Fines under Vietnamese criminal law from the practice of Da Nang city

Fines prescribed in Clause 1, Article 30 of the Penal Code for some specific crimes and the shortcomings of this penalty , People's Court Magazine (15)/2006; Perfecting the provisions of the current Penal Code on main penalties lighter than imprisonment , People's Court Magazine (19)/2008; Dr. Trinh Quoc Toan, On fines in criminal law of some countries in the world , State and Law Magazine (7)/2003; Dr. Trinh Tien Viet, Some new issues on fines in the 1999 Penal Code , People's Court Magazine (7)/2003; Do Van Chinh, Fines and practical application , People's Court Magazine (3)/2009; Nguyen Hoang Lam, Some theoretical issues on fines , People's Court Magazine (8)/2009, Ly Van Tam, Some opinions on fines according to the provisions of the 1999 Penal Code , Inspection Magazine (4)/2013; Ha Tuan Phuong, How to make a decision to execute the sentence for the summary of fines , Democracy and Law Magazine. Ministry of Justice, No. 11/2008; Le Tuong Vy, Strengthening fines for crimes of property appropriation in the Vietnamese Criminal Code , People's Court Magazine, Supreme People's Court, No. 7/2015...

The above scientific works have studied issues related to the theory and practice of fines and have drawn valid conclusions and useful recommendations to improve the effectiveness of punishment in general and fines in particular in the fight against crime. These are important theoretical foundations that the author can inherit in his research work. However, up to now, there has not been any work approaching the study of fines from the practice of Da Nang city. Therefore, it can be said that this is the first work approaching the practice of applying fines in Da Nang city to further explore the theory and practice of applying fines according to Vietnamese criminal law.

3. Research purpose and tasks

3.1. Research purpose

Through the study of theoretical issues on fines; the provisions of positive law on fines, comparing with the practical application of this penalty in Da Nang city to evaluate the effectiveness of applying this penalty in practice, from there the thesis aims to propose recommendations and solutions to improve the provisions of positive law and improve the effectiveness of fines.

Maybe you are interested!

fines in the penal system and in the fight against crime.

3.2. Research tasks

To achieve the above purpose, the thesis needs to perform the following tasks:

- Clarifying some theoretical issues on fines according to the provisions of the current Penal Code.

- Research and evaluate the practical application of regulations on fines from the practice of Da Nang city in the period from 2011 to 2015, at the same time analyze and reveal the existing problems and limitations surrounding the application and its causes;

- Propose solutions to improve the regulations on fines in the current Penal Code and improve the effectiveness of applying this penalty in trial practice in Da Nang city in particular and the whole country in general.

4. Research object and scope

4.1. Research subjects

The thesis researches the theory and practice of applying fines in Vietnamese criminal law from the practice of Da Nang city.

4.2. Scope of research

The thesis studies and solves theoretical issues on fines in Vietnamese criminal law as both a main penalty and a supplementary penalty, combined with an assessment of the application of fines in trial practice in Da Nang city, pointing out the shortcomings, limitations, causes of those shortcomings and limitations, and at the same time proposing solutions and recommendations to perfect the positive law and improve the effectiveness of applying fines in practice.

The thesis also refers to the regulations on fines of some countries in the world.

Regarding time and space: The thesis studies the practical application of fines in Da Nang city for 5 years (2011 - 2015).

5. Methodology and research methods

5.1. Methodology

The topic is carried out on the basis of historical materialism and dialectical materialism methodology of Marxism-Leninism, Ho Chi Minh's thought on the State.

and the law, the viewpoints of our Party and State on building a rule-of-law state, on criminal policy, on judicial reform are expressed in the Resolutions of the Party Congresses and Resolutions No. 08-NQ/TW dated January 2, 2002 and Resolution No. 49-NQ/TW dated June 2, 2005 of the Politburo.

5.2. Research methods

In the process of researching the topic, the author of the thesis used specific and specific methods of criminal law science such as: Summary of practices, statistics, synthesis, analysis, comparison, experts, specific history... to reveal the research object of the topic. Specifically:

+ Expert method, comparison to see different views on some theoretical issues about fines; see the process, history of legislation on fines in our country and compare with regulations on fines of some countries in the world.

+ Summary of practical application of fines in Da Nang city from 2011 to 2015.

+ Statistics, comparison, analysis of data related to the application of fines in Da Nang city from 2011 to 2015.

