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Crimes against family regime under Vietnamese criminal law - 1


HANOI NATIONAL UNIVERSITY

FACULTY OF LAW

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PHAM THI TUAN

Crimes against family regime under Vietnamese criminal law - 1


CRIMES OF VIOLATING FAMILY REGIME UNDER VIETNAMESE CRIMINAL CODE


Major: Criminal law and criminal procedure Code: 60 38 01 04


MASTER'S THESIS


Scientific supervisor: Associate Professor, Dr. Trinh Quoc Toan


Hanoi – 2016


COMMITMENT


I hereby declare that this is my own scientific research work. The figures, examples and citations in the thesis are accurate and truthful. The results in the thesis have not been published in any other work.


AUTHOR


Pham Thi Tuan


INDEX

INTRODUCTION 1

Chapter 1 : SOME GENERAL ISSUES ON CRIMES AGAINST FAMILY REGIME UNDER VIETNAM'S CRIMINAL CODE 7

1.1. Concept and characteristics of crimes against family regime 7

1.1.1. Concept of crimes against family regime 7

1.1.2. Characteristics of crimes against family regime 14

1.2. Overview of the formation and development process of regulations on crimes against family regime 15

1.2.1. Period before 1945 15

1.2.2. The period from after 1945 to before 1985 17

1.3. Provisions on crimes against family regime in criminal law of some countries in the world 26

Chapter 2 : PROVISIONS ON CRIMES OF VIOLATION OF FAMILY REGIME IN THE VIETNAMESE CRIMINAL CODE AND PRACTICAL APPLICATION

................................................................ ................................................................ ..................... 32

2.1. Typical legal signs of crimes against family regime and criminal handling methods 32

2.1.1. Crime of violating the monogamy regime (Article 147 of the 1999 Penal Code) 32

2.1.2. Incest (Article 150 of the 1999 Penal Code) 42

2.1.3. Crime of mistreating and torturing grandparents, parents, spouses, children, or people who have raised you (Article 151 of the 1999 Penal Code) 48

2.1.4. Crime of refusing or evading the obligation to provide support (Article 152 of the 1999 Penal Code) 54

2.2. Practical application of the provisions of the 1999 Penal Code in the trial of crimes against family regime 60

2.3. Some shortcomings and limitations in the trial of crimes against family regime and the causes 68

2.3.1. Limitations in legal regulations on crimes against family regime 68

2.3.2. Limitations in investigation, prosecution and trial of crimes against family regime 74

Chapter 3 : SOME RECOMMENDATIONS AND SOLUTIONS TO IMPROVE THE PROVISIONS OF THE 1999 CRIMINAL CODE ON CRIMES AGAINST FAMILY REGIME AND IMPROVE THE QUALITY OF TRIAL OF THESE CRIMES 78

3.1. Viewpoints on perfecting legal regulations on crimes against family regime and improving the quality of investigation, prosecution and trial of these crimes... 78

3.2. Some recommendations to improve the provisions of the 1999 Penal Code on crimes against family regime 80

3.3. Some solutions to improve the quality of investigation, prosecution and trial of crimes against family regime 88

3.3.1 Improving the investigation activities of the Investigation Agency 88

3.3.2. Improving the effectiveness of prosecution activities of the Procuracy 90

3.3. Improving the effectiveness of the Court's adjudication activities 93

CONCLUSION 96

LIST OF REFERENCES 98


LIST OF ABBREVIATIONS


BLHS: Criminal Code HNVGĐ: Marriage and family Publisher: Supreme People's Court Publishing House VKS: Procuracy

TNHS: Criminal responsibility CTTP: Crime composition


LIST OF TABLES

Table 2.1: Number of cases of crimes against marriage and family regimes tried at first instance 61

Table 2.2 Number of cases of crimes against family regime in total number of cases of crimes against marriage and family regime 62

Table 2.3: Number of cases and defendants for violating the monogamy regime, tried at first instance 63

Table 2.4: Number of cases and defendants of incest, tried at first instance 64

Table 2.5: Number of cases, defendants for the crime of mistreating or torturing grandparents, parents, spouses, children, grandchildren, and people who raised them, tried at first instance 65

Table 2.6. Trial results of cases of violations of family regime 67


INTRODUCTION


1. Urgency of the topic

Family is the cell of society, the cradle that nurtures people, the important environment for forming and educating personality, contributing to the cause of building and defending the socialist Fatherland. If the family is good, the society is good, and if the society is good, the family is even better.

Realizing the importance of family in the construction of socialism, immediately after the success of the August Revolution, our State established a new progressive marriage and family regime, replacing the feudal and backward marriage and family regime. The determination to build a new marriage and family regime (HN&GĐ) of our Party and State is clearly demonstrated in the Constitutions of 1946, 1959, 1980 and Article 64 of the 1992 Constitution stated:

The family is the cell of society. The State protects marriage and the family. Marriage is based on the principles of voluntary, progressive monogamy, and equality between husband and wife. Parents are responsible for raising their children to become good citizens. Children have the duty to respect and care for their grandparents and parents. The State and society do not recognize discrimination against children.

To ensure proper and complete implementation of the new progressive marriage and family regime and strict compliance with the Constitution, the 1985 Penal Code, as well as the 1999 Penal Code, have specifically stipulated crimes that violate the marriage and family regime, contributing to preventing, limiting and gradually eliminating the remnants of the feudal and backward marriage and family regime.

In recent years, the crime situation has tended to increase and become more complicated; there has been a decline in politics, morality, and lifestyle, including in the field of marriage and family in particular. Notably, crimes against marriage and family regimes have not tended to increase, but their nature and severity have become increasingly serious, causing negative public opinion in society. Among the crimes against marriage and family regimes,


In terms of HN&GĐ, crimes against family regime stipulated in Chapter XV of the Penal Code are the most frequently occurring crimes. These crimes include Articles 147, 150, 151, 152 of the 1999 Penal Code.

The practice of fighting against crimes against the family regime in general and especially crimes against the family regime in particular shows that, although these are crimes that are not very dangerous to society, they have a great impact on family life; in fact, these crimes occur a lot, but the handling by criminal sanctions is still very limited. The practice of applying crimes against the family regime has also raised many problems, requiring criminal law science to study and solve to clarify the theoretical aspects such as: the concept of crimes against the family regime, the meaning of regulating these crimes in criminal law... Meanwhile, surrounding these issues, there are still many different opinions, even contradictory ones.

Therefore, the research on the topic, " Crimes violating the family regime according to Vietnamese criminal law ", is urgent, not only in theory, but also a requirement of current practice.

2. Research situation

Crimes against the marriage and family regime are a group of highly sensitive and complex crimes that have been studied by a number of domestic jurists. Some works include: Bui Anh Dung's work " Studying crimes against citizens' democratic freedoms, crimes against marriage and family regimes ", Labor Publishing House, Hanoi, 2003; Author Trinh Tien Viet's works: " Some issues to note when applying the provisions in the chapter on crimes against marriage and family regimes in the 1999 Penal Code ", Journal of Legal Science, Ho Chi Minh City University of Law, No. 1/2003, " Crime of refusing or evading the obligation to provide support in

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