1. 2.9 . Decide on a term of imprisonment in case of accomplices
Article 58 of the Penal Code stipulates: "Deciding on penalties in cases of accomplices. When deciding on penalties for accomplices, the Court must consider the nature, extent, and behavior of the accomplices, the nature and extent of each accomplice's participation in the crime [19].
For accomplices in the exclusion of criminal liability, depending on the individual's criminal liability, the reduction or aggravation of criminal liability will apply to that individual.
According to that regulation, when determining criminal liability and punishment for each accomplice, the court must consider:
- Characteristics of accomplices: Affects the nature and level of danger to society of the common crime that they all commit together.
- The level of participation and nature of each act of the accomplice:
+ The role of the accomplice represents the nature of the criminal process, it has the specificity of the task, as well as the function of influencing the crime.
+ Determining the level of participation depends on the commission of the crime as well as the consequences of the general crime.
+ Depending on the individual committing the crime, different aggravating and mitigating circumstances are shaped.
1.2.10. Decide on a term of imprisonment for people under 18 years old
sin
Inheriting the basic principles of the Penal Law, juvenile offenders of the 1999 Penal Code, the 2015 Penal Code also have important changes such as replacing the phrase juvenile offenders with the phrase people under 18. age of crime. The criminal prosecution of people under 18 years of age who commit crimes is mainly to educate and reform the criminals to recognize their mistakes and shortcomings and how to have the best conditions for reconciliation.
join the community. One of the humanitarian policies of criminal law is the application of prison sentences to people under 18 years old who commit crimes according to Article 101 of the 2015 Penal Code as follows:
“For people from 16 years old to under 18 years old when committing a crime, if the applied law stipulates life imprisonment or death penalty, the maximum penalty applied shall not exceed 18 years in prison; If it is a term of imprisonment, the maximum penalty applied shall not exceed three-quarters of the prison sentence prescribed by the law.
For people from 14 years old to under 16 years old when committing a crime, if the applicable law stipulates life imprisonment or death penalty, the maximum penalty applied shall not exceed 12 years in prison; If it is a term of imprisonment, the maximum penalty imposed shall not exceed one-half of the prison sentence prescribed by the law .
Near the end of Clauses 1 and 2 of this Article, there is the phrase the prison sentence prescribed by the law. In addition, there are no documents clearly guiding this issue, so the application of a term of imprisonment for people under When 18 years old commits a crime, there can be three different ways of understanding and applying it as follows:
+ Firstly, according to Clause 6 - Article 91 of the Penal Code, it is stipulated: If a person under 18 years of age commits a crime, when the court imposes a term of imprisonment, the sentence will be lighter than when applied to a person under 18 years of age and when a person under 18 years old commits a crime. If 18 years old commits a crime, according to Clause 1, Article 101 of the Penal Code, the highest penalty for people under 18 years old and full 16 years old is no more than three-quarters, and for people from 14 years old to under 16 years old, the highest penalty is applied. Usage is one-half and not more.
For example: Pham Thi H committed the crime of illegally buying and selling narcotics. She was only 17 years old as of the date of the crime. She was prosecuted under Clause 2 - Article 194 of the Penal Code with a prison sentence of 5 to 10 years. year. Hypothetically, the maximum penalty applied to H is 7 years in prison, but because H is under 18 years old, the maximum penalty is no more than three-quarters of 7 years, which is 5 years.
25 days.
+ Second, when applying fixed-term imprisonment to people from 16 years old to under 18 years old according to Clause 1 - Article 101 of the Penal Code, the maximum penalty is not more than three-quarters and for people from 14 years old to under 18 years old. Under 16 years old according to Clause 2 - Article 101 of the Penal Code, the maximum penalty applied is not more than one-half of the maximum penalty prescribed by the penalty framework of the law. Thus, according to the example above, the maximum penalty that H can receive will be 3 years and 6 months.
+ Thus, according to the example above, Article 249 of the 2015 Penal Code stipulates that the maximum penalty of the law is 20 years, meaning that H can be sentenced to three-quarters of 20 years, which is 15 years in prison.