+ Study typical judgments that apply fines as the main or additional penalties, thereby pointing out the shortcomings and limitations of positive law and law enforcement; propose and recommend solutions to improve legal regulations on fines and improve the effectiveness of applying this penalty in law enforcement practice.

6. Theoretical and practical significance of the topic

6.1. Theoretical significance

Although limited, the scope of the topic only studies the practical application of fines in a narrow area, which is a difficult content because the level of generalization will not be high. However, in specific conditions, the author also tried to discover the general theoretical issues, the core of the basic characteristics of fines, the common shortcomings and limitations not only in Da Nang city, thereby recommending and proposing solutions to improve the positive law and improve the effectiveness of applying this penalty not only in Da Nang city but also in the whole country in general.

6.2. Practical significance

- The thesis contributes to enriching the theory of fines in Vietnamese criminal law.

- The research results of the topic can be used as reference materials in teaching and learning at law schools.

- The recommendations and solutions proposed in the thesis, if applied, will bring positive effects, contributing to the improvement of positive law, improving the effectiveness of monetary penalties in the practice of investigation, prosecution, trial and execution of judgments by the agencies conducting proceedings and the persons conducting proceedings such as: Investigation agencies, People's Procuracy, People's Court, civil judgment enforcement agencies, investigators, prosecutors, judges and bailiffs...

7. Structure of the thesis

In addition to the introduction, list of references, appendix, the thesis consists of three chapters:

Chapter 1 : Some theoretical issues and historical legislation of Vietnam on punishment

money.

Chapter 2 : Provisions of the 1999 Penal Code on fines.

Chapter 3 : Practical application of fines and some solutions to ensure

apply the correct fine.

CHAPTER 1

SOME THEORETICAL AND HISTORICAL ISSUES OF VIETNAMESE LEGISLATION ON MONEY PENALTIES

1.1. Concept, purpose and meaning of fines

1.1.1. Concept of fine

In the history of Vietnamese criminal law, the penal system and the criminal system are the most important systems of Vietnamese criminal law. To clarify the concept, purpose and meaning of fines, it is necessary to first clarify the concept, purpose and meaning of punishment in general.

The 1985 Penal Code as well as previous criminal law documents do not have a legal concept of punishment, but in the research works of scientists and training institutions, there are many viewpoints on the concept of punishment. Some of the following viewpoints can be cited:

“Punishment is the most severe measure of State coercion prescribed in the criminal law applied by the Court to the person who committed the crime in order to punish and reform them, contributing to the fight against crime, protecting the regime and social order as well as the legitimate rights and interests of citizens.” [18, p. 271]. This viewpoint has integrated the purpose of punishment into the conceptual content of punishment but has not yet pointed out the attributes, nature and content of punishment as the most severe measure of State coercion. It is unnecessary to assume that punishment is applied to the person who committed the crime, it is enough to state that it is applied to the offender or the convicted person. It is unnecessary to assume that punishment is aimed at… protecting the regime and social order as well as the legitimate rights and interests of citizens because this is the general task of the Criminal Code.

“Punishment is a coercive measure decided by the Court in the verdict against the person at fault in committing a crime and is expressed in the deprivation or restriction of the rights and benefits prescribed by law for the convicted person.” [58, p.194] . The advantage of this point of view is the concise concept, indicating the attributes and content of punishment as deprivation or restriction of rights and benefits for the convicted person.

However, this view also holds that the punishment applied to the person at fault in committing the crime is too long and that it is more general to just state whether it is for the convicted person or the offender.

“Punishment is a measure of State coercion applied by the Court to a person who commits a crime according to the provisions of the criminal law, depriving or restricting certain rights and interests of the convicted person for the purpose of educating and reforming the offender to prevent them from committing new crimes.” [27, p.23] .

“Punishment is a measure of State coercion prescribed by criminal law and applied by the Court, which aims to deprive or restrict the rights and interests of criminals, in order to punish and educate them as well as to educate others to respect the law, fight against and prevent crime.” [23, p.64].

Both of the above viewpoints point out the attributes and content of punishment as depriving or restricting the rights and interests of the offender, pointing out that the subject of punishment is the offender, pointing out that the competent authority to apply punishment is the Court and the punishment must be prescribed in the law, but the above viewpoints all incorporate the purpose of punishment into the concept of punishment, which is unnecessary.

