Existing Problems, Limitations and Shortcomings in the Trial of Road Traffic Safety Violations in Quang Ngai Province and Their Causes

69/2012/HSST of the People's Court of Quang Ngai City (Judgment No. 59/2013/HSPT dated January 30, 2013).

Eighth, the penalties for the defendants are mainly fixed-term imprisonment or suspended sentences. The penalties can range from up to 9 years (Judgment No. 59/2013/HSPT); it can be 12 months in prison or 6 months in prison or suspended sentences.

Ninth , in the cases, the court tried the case related to the crime of "allowing an unqualified person to drive a road vehicle " with a penalty of 12 months in prison but with a suspended sentence.

Case: At around 6:00 p.m. on June 23, 2012, Ms. Tran Thi Minh Man told her son Nguyen Nhat Tuan (Tuan was under 18 years old and did not have a driver's license) to drive a motorbike with license plate 76U1-2961 to take Ms. Man to the funeral. Tuan drove to the front of Go Quan market and discovered about 6 meters ahead of him a pedestrian on the pedestrian crossing. Tuan continued driving at normal speed. When he was about 3 meters away from the pedestrian, a car came from the opposite direction with its headlights on. Tuan swerved to the right to avoid the pedestrian and the oncoming car, but because the distance between Tuan's car and the pedestrian was too close, Tuan's left handlebar hit the pedestrian, causing him to fall onto the street. As a result, the pedestrian died at the hospital.

Indictment No. 1288/HSĐT dated November 26, 2012 of the People's Procuracy of Quang Ngai City prosecuted defendant Nguyen Nhat Tuan for the crime of "violating regulations on controlling road vehicles"; Prosecuted Ms. Tran Thi Minh Man for the crime of "Allowing an unqualified person to control a road vehicle" under Clause 1, Article 205 of the 1999 Penal Code.

Maybe you are interested!

In judgment No. 04/2013/HSST dated January 17, 2013, the People's Court of Quang Ngai City sentenced Nguyen Nhat Tuan to 18 months in prison with a suspended sentence. Tran Thi Minh Man to 12 months in prison with a suspended sentence. In addition, the Court did not consider civil compensation because the victim's family did not request it.

2.3. Existing problems, limitations and shortcomings in the trial of road traffic safety violations in Quang Ngai province and the causes of such problems and shortcomings

In the process of trying cases related to road traffic safety violations in Quang Ngai province in recent years, difficulties, problems and shortcomings have also arisen.

2.3.1. Difficulties and obstacles in applying the law in the trial of road traffic safety violations

In the process of prosecuting, investigating and trying criminal cases related to road traffic safety violations, the prosecuting agencies encounter many difficulties and obstacles when applying criminal law provisions.

First, on the application of mitigating circumstances according to Clause 1, Article 46 of the Penal Code:

Currently, some provisions on mitigating circumstances in Clause 1, Article 46 of the 1999 Penal Code still have many different interpretations and there is still no specific guidance document for uniform application.

Specifically, at point p, Article 46 of the 1999 Penal Code "The offender confesses honestly and repents" , there are two different views on this issue:

The first view : holds that in this point p there are two mitigating circumstances, which are the circumstance "The offender honestly confessed", meaning he confessed truthfully and completely about his criminal behavior, about the motive and purpose of committing the crime and the circumstance "The offender repented", meaning the offender realized that his criminal behavior was wrong, felt remorseful and wanted to correct his mistakes.

Second view : holds that point p, clause 1, Article 46 of the 1999 Penal Code has only one mitigating circumstance, because the connotation of the words "sincerely confess" and the words "repent" has only one meaning.

According to the Great Vietnamese Dictionary edited by Nguyen Nhu Y, published in 1999, the explanation is as follows: "thanh than" means being extremely sincere with the hope of success.

want to improve when self-criticizing or accepting criticism; “report” means to tell the authorities about things that are related to oneself or that one knows about; “repent” means to feel remorseful and tormented about mistakes one has made; “repent” means to regret and want to make amends.

On April 9, 2012, the Supreme People's Procuracy issued Official Dispatch No. 994/VKSTC-V3 guiding the application of mitigating circumstances in the Penal Code as prescribed in Points b, p, g, Clause 1, Article 46 of the 1999 Penal Code. However, this document is only intended to provide legal guidance in the sector, so its application is still arbitrary, causing disadvantages to criminals.

On the other hand, Article 46 of the 1999 Penal Code does not provide a concept, but only lists mitigating circumstances. This makes the application of mitigating circumstances arbitrary, leading to inequality among criminals.

