Firstly , the exemption from criminal liability is mainly implemented at the investigation and prosecution stages. Courts at all levels in the province also apply this regulation, but in small numbers.
Specifically: the investigation agency applied the exemption from criminal liability in the period (2015-2020) for 100 defendants (accounting for 39.3%); the Procuracy applied 98 defendants (accounting for 38.6%); the Court applied 56 defendants (22.04%).
Second, the application of the criminal liability exemption regime by the prosecution agencies mainly focuses on certain types of crimes with exemption conditions mainly focusing on Clause 1, Article 25 of the 1999 Penal Code and Clause 3, Article 29 of the 2015 Penal Code. The criminal liability exemption is applied by the prosecution agencies to a number of crimes: gambling, theft, organizing illegal racing, intentionally causing injury, crimes related to road traffic participation... In which, the crimes of gambling and theft of property are mainly applied by the Court. The crime of illegal racing is applied the most by the Procuracy, specifically in 2016 with 39 defendants being applied the criminal liability exemption regime according to Clause 1, Article 25 of the 1999 Penal Code.
Third, through tables 1 and 3, it can be seen that the application of the exemption from criminal liability by the investigation agency and the prosecutor's office is relatively consistent over the years; the court has a difference compared to these two agencies. This shows that the court tightens the application of this regulation or it can also be said that there are different perceptions of the agencies conducting the proceedings in each stage, leading to reluctance to apply this regulation to criminals.
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Fourth, the similarity in this application to all three agencies is that a large number were implemented in 2016 when the 2015 Penal Code took effect; however, it gradually decreased over the following years; especially by 2020.
The prosecutor and the court did not handle any cases; the investigation agency handled two cases.
As for the court, the application of the exemption from criminal liability regime is clearly shown as follows:
Firstly , the measure of exempting from criminal liability is rarely applied, specifically in 2015 and 2019, only one case of exempting from criminal liability was applied per year, accounting for 0.02% of the total number of convicted people; even by 2020, there were no cases. In 2016, the number of people exempted from criminal liability was the highest, with 35 cases, accounting for 1.01% - this can also be understood as when the 2015 Penal Code came into effect, many defendants were exempted from criminal liability when applying new circumstances of the Code that were favorable to the offender. The provision of exempting from criminal liability under the 2015 Penal Code for the reason of "changes in policies and laws" was applied in favor of the offender. At the transitional period between the 1999 Penal Code and the 2015 Penal Code, many types of crimes were changed by lawmakers to suit the economic, political and social situation. Therefore, the practical application shows that the number of defendants exempted from criminal liability for this reason is quite common. The fact that the Penal Code stipulates this basis for exemption from criminal liability in Article 29 of the 2015 Penal Code helps create favorable conditions for the clear application of the law by the prosecuting agency. Previously, there was no such provision, so there were cases where, due to changes in legal policies, the criminal act was no longer dangerous to society, but the prosecuting agency when applying the exemption from criminal liability for the reason of "change in the situation" was unreasonable because in these cases, the situation did not change.
The application of the provisions in Clause 3, Article 29 of the 2015 Penal Code is applied in practice. It must be acknowledged that this provision is a form of resolving criminal disputes through voluntary reconciliation between the perpetrator and the victim, which has been recognized for the first time.
in Vietnamese criminal law. Local prosecution agencies have boldly applied this provision, especially in cases of violations of regulations on road vehicle control as prescribed in Article 260 of the 2015 Penal Code.
As mentioned in Chapter 1, exemption from criminal liability means not forcing the offender to bear criminal liability for the crime they have committed. Thus, the subject exempted from criminal liability is not subject to coercive measures within the content of criminal liability, including conviction, punishment, and judicial measures in lieu of punishment and criminal record. Although the 2015 Penal Code stipulates 10 cases of exemption from criminal liability (including the General Part and the Crimes Part), statistics show that in practice, courts rarely apply this measure.
Second , the frequency and trend of applying the measure of exemption from criminal liability in the stage of resolving criminal liability are not the same. If some types of sentences such as suspended sentences have a steady increase every year, the rate of exemption from criminal liability has an unstable increase and decrease over the years, such as in 2016 it skyrocketed to 35 cases; in 2017 it decreased by half to 16 cases and in 2018 it decreased again to 3 cases and in 2019 there was only one case while the total number of convicts increased and decreased steadily, until 2020 there were no cases. This probably comes from the reason for applying these measures, if suspended sentences are applied basically based on the viewpoint and handling policy, then exemption from criminal liability depends on the number of specific cases that occur.