CONCLUSION OF CHAPTER 1
Through studying Chapter 1, the author draws the following conclusions:
- The author introduces concepts for applying punishment, especially for fixed-term imprisonment. Identify the contents that need to be researched in applicable activities, thereby serving as a basis for separating and distinguishing fixed-term imprisonment from other penalties. Include important issues of fixed-term imprisonment in the thesis to serve as a reference database.
- Imposing a term of imprisonment is an activity of applying criminal law after the process of determining the crime takes place, this is based on the case file and summarizing the results of the litigation process in court. Consider specifically the circumstances and fully evaluate the provisions of the criminal code. From the above processes, the trial panel applies the Penal Code to determine the specific penalty level of a fixed-term prison sentence to sentence the offender and make a final decision in the sentence on the announced penalty. .
- Identify the important meanings of the application of fixed-term imprisonment: political-social, legal, educational, rehabilitation and crime prevention implications.
Chapter 2
PRACTICE OF APPLICATION OF TERM PRISON PENALTY
IN BIEN HOA CITY - DONG NAI PROVINCE AND SOME SOLUTIONS TO ENSURE THE CORRECT APPLICATION OF THIS PENALTY ACCORDING TO THE REGULATIONS OF THE LAW
2.1. Practical application of term imprisonment in Bien Hoa city, Dong Nai province
2.1.1. The situation of applying fixed-term prison sentences in Bien Hoa city, Dong Nai province in the period of 2016 - 2020.
- The situation of applying fixed-term imprisonment sentences
Based on the report on the results of annual work tasks (from 2016 to 2020) of the People's Court of Bien Hoa city, Dong Nai province, the situation of accepting and adjudicating criminal cases is shown through summary table below:
Table 2.1: Number of cases and defendants accepted
Unit of calculation: Case, defendant
No
Year | Accepted data | ||||
Case | Percentage | Accused | Percentage | ||
1 | 2016 | 53 | 20.2% | 104 | 20.9% |
2 | 2017 | 46 | 17.5% | 82 | 16.5% |
3 | 2018 | 51 | 19.4% | 100 | 20.1% |
4 | 2019 | 58 | 22.1% | 109 | 21.9% |
5 | 2020 | 55 | 20.9% | 102 | 20.5% |
Add | 263 | 100% | 497 | 100% | |
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(Source: Crime statistics of the People's Court of Bien Hoa city, province
Dong Nai)
The statistical table shows:
- In 2016, the Court handled 53 cases, with a total of 104 defendants.
- In 2017, the Court handled 46 cases, with a total of 82 defendants.
- In 2018, the Court handled 51 cases, with a total of 100 defendants.
- In 2019, the Court handled 58 cases, with a total of 109 defendants.
- In 2020, the Court handled 55 cases, with a total of 102 defendants.
Based on crime statistics from 2017 to 2020, the number of cases and the number of defendants tends to increase. The strongest and largest increase was in 2019 and the smallest number was in 2017. Compared to 2019, the number of cases and defendants in 2020 tended to decrease, which is a good thing in the past year.
Through case trial practice, it shows that the court's application of fixed-term imprisonment accounts for a very large proportion compared to other main penalties.
Table 2.2: Data on main penalties applied
Unit of calculation: Defendant
Year
Total number of defendants | Key penalty figures apply | |||||||
Warning | Fine | Rehabilitation without detention hold | Given a suspended sentence | Imprisonment for a term | Life imprisonment | Death penalty | ||
2016 | 91 | 10 | 14 | 21 | 10 | 37 | 0 | 0 |
2017 | 70 | 5 | 9 | 19 | 8 | 29 | 0 | 0 |
2018 | 79 | 12 | 6 | 13 | 12 | 36 | 0 | 0 |
2019 | 95 | 7 | 12 | 15 | 20 | 41 | 0 | 0 |
2020 | 83 | 7 | 9 | 11 | 18 | 38 | 0 | 0 |
Total | 418 | 41 | 50 | 79 | 68 | 180 | 3 | 0 |
Proportion | 100 | 9.8% | 12.0% | 18.9% | 16.3% | 43.1% | 0% | 0 |
(Source: Crime statistics of the People's Court of Bien Hoa city, province
Dong Nai)
Above is a table of statistical data on penalty application in Bien Hoa city, Dong Nai province over a period of 5 years from 2016 to 2020.
