From 1985 to Before the Codification of the Criminal Code in 1999.

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We do not have a complete criminal code. We must base ourselves on existing laws, general policies, case law, and our experience to correctly determine the nature and level of harm of crimes "  4, p.76  .

Through this Summary, it can be seen that the decision on punishment has been based on certain grounds. That is, based on the "nature and level of danger of the crime"; based on "the offender (age, nature, whether or not he has a criminal record, the ability to reform, achievements...); based on "existing laws, general policies, precedents, experience". From these grounds, comparing with the grounds for deciding on punishment stipulated in Article 45 of the 1999 Penal Code, it can be observed that:

+ The basis of “nature and level of harm of the crime” can be considered as corresponding to the second basis of Article 45 of the 1999 Penal Code. The difference here is only in the way of expression and for the second basis of Article 45 of the 1999 Penal Code, the law only requires “consideration” when deciding on the penalty.

+ The basis of “criminal” is also considered to correspond to the third basis of Article 45 of the 1999 Penal Code. Although the basis of “criminal” has pointed out the characteristics of the criminal’s personality (age, nature, whether or not he has a criminal record, the ability to reform, achievements...), the concept of “criminal personality” has not been used in criminal law. This is a limitation because we do not have the conditions to conduct in-depth research on science.

criminal law. As for the third basis of Article 45 of the 1999 Penal Code, the law only requires “consideration” when deciding on punishment.

+ During this period, because we have not yet built a Penal Code, basing on “existing law” is completely appropriate and ensures legality. Therefore, this basis is also considered to correspond to the first basis of Article 45 of the 1999 Penal Code. Because there is no Penal Code and the country is in a state of war, it is inevitable to “base on general policies, precedents, and experience” when considering penalties. The summary also clearly stated: “ b) Considering penalties must be in accordance with policies and laws... This is clearly not a matter of half a pound, eight ounces, meaning that there is not a number of very detailed fixed penalties that can be applied to any case that occurs in reality; Punishment must be consistent with policy, must have a political and strategic character ... Resolutely punishing when necessary and resolutely not imprisoning when necessary, those two things are not contradictory... And only by doing so can the law be applied correctly, meaning following not only the written provisions but also the ideology and policy content of the law "  4, p.76  .

Since the 1985 Penal Code, “general policies, precedents, and experience” have no longer been identified as the basis for deciding on penalties. This is because policies are not recognized as a source of law, and if precedents and experience are based on them, it is likely to lead to subjectivity and arbitrary decisions on penalties. On the other hand, we only base ourselves on precedents and experience in deciding on penalties when we do not have a complete Penal Code. However, in our opinion, the construction and proper application of precedents in deciding on penalties still has certain effects and should be studied.

In general, this Summary has recorded quite fully the bases for deciding on punishment, ensuring that "... punishment is not only to punish criminals. It also aims to educate and reform prisoners about the sense of respect for

law and prevent others from committing crimes, educate others ”  4, p.36  . The limitation of this Summary is that it does not clearly show the basis for “mitigating and aggravating circumstances of criminal responsibility” but only records the same “ based on the offender... and the case of increasing or decreasing the crime… ”. However, it can be affirmed that when deciding on the penalty, the Courts have based on mitigating and aggravating circumstances of criminal responsibility. The 1962 work summary report of the Supreme People's Court stated: “... and the Courts have relied on socialist legal awareness, paying attention to the nature and level of danger of the crime, to the personality of the defendant, to the aggravating and mitigating circumstances ... to determine the sentence ”  4, p.76  . Later, aggravating and mitigating circumstances were officially recorded in the ordinances on a number of specific types of crimes that the Courts had to base on to determine the sentence within a penalty framework. These were the Ordinance dated October 30, 1967 on punishing counter-revolutionary crimes, the Ordinance dated October 21, 1970 on punishing crimes against socialist property, the Ordinance dated October 21, 1970 on punishing crimes against private property of citizens  4, pp. 104-105  . The regulation of aggravating and mitigating circumstances in these ordinances not only helps the Court to determine the correct sentence for the crime and the law, but also ensures the correct policy, actively contributing to the fight against crime.