Third, according to Statistical Table No. 02, the percentage of people exempted from criminal liability in Dong Nai province and the whole country each year is not the same, not proportional to the number of people exempted from criminal liability of Dong Nai Provincial People's Court, specifically:
Although in 2016, after the 2015 Penal Code took effect with provisions favorable to criminals, the number of defendants exempted from criminal liability increased.
The number of defendants in the country increased sharply from 117 to 2,489. Therefore, proportional to this figure, Dong Nai also increased sharply to 35 people in 2016, while in 2015 there was 1 case; while in 2018, although Dong Nai only had 3 cases exempted from criminal liability, it accounted for the highest rate in 5 years compared to the national rate of 56 cases, accounting for 5.3%, but by 2020 there were no cases. Thus, this figure also reflects that the exemption from criminal liability in local courts depends on the case and the person committing the crime.
2.2.3. Evaluation of advantages, limitations and causes of limitations in the application of criminal liability exemption in Dong Nai province
The exemption from criminal liability stipulated in our country's criminal law reflects the humane and lenient policy of the State in handling crimes. In recent times, the concretization of this policy in the provisions of criminal law has been strengthened and deeply concretized in the Penal Code. The majority of criminals when applied this measure have shown repentance, honest work, and low recidivism rate. That has proven the correctness of our State in applying lenient policies to criminals, including the issue of exemption from criminal liability. However, in the process of application from the practice of the whole country in general and Dong Nai province in particular, it shows that there are still certain problems and limitations. Through research, we can make the following general assessments:
Firstly, a general comment shows that the measures for exemption from criminal liability under the provisions of the 2015 Penal Code, although having changes and additions compared to the 1999 Penal Code, have not been built on a solid theoretical foundation. That leads to a lack of consistency and unity in the provisions of the Penal Code as well as the relationship between criminal law and criminal, administrative and civil procedural laws. Specifically, the provisions on exemption from criminal liability for offenders do not apply to consequences.
legal consequences for them but are other legal liability measures applied? Because the effectiveness of law enforcement is a unified whole in which criminal law is a part of that unity.
Second , the coordination between the agencies conducting the proceedings in law enforcement leads to a situation where each agency is only interested in matters within its jurisdiction. The lack of uniformity in statistics greatly affects the issue of summarizing and drawing lessons.
Third, exemption from criminal liability is a humane institution that has great significance for criminals but at the same time has social significance such as reducing the application of state coercive measures against criminals, reducing costs for the state... However, in reality, the application of this measure is very limited. There may be many different reasons, but one reason is that the law is not clear, leading to the lack of boldness of the prosecution agency in applying this institution. This reason leads to the fact that the publication of precedents related to this issue is almost non-existent. This is also a limitation in the application of the law to this institution as well as affecting the summary of experiences.
Fourth, awareness of legal provisions on exemption from criminal liability in local prosecution agencies in the province is still limited, and the spirit of the law is even incorrectly applied, specifically:
- As mentioned before the 2015 Penal Code's provisions on the basis for exemption from criminal liability "due to changes in legal policies", the application of the exemption from criminal liability by local prosecution agencies on the basis of "changes in the situation" was still inappropriate, causing public outrage.
According to Decision No. 18/QD-VKS dated August 23, 2018 of Trang Bom District People's Procuracy, the case of Mr. Nguyen Van Ngan causing a traffic accident after drinking alcohol, killing one person and injuring three others, was suspended. However, Trang Bom District People's Procuracy, Dong Nai Province, still decided to suspend the case and exempt Mr. Ngan from criminal liability according to Clause 3, Article 29 of the 2015 Penal Code on the grounds that the offender had compensated the victims for damages and the victims' families had filed a complaint against the defendant Ngan. Therefore, the application of the measure of exempting criminal liability according to Article 29 of the 2015 Penal Code is incorrect because compensation for the victim in this case is only considered a mitigating circumstance of criminal liability as "the offender voluntarily repairs, compensates for damages, and overcomes the consequences" (Point c, Clause 1, Article 51). In addition, Mr. Ngan committed a very serious crime, so he cannot be exempted from criminal liability because he does not meet the requirements for crime prevention.