In addition, Article 47 of the 1999 Penal Code on deciding on a lighter penalty than that prescribed by the Code stipulates: “ When there are at least two mitigating circumstances prescribed in Clause 1, Article 46 of this Code, the Court may decide on a penalty below the lowest level of the penalty range… ”. This provision has created two different understandings in practical application:

First understanding: assumes that the two details of Clause 1, Article 46 must be two points belonging to Clause 1, Article 46;

Second understanding: it is assumed that only two mitigating circumstances under Clause 1, Article 46 do not necessarily need to be in two different points, the same point can be stipulated to combine many circumstances.

Up to now, there has been no official explanatory document from a competent state agency. Before having an explanatory document from a competent agency, criminal proceedings agencies need to carefully study the structure of the Article and the meaning of each provision to apply it accurately, avoiding cases that cause disadvantages to the offender.

Second, the issue of liability for compensation of damages of the person at fault but deceased:

Compensation for damages is one of the issues that must be resolved in criminal cases related to infringement of human life, health, honor, dignity, property... In cases of the crime of " Violating regulations on controlling road vehicles" stipulated in Article 202 of the Penal Code, there have been many cases where the Court of Appeal has annulled the civil part, due to the incorrect declaration of the subject of compensation for damages.

For example: On July 18, 2014, at the intersection between National Highway 1 and Le Thanh Ton Street, Nghia Chanh Ward, Quang Ngai City. The motorcyclist (Mr. A) was going at a speed exceeding the permitted speed and crashed into the motorcyclist B, causing B to suffer a broken right leg and a head injury, and A died on the spot. The accident occurred due to the fault of motorcyclist A, who died. B was injured, meaning he suffered damage to his health and according to the principles of civil law, in the case of compensation for damages outside the contract, the person at fault for causing the damage must compensate the person who suffered the damage. But the person at fault in the above incident has died, so does the liability for compensation for damages arise if the person causing the damage still has property to inherit?

There have also been some different views on this issue:

First view: It is believed that based on Section I of Resolution 03/2006/NQ-HDTP dated July 8, 2006 of the Council of Judges of the Supreme People's Court, Article 374 of the Civil Code on the basis of termination of civil obligations, Article 604 of the Civil Code on the basis of arising liability for compensation for damages; Article 605 of the Civil Code on the principle of compensation for damages and Article 606 of the Civil Code on the capacity of individuals to be responsible for compensation for damages, there is no basis to exclude liability for compensation for damages for the person causing the damage who is now deceased. Anyone who intentionally or unintentionally violates the

Life, health, honor, dignity, reputation, property, rights, and other legitimate interests of an individual, or infringement of honor, reputation, or property of a legal entity or other entity causing damage must be compensated based on the principle that the damage must be compensated in full and promptly and not in the case of "The obligated party is a deceased individual or a legal entity or other entity that ceases to have the obligation performed by that individual, legal entity, or entity" . Regarding the liability for compensation for non-contractual damage, it arises when there are sufficient grounds: There must be damage, there must be an illegal act, there must be a causal relationship between the damage and the illegal act, there must be a fault (intentional or unintentional) of the person causing the damage. On that basis, Clause 1, Article 637 of the 2005 Civil Code stipulates that "Inheritors are responsible for performing property obligations within the scope of the inheritance left by the deceased, unless otherwise agreed" . Thus, in case the motorcyclist A has an inheritance left behind, and the injured person requests compensation for damages caused by A's fault, B will still be compensated within the value of the inheritance left by A.

Second view : It is assumed that the motorcyclist A is dead, meaning he has no civil capacity when the injured person requests compensation, so civil obligations cannot arise for a person without civil capacity. Thus, in this case, the civil liability of a dead person cannot arise. The inheritance of that person cannot be used to compensate for damages to the injured person.

According to the author, the liability for compensation still arises because this is not an obligation that must be performed by the individual himself. If the person causing the damage still has an inheritance, whether it is a case of inheritance by will or inheritance by law, the property obligations left by the deceased must still be performed and the person suffering the damage can only request compensation within the scope of the inheritance. When

In resolving the case, the court ensures the legitimate rights of the victim's relatives.

Third, on how to identify types of road vehicles:

Clause 17, Article 3 of the Road Traffic Law stipulates: “ Road vehicles include road motor vehicles and rudimentary road vehicles” . Clause 18, Article 3 of this Law stipulates the listing of road motor vehicles. Meanwhile, Clause 21 of Article 3 stipulates: “Vehicles participating in road traffic include road vehicles and specialized motorbikes ”.