On the basis of the grounds for the Court to consider the above mentioned sentences, the Supreme People's Court has made assessments, drawn experiences and given instructions to ensure the correct application of these grounds in practice. The Supreme People's Court's 4-year work summary report (1965 - 1968) through assessing the mistakes that occurred in the field of sentencing decisions such as " punishing too lightly due to only basing on the small material harm, or only seeing the material harm, the immediate harm without seeing the political harm, the long-term harm of the illegal act, or due to excessive consideration of the good character of the defendant... On the contrary, punishing too heavily due to one-sided emphasis on the defendant's bad background, on the political requirements of the locality ..." has directed: "... it is necessary to resolutely

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overcome the phenomenon of deviation or excessively heavy reliance on the defendant's personal background or overly one-sided emphasis on the wartime situation and local political requirements to arbitrarily condemn. It is necessary to see that good or bad personal background is only a basis for sentencing, the main basis is the nature and severity of the illegal act. Local political requirements need to be respected but cannot be separated from the general policy and that issue only makes the sentence go up or down somewhat but cannot fundamentally change it. The requirement for strict punishment in wartime is to a certain extent, within a certain penalty framework that has been summarized and proposed through trial practice. It is still necessary to base on the nature and seriousness of the crime, the defendant's criminal consciousness, the level of harm caused by the illegal act combined with other aspects such as good or bad personal background, local political requirements and the requirements of fighting against counter-revolutionaries in wartime to decide on the correct punishment"  4, pp.77-78  .

Thus, this Summary Report has once again affirmed the bases for deciding on penalties, in which “the nature and severity of the crime” is the main and most important basis. The above very specific instructions and directions have demonstrated the legal value, practicality and high scientific nature of the Summary Report. They not only help the Court to accurately assess the sentence, contributing to resolving criminal cases in accordance with the right guidelines and policies, but also serve as a basis for continuing to perfect and correctly apply the bases for deciding on penalties until the first Penal Code in 1985.

2.1.2. From 1985 to before the codification of the Penal Code in 1999.

With the birth of the Penal Code in 1985, for the first time, the bases for deciding on penalties were officially regulated in Article 37 with the title: " Principles for deciding on penalties "  1, p.27  . According to the provisions of the Article, when deciding on penalties, the Court shall base on: the provisions of this Code, consider the nature and level of danger of the crime, and the personality of the offender.

and mitigating or aggravating circumstances of criminal responsibility. It can be said that the content of Article 37 is the inheritance based on the completion of the provisions of Vietnamese criminal law on the basis of deciding on penalties from 1945 to this period. The regulation of the basis for deciding on penalties in the Penal Code will ensure that the decision on penalties is implemented accurately and consistently nationwide. However, through comparing the content with the title of Article 37 of the 1985 Penal Code, it can be seen that the identification of "principle of deciding on penalties" with "basis for deciding on penalties" by lawmakers is not really scientific and not accurate.

Vietnamese criminal law has a system of general principles to guide all activities of building and applying criminal law. Therefore, as an activity of applying criminal law, the decision on punishment must be influenced and governed by the general principles of criminal law. However, in order to accurately decide on punishment for convicted criminals, the general principles of criminal law must be concretized into specific principles to guide the activity of deciding on punishment. These principles are more detailed than the general principles of criminal law and have specific characteristics for the activity of deciding on punishment. Based on the concept of principles of criminal law  21, p.64  , the concept can be given as:

The principles of deciding on punishment are specific guiding ideas in the application of criminal law norms by the Court (Trial Council) to ensure that punishment is correctly decided for convicted criminals .

This concept has shown that the principle of deciding on punishment and the basis for deciding on punishment are two different concepts. The principle of deciding on punishment is a specific guiding ideology that the Court must follow when applying criminal law norms to deciding on punishment. Although not specifically stipulated in the law, through the content of the

Criminal law norms, it can be pointed out that the current principles for deciding on punishment include: the principle of socialist legality, the principle of socialist humanity, the principle of fairness, the principle of individualizing punishment. The basis for deciding on punishment is the specific requirements stipulated by the Penal Code, forcing the Court to rely on when deciding on punishment: the provisions of the Penal Code, the nature and level of danger of the crime, the personality of the offender and the mitigating or aggravating circumstances of criminal responsibility.