The above table shows that the number of cases of penalty imposition in Bien Hoa city, Dong Nai province is as follows: Caution was applied to 41 defendants, accounting for 9.8%; Imposing fines on 50 defendants, accounting for 12.0%; Apply non-custodial reform to 79 defendants, accounting for 18.9%; Impose imprisonment but suspended sentences for 68 defendants, accounting for 16.3%; Imposing a term of imprisonment for 180 defendants, accounting for 43.1%; Apply life imprisonment to 3 defendants, accounting for 0.7%; Imposing the death penalty on 0 defendants.
It can be seen that fixed-term imprisonment accounts for a very large proportion of 43.1%, not including the number of defendants who were given fixed-term imprisonment but were given suspended sentences.
Table 2.3: Data on trial results
Unit of calculation: Case, defendant
Status
Year | Total trial | ||||
Case | Percentage | Accused | Percentage | ||
1 | 2016 | 48 | 20.3% | 91 | 21.8% |
2 | 2017 | 42 | 17.7% | 70 | 16.7% |
3 | 2018 | 46 | 19.4% | 79 | 18.9% |
4 | 2019 | 50 | 21.1% | 95 | 22.7% |
5 | 2020 | 51 | 21.5% | 83 | 19.9% |
Add | 237 | 100% | 418 | 100% | |
(Source: Crime statistics of the People's Court of Bien Hoa city, province
Dong Nai)
Through aggregated and analyzed data, it shows that during the period from 2016 to 2020, Bien Hoa city, Dong Nai province conducted trials of the following cases:
- In 2016, the Court tried 48 cases with 91 defendants.
- In 2017, the Court tried 42 cases with 70 defendants.
- In 2018, the Court tried 46 cases with 79 defendants.
- In 2019, the Court tried 50 cases with 95 defendants.
- In 2020, the Court tried 51 cases with 83 defendants.
The practice of adjudicating criminal cases over a 5-year period of the People's Court of Bien Hoa city, Dong Nai province has successfully completed the assigned tasks. Properly judge the right person for the right crime in criminal cases. High resolution rate brings efficiency in crime prevention. Enhance the role of the court in serving local political and social purposes, limiting backlogged sentences.
Table 2.4: Data on types of crimes handled
Unit of measurement: Case
TT
Crime | Number accepted by year | Total | Proportion | |||||
2016 | 2017 | 2018 | 2019 | 2020 | ||||
1. | Murder | 1 | 0 | 1 | 2 | 1 | 5 | 1.9% |
2. | Crime of intentionally causing injury | 6 | 9 | 8 | 5 | 7 | 35 | 13.3% |
3. | Crime of robbery | 0 | 1 | 1 | 2 | 1 | 5 | 1.9% |
4. | Crime of fraudulent appropriation of property | 4 | 3 | 6 | 5 | 3 | 21 | 8.0% |
5. | Crime of abuse of trust take property | 3 | 4 | 2 | 3 | 6 | 18 | 6.8% |
6. | Crime of production, storage, Transporting and trading prohibited goods | 1 | 0 | 1 | 2 | 4 | 8 | 3.0% |
7. | Crime of storing, transporting, buying sell or appropriate drugs | 8 | 5 | 6 | 9 | 5 | 33 | 12.5% |
8. | Crime of violating the provisions of article control road vehicles | 4 | 1 | 2 | 1 | 2 | 10 | 3.8% |
9. | Gambling crime | 8 | 5 | 9 | 10 | 12 | 44 | 16.7% |
10. | Crime of theft of property | 12 | 10 | 13 | 17 | 13 | 65 | 24.7% |
11. | Crime of property appropriation | 2 | 3 | 0 | 1 | 1 | 7 | 2.7% |
12. | Other crimes | 4 | 5 | 2 | 1 | 0 | 12 | 4.6% |
Add | 53 | 46 | 51 | 58 | 55 | 263 | 100% | |
Percentage | 20.2 | 17.5 | 19.4 | 22.1 | 20.9 | 100 | ||
(Source: Crime statistics of the People's Court of Bien Hoa city, province
Dong Nai)
Through the statistical data table, we see that starting from 2016 compared to 2017, the number of people brought to trial tends to decrease. But from 2016 to 2019, the number brought to trial increased gradually. The peak was in 2019 with numbers