- There are many cases where people who commit less serious crimes intentionally, such as: Crime of Theft of Property (Clause 1, Article 173); Crime of Fraudulent Appropriation of Property (Clause 1, Article 174); Crime of Abuse of Trust to Appropriate Property (Clause 1, Article 175), etc. have fully compensated and reimbursed for damages and have been requested by the victim to be exempted from criminal liability, but have not been considered by law enforcement agencies for exemption from criminal liability (in practice, no cases of this type have been exempted from criminal liability). This is still a gap that has not been considered by the prosecution agencies to implement the exemption or non-exemption of criminal liability for criminals who meet the prescribed conditions of this type.
Fifth , the problem of avoiding compensation for wrongful convictions by the prosecuting agency often relies on the provisions on exemption from criminal liability of the Penal Code, specifically, every time a suspect or defendant is wrongfully convicted, they will receive a decision to exempt criminal liability on the basis of "due to changes in the situation", leading to the abuse of exemption from criminal liability to avoid compensation for wrongful convictions. Specifically, the People's Court of Xuan Loc district, Dong Nai province issued Decision
Decision No. 23/2016/HSST-QD suspends and applies exemption from criminal liability for the case of Mr. Tran Van Luong, the treasurer of Song May Company Limited, who was prosecuted for the crime of Abuse of trust to appropriate property (points a, b, Clause 3, Article 140 of the 1999 Penal Code). At the appeal court, it was determined that the investigation process at the first instance level was not complete and did not prove Mr. Luong's intention to appropriate property or fraudulent means to appropriate property. Therefore, the appeal court declared that there was not enough basis to determine whether Mr. Luong's behavior was an act of appropriation of property or not and declared the entire first instance judgment null and void. The Investigation Agency of Xuan Loc district re-investigated and concluded that Mr. Luong had partially recovered the assets in the civil relationship and decided to suspend the investigation of the criminal case, with the reason that " due to changes in the situation, the offender is no longer dangerous to society" according to the provisions of Clause 3, Article 29 of the 2015 Penal Code. The current situation of avoiding compensation for wrongful convictions due to the weak collection of evidence of the prosecution by the Investigation Agency by applying exemption from criminal liability is also a common situation in the whole country today. This is an incorrect application of the exemption from criminal liability because exemption from criminal liability is when the person has committed a crime and performed an act prescribed in the Penal Code, but for humanitarian reasons, the criminal law stipulates exemption from legal consequences for them. In the above case, Mr. Luong himself did not commit a crime according to the principle of presumption of innocence because the competent authority could not prove it.
Sixth, although Point c Clause 2 Article 29 of the 2015 Penal Code has stipulated strict conditions for exemption from criminal liability, including the condition that the offender “confessed” and this is a condition for exemption from criminal liability of a “discretionary” nature, the prosecuting agency shall base on each specific case to decide whether or not to exempt the offender from criminal liability. However, this basis is also understood to apply to all types of crimes because the law does not stipulate any limits on its application. According to the author, this may potentially lead to many
The risk of abuse as well as the lack of clarity in the level of differentiation of crime classification in the 2015 Penal Code. Here, we want to mention that for very serious or especially serious crimes that have a negative impact on public opinion, the application of this condition to exempt criminal liability is not appropriate and does not ensure the fairness and strictness of the law. For example, the case of Mr. Dinh Van Tam, residing in Nhan Nghia commune, Cam My district, Dong Nai province, who gave a bribe of extremely valuable assets worth billions of VND to Mr. Bui Van Nghia, Head of the Planning and Finance Department of Cam My district - falling under the provisions of Clause 4, Article 364 of the 2015 Penal Code, which is an especially serious crime, but Mr. Tam was exempted from criminal liability due to his self-confession with other conditions in Decision No. 14/QD-VKS dated September 17, 2017 of the People's Procuracy of Cam My district. This leads to the omission of criminals, causing negative effects on public opinion as well as people's trust in the strictness of the law, contrary to the humanitarian purpose of the criminal liability exemption regime.
The final point in the practical limitations of applying the exemption from criminal liability in Dong Nai province is that according to the provisions of Point c, Clause 2, Article 29 of the 2015 Penal Code, "effectively contributing to the detection and investigation of crimes, trying to minimize the consequences of crimes and making great achievements or making special contributions, recognized by the State and society". Regarding this circumstance, there is currently no unified understanding, specifically there are two different understandings as follows: (1) the crime here is an accomplice related to a case in which the person exempted from criminal liability related to that case significantly contributes to clarifying the truth of the case in which they themselves participate; (2) crime means any crime in general, the person exempted from criminal liability only needs to declare any independent crime, unrelated to the case themselves, effectively contributing to the investigation of the crime. On the other hand, in this provision, the circumstance "being recognized by the State and society" is not considered as a crime.