough to be prosecuted for causing injury or damage to the health of another person according to Article 104 of the Penal Code.
The above acts only constitute the crime of mistreating or torturing grandparents, parents, spouses, children, grandchildren, or people who have raised you when the person who has committed the act of mistreating or torturing has been administratively punished but still commits the violation.
Having been administratively punished for this act and still committing the violation means having previously abused or tortured grandparents, parents, spouses, children, grandchildren, or people who have raised them, having been administratively punished by one of the forms of administrative punishment or by one of the other forms of administrative handling according to the provisions of the Ordinance on Handling Administrative Violations and the period of time considered as not having been administratively handled has not expired, and now committing the act of abuse or torture.
grandparents, parents, wife
husband, children, grandchildren, people who raised me.
If
Previously, although the offender was administratively punished, but for other acts that are not acts of abuse or torture of grandparents, parents, spouses, children, grandchildren, or people who raised him, it does not constitute this crime.
b. Consequences
The consequences of this crime are serious, if the consequences are not serious and the offender has not been administratively punished for the crime.
for abusing or torturing grandparents, parents, spouses, children, grandchildren, or people with disabilities
The act of raising oneself does not constitute this crime.
Serious consequences of abusing or torturing grandparents and parents
Mother, husband, children, grandchildren, and those who raised you are the ones who cause damage.
harm to grandparents, parents, spouses, children, grandchildren, and those who have raised you such as: life, health, illness, suicide, or other damages to the victim such as: having to drop out of school to wander around, being lured into a life of crime by others.
Although there is no official explanation of what constitutes a consequence,
serious due to abuse, torture of grandparents, parents, spouses, children,
Grandchildren, the person who raised you, but through practical judgment, it can be considered a serious consequence of the act of mistreating and torturing grandparents, parents, spouses, children, grandchildren, and the person who raised you in the following cases:
- Causing death (including death by murder);
- Causing injury or damage to the health of another person with a disability rate of 21% or more (excluding injury or damage to health directly caused by the offender to the victim);
- Causing property damage worth VND 50,000,000 or more;
- Causing bad public opinion on cultural and social aspects, seriously affecting family and social ethics.
The law only stipulates causing serious consequences, not very serious or especially serious consequences. However, that does not mean that if one abuses or tortures grandparents, parents, spouses, children, grandchildren, or those who have raised one, causing very serious or especially serious consequences, it does not constitute a crime.
Thus, the consequences of this crime are both a mandatory sign of the crime and not a mandatory sign. If the offender has been administratively punished, the consequences are not a mandatory sign, but if the offender has not been administratively punished, serious consequences are a mandatory sign.
4. Subjective signs of crime
The offender committed the act of abusing or torturing grandparents or parents.
mother, husband, children, grandchildren, and the person who raised you is intentional, that is
The offender is fully aware that his behavior is an act of abuse and torture towards grandparents, parents, spouses, children, grandchildren, and those who have raised him.
However, crime is a crime that violates family relationships, so in reality there are many cases where the offender does not clearly realize that his behavior is an act of abuse and torture of his relatives. Some parents even think that beating their children is the right of parents and that it is a method of teaching and educating their children. It is also because of this backward thinking that there are children who are abused and tortured but do not dare to report their parents' behavior, while their parents are indifferent as if nothing happened. Taking into account this reality and when society is not highly developed, lawmakers stipulate that abuse and torture must cause serious consequences or be administratively violated and still be a crime.
B. SPECIFIC CRIMINAL CASES
Article 151 provides for many criminal cases but only one frame.
warning, non-custodial reform up to three years or imprisonment from three years
months to three years, is a less serious crime.