Although the principles of deciding on punishment and the basis for deciding on punishment both exist objectively, there is always a dialectical relationship between them. It can be said that it is the relationship between the general (the principles of deciding on punishment) and the particular (the basis for deciding on punishment). The principles of deciding on punishment are the ideas originating from the bases for deciding on punishment. In other words, the bases for deciding on punishment are the concrete manifestations of the principles of deciding on punishment. Full and correct compliance with the bases prescribed by the Penal Code in the process of deciding on punishment is to respect and implement in practice the principles of deciding on punishment. Thus, through the bases for deciding on punishment, the principles of deciding on punishment demonstrate their existence. On the contrary, the bases for deciding on punishment cannot exist completely independently but must be in connection with the principles of deciding on punishment. That is, the bases for deciding on penalties are always subject to the control and influence of the principles for deciding on penalties. No matter how the bases for deciding on penalties are specified and applied, they must not be contrary to or go beyond the scope of the principles for deciding on penalties. Therefore, when deciding on penalties, the Court must not only rely on the bases for deciding on penalties but must also comply with the guiding ideas of the principles for deciding on penalties. Only then can we ensure that the activities of deciding on penalties are correct and legal.

From the above analysis, we affirm that we cannot identify

The concept of “principle of deciding punishment” with the concept of “basis for deciding punishment”. The fact that the legislator amended the title of Article 37 of the 1985 Penal Code to “Basis for deciding punishment” in Article 45 of the 1999 Penal Code to match the content of the article not only proves the above assertion but also clearly demonstrates the level of development of criminal legal science.

2.2. Provisions of the 1999 Penal Code on the grounds for deciding on penalties .

The first-instance trial of a criminal case is the central and decisive stage of the criminal proceedings. The essence of this stage is that the Court, through examining and evaluating all evidence, based on the results of interrogation, democratic debate and compliance with the provisions of the current Penal Code, determines whether a person's socially dangerous behavior is a crime or not. And if a crime is committed, the Court, on behalf of the Socialist Republic of Vietnam, selects the specific type and level of punishment, appropriate to the nature and level of danger to society of the crime, to sentence and force the offender to strictly comply.

Thus, the first-instance trial of criminal cases by the Court is only considered to be in accordance with the law, ensuring seriousness and fairness when correctly determining the crime and the penalty; choosing the appropriate type and level of penalty to apply to the convicted person. Any mistake in resolving the issue of crime or penalty will lead to unpredictable consequences for the offender and society. In principle, if the crime is determined incorrectly, it will lead to the wrong decision on the penalty (in terms of penalty framework, type and level). But even in the case of correct crime determination, the wrong decision on penalty is still possible. This situation has many causes such as the decision on penalty only reflects the subjective will, strongly influenced by the emotional factor of the decision maker... but mainly due to incorrect application of the basis for deciding on penalty. Therefore, deciding on the right or wrong penalty is closely related to compliance with the basis for deciding on penalty. That has affirmed the position and role of the bases for deciding on punishment.

especially important for the sentencing activities of courts at all levels.

Therefore, in order to ensure the quality and effectiveness of the decision on penalties, and to minimize the violation of human rights in the field of criminal justice, Article 45 of the 1999 Penal Code stipulates the grounds for deciding on penalties that the Court must rely on when deciding on penalties. Only when fully and strictly complying with these legal grounds can the Trial Panel decide on penalties in accordance with the law, in accordance with the nature and level of danger to society of the criminal act, as a premise for achieving the purposes of penalties. According to the provisions of Article 45 of the 1999 Penal Code, the grounds for deciding on penalties include:

+ Provisions of the Penal Code;

+ The nature and level of danger to society of the criminal act;

+ Criminal's identity;

+ Mitigating and aggravating circumstances of criminal liability.

Each of the above bases for deciding on punishment are objective factors, with specific content and requirements and are relatively independent for the Court to rely on when deciding on punishment. However, that does not mean that when deciding on punishment, the Trial Panel applies each basis independently or equates them, but must see the close connection, complementarity and mutual support between the bases. Independence is the basis for the existence of each basis and is also the basis for correctly applying the bases for deciding on punishment, ensuring the objectivity and fairness of the penalty decision activity.

Compared with Article 37 of the 1985 Penal Code, the bases for deciding on penalties in Article 45 of the 1999 Penal Code are basically maintained, except for the fourth basis on mitigating and aggravating circumstances of criminal responsibility, which has been amended to better meet the requirements of the fight against crime.

2.2.1. Pursuant to the provisions of the Penal Code .