The provisions of Article 202 of the 1999 Penal Code are inconsistent with the content of a number of provisions of the Road Traffic Law as well as applicable guidance documents, so in practice there are different views on determining the crime of those who violate the regulations on driving specialized vehicles, such as: Fire trucks; street sweepers; waste suction trucks; mortar mixers; concrete mixers; concrete pump trucks; crane trucks; ladder trucks; drilling trucks; traffic rescue trucks; other specialized vehicles such as mobile television vehicles, mobile television signal measurement vehicles, bridge inspection and maintenance vehicles, underground cable inspection vehicles causing serious consequences.

First view: Article 202 of the Penal Code only regulates and punishes those who drive road vehicles causing serious consequences, and road vehicles must be understood as the type of vehicle specified in Clause 17, Article 3 of the Law on Road Traffic.

Second view : It is believed that regardless of whether the vehicle causing the accident is a motor vehicle, a rudimentary vehicle, or a specialized vehicle, participating in traffic and causing an accident with serious consequences, Article 202 of the Penal Code can be applied to investigate, prosecute, and try. Or in the case of the driver of the vehicle

There are also conflicting opinions on the criminal charges for road traffic offenses that cause serious consequences not only when they participate in traffic on the road (driving in the yard, in the garage, etc.).

Therefore, if the crime name of Article 202 of the 1999 Penal Code is amended to stipulate "Crime of violating regulations on controlling vehicles participating in road traffic", then certainly there will not be the above problems.

Fourth, regarding the regulation of "not having a license or driving license as prescribed" stipulated in Point a, Clause 2, Article 202 of the Penal Code.

In Clause 8, Article 1 of Joint Circular 09/2013/TTLT there are instructions

on the circumstance of no license or Clause 2, Article 202 of the Penal Code.

driving license as prescribed in point a

In practice, the court's adjudication has given rise to problems and difficulties, such as: At the time when the driver of the road vehicle caused the death, he did not have a driving license as prescribed because his driving license and other personal documents had previously been stolen by a thief (with confirmation from a competent authority), when trying, some courts applied the circumstances prescribed in Point a, Clause 2, Article 202 of the Penal Code to the defendant, while some courts did not apply them and only tried him as a violator according to the corresponding clause prescribed by the Law (Clause 1, Article 202).

Thus, in the case where a vehicle driver participating in road traffic has a license or driving license as prescribed but the license or driving license has been lost, the prosecuting agency must verify whether they have a license or driving license as prescribed or not. If the loss of their license or driving license is true, they should only be prosecuted and tried as violators according to the corresponding clause prescribed by the law (Clause 1, Article 1).

202) is most suitable.

Fifth, regarding the case where the subject commits " a crime while under the influence of alcohol or beer..." according to point b, clause 2, Article 202 of the 1999 Penal Code.

According to the provisions of Article 8 of the Road Traffic Law, drivers are prohibited from using stimulants: "It is prohibited to drive when the blood alcohol concentration exceeds 50 milligrams/100 milliliters of blood or 0.25 milligrams/01 liter of breath or there are other stimulants prohibited by law" (Clause 7 and Clause 8, Article 8).

However, Point b, Clause 2, Article 202 of the 1999 Penal Code stipulates the crime of " in the state of using alcohol or beer with the alcohol concentration in the blood or breath exceeding the prescribed level or using other strong stimulants prohibited by law " but does not specify the specific quantity.

In practice, the prosecuting agencies are not fully equipped with specialized equipment to measure the concentration of these substances in the blood of violators, so even though it is determined that the defendant was drinking alcohol at the time of the crime, it is necessary to amend the Penal Code and the Road Traffic Law to unify them.

Sixth, it is difficult to apply point c, clause 2, Article 202 of the Penal Code on "causing an accident and then fleeing to evade responsibility".

In fact, there are cases where people run away because their lives are threatened but they go to the nearest police station to report, which is also running away but not to avoid responsibility. Therefore, in this situation, the offender has no intention of avoiding his responsibility, but only wants to run away from the scene to avoid threats from the victim's family or others. This situation needs to be clearly explained as to what is considered running away to avoid responsibility.

2.3.2. Shortcomings and shortcomings in the Court's adjudication of road traffic safety violations

First, the first instance criminal judgment was overturned due to serious violations of the law in the assessment of evidence and testimony in the case.

Case: At 8:00 p.m. on February 14, 2011, Pham Ngoc Tuan, born in 1989 (in Ba To district, Quang Ngai) drove a motorbike with license plate 76V7-

Comment