When deciding on the penalty for a criminal under Article 151 of the Penal Code, the Court must also base itself on the provisions on deciding on penalties in Chapter VII of the Penal Code (from Article 45 to Article 54). If the offender only mistreats or tortures one person, there are many mitigating circumstances, no aggravating circumstances, the Court may apply a warning or non-custodial reform; if the offender both mistreats and tortures, has been administratively violated and caused serious consequences, mistreats or tortures many people, has many aggravating circumstances, has few or no mitigating circumstances, then the offender shall be sentenced to imprisonment. When applying a prison sentence, if the conditions specified in Article 60 of the Penal Code are met, the offender may be given a suspended sentence.
7. CRIME OF REFUSAL OR EVASION OF THE OBLIGATION TO PROVIDE SUPPORT Article 152. Crime of refusing or evading the obligation to provide support
A person who has the obligation to provide support and has the actual ability to provide support to the person he/she is obliged to provide support for according to the provisions of law but intentionally refuses or evades the obligation to provide support, causing serious consequences, or has been administratively sanctioned for this act but still violates it, shall be subject to a warning, non-custodial reform for up to two years, or imprisonment from three months to two years.
Definition : The crime of refusing or evading the obligation to provide support is the act of a person who has the obligation to provide support and has the actual ability to provide support to the person he/she has the obligation to provide support according to the provisions of law, but intentionally refuses or evades the obligation to provide support, causing serious consequences or has been administratively sanctioned for this act but still violates.
The law stipulates two criminal acts, which are the act of refusing the obligation to provide support and the act of evading the obligation to provide support. Therefore, depending on each specific case, the crime must be determined accurately.
If the offender commits both acts of “refusal” and “evasion”, the crime is “refusal and evasion of the obligation to provide support”;
If the offender commits only one of the two acts of "refusal" or "evasion", the crime is "refusal of the obligation to provide support" or "evasion of the obligation to provide support".
The crime of refusing or evading the obligation to provide support is a completely new crime that the 1985 Penal Code has not yet regulated. The lawmaker's regulation of the act of refusing or evading the obligation to provide support as a crime also aims to respond to the social reality of the situation of refusing and evading the obligation to provide support.
care, especially the obligations of parents towards their minor children after divorce, the obligations of children towards their elderly and sick parents; at the same time, to consolidate and promote the good traditions of the family.
A. BASIC SIGNS OF CRIME
1. Signs of the subject of the crime
Like the subject of other crimes, the subject of the crime of refusal or
Evading the obligation to provide support must also ensure necessary and sufficient factors (conditions) such as age and criminal responsibility capacity as prescribed in Articles 12 and 13 of the Penal Code.
Although the crime of refusing or evading the obligation to provide support is not a special subject, in each specific case, the offender must be a person who has a certain relationship with the victim. For example: Only a father who is forced by the Court to provide support for his minor child after divorce is the subject of the crime of refusing or evading the obligation to provide support.
The crime of refusing or evading the obligation to provide support is a less serious crime, so only people aged 16 and over can become the subject of this crime. However, for the act of refusing or evading the obligation to provide support by some subjects, only people of a certain age can be the subject of this crime such as: parents for minors, grandparents for grandchildren.
2. Signs of the objective side of the crime
The object of the crime of refusing or evading the obligation to provide support is the violated family relationship, directly the right to have relatives provide support for one.
The right to alimony is a right prescribed by law, specifically the Law on Marriage and Family, because the alimony relationship is a family relationship.
can be
According to the provisions of the Law on Marriage and Family, the obligation to provide alimony
performed between father, mother and children, between siblings, between grandparents and grandchildren, between husband and wife (Article 50).
3. Objective signs of crime
a. Objective behavior.
Refusing the obligation to provide support means having the obligation to provide support according to the law and being able to provide support but refusing (not accepting) support when the person receiving support according to the law requests support or has a court decision requiring support but does not provide support.
Evading the obligation to provide support means having the obligation to provide support according to the law and being able to provide support but finding every way to avoid providing support (running away, hiding address, deliberately delaying the support), when the person receiving support requests or has a court decision requiring support but still does not provide support.