“Punishment is the most severe coercive measure of the State to deprive or limit the rights and interests of criminals. Punishment is stipulated in the Penal Code and decided by the Court” [1] . The author's viewpoint is consistent with the concept of punishment as stipulated in the 1999 Penal Code.

Although there are many different views and concepts about punishment, it is possible to point out some basic characteristics and features of punishment. These are:

- Punishment is the most severe measure of State coercion in the system of coercive measures. Punishment can only be applied to people who commit crimes. Punishment must be prescribed in the Penal Code. Punishment must be decided by the Court according to a separate procedural order.

* The same goes for fines. Up to now, there has not been an official legal definition of fines in criminal law documents from a positive law perspective.

Fines are called “amende” in French and “geldstrafe” in German.

The English word is “fine” and the Arabic word is “diya” and it is expressed in “Fridensgeld” or “argent de la paix”, which means a certain amount of money that the offender must pay to the community to restore peace through a judicial decision of the judge [53, p.63].

From the perspective of criminal law science, in textbooks and specialized legal books and newspapers, there are many different concepts of fines. Some of the following viewpoints can be pointed out:

“ A fine is a type of penalty applied as a main penalty or an additional penalty, when the main penalty is another type of penalty. A fine is decided by the Court in cases prescribed by law, in which the convicted person is deprived of an amount of money depending on the seriousness of the crime, while taking into account the convicted person's property situation and price fluctuations” [45, p.11]. This definition is too long, too detailed, and it is unnecessary to include the role and position of a fine in the penal system, as well as the basis and conditions for deciding on a fine in the concept.

“A fine is a punishment that does not deprive people of freedom, lighter than a non-custodial reform punishment, forcing the convicted person to pay a certain amount of money to the state treasury” [22, p.51] . Similar to the above, this definition has included the position of a fine as the main punishment in the penal system into its concept and argues that a fine is a punishment that does not deprive people of freedom, which is unnecessary.

“A fine is a punishment that deprives the offender of a certain amount of money and transfers it to the state treasury” [19, p.195].

Basically, the above views on fines are in agreement that they all mean “ deprivation of a certain amount of money ”, but these concepts are not really consistent with a legal concept. The terms “ offender” and “ convicted person ” are used inconsistently, although they are both used to refer to the subject of a fine. In the author’s opinion, it would be more accurate to use the term “ convicted person ” instead of the term “ offender ” in the concepts of fines. Because only the convicted person is subject to the penalty, and the offender is only subject to the penalty if convicted according to a legally effective judgment of the Court.

Through studying the above views on fines, a definition can be made.

The short meaning is as follows: "A fine is a punishment that deprives the convicted person of a certain amount of money to the state treasury." This is a short concept that reflects relatively fully the characteristic signs as well as the legal content of a fine.

As a penalty in the system of penalties prescribed in the Vietnamese Penal Code, a fine has all the typical characteristics of a penalty as a criminal sanction, and also has its own specific characteristics. Specifically:

Firstly , fines are one of the most severe coercive measures of the State. Compared with fines prescribed in other coercive measures of the State, fines as a penalty prescribed in the Penal Code are the most severe coercive. The nature, content and legal attributes of fines are reflected in the fact that they deprive the offender of a certain amount of money, which means directly limiting the material benefits of the offender, thereby deterring and educating the offender, preventing them from committing new crimes, and at the same time fighting against crime in general. People sentenced to fines must also bear the consequence of having a criminal record for a certain period of time. The minimum and maximum fines in the Penal Code are also higher than the provisions on fines in other coercive measures of the State.

Second , fines must be stipulated in the Penal Code. Like other types of penalties in the criminal law, fines must be stipulated in criminal law documents, specifically the Penal Code. In the 1999 Penal Code, fines are stipulated in both the General Part and the Crimes Part. The General Part stipulates the conditions, contents, scope, principles of application of fines and other provisions related to fines and methods of enforcement of fines. The Crimes Part stipulates fines as the main penalty or additional penalty for specific crimes.

Third , the fine must be decided by the Court against the offender in a separate procedure. According to the provisions of law, the Court is the only agency with the authority to apply penalties on the behalf of the State to the offender. The application of penalties to the offender by the Court must strictly comply with the procedures prescribed in the Criminal Procedure Code.

Fines under Vietnamese criminal law from the practice of Da Nang city - 2

Comment