2) The second principle - a minor can be exempted from criminal liability if he/she commits a less serious crime or a serious crime, causes little harm, has many mitigating circumstances and is supervised and educated by his/her family or an agency or organization . This is a principle that demonstrates special leniency and humanity - exempting criminal liability for minors who commit crimes and are subject to the criminal liability exemption regime. The political, social and legal meanings of the criminal liability exemption regime are reflected in the fact that: This is a regime that reflects the humane policy of our State towards criminals and the acts they commit, at the same time aiming to motivate and encourage them to make meritorious contributions to atone for their crimes, demonstrate their ability to be educated, reformed quickly, reintegrate into the community and become useful people to society. The provision in the Vietnamese Penal Code of this institution demonstrates the correct principle of criminal handling - ensuring a harmonious combination between the State's most severe criminal enforcement measures and other social impact measures to reform and educate criminals, thereby limiting the application of criminal repression (punitive) measures [77, p. 9].
Along with eight other cases of exemption from criminal liability (Article 19, Article 25, Clause 3, Article 80, Paragraph 2, Clause 6, Article 289, Clause 6, Article 290 and Clause 3, Article 314), the legislators have clearly divided the Criminal Code into mandatory and optional cases of exemption from criminal liability. As an optional case , the application or non-application of exemption from criminal liability depends on the decision of competent criminal justice agencies depending on the corresponding stage of criminal proceedings, based on the actual situation of the case, on the requirements of the fight against crime, on the ability to reform and educate juvenile offenders in a normal social environment with the education and supervision of the family or the corresponding competent agency or organization, as well as the personal background of the offender himself.
minors who commit such crimes. Thus, specific conditions that may exempt them from criminal liability include:
First , the offender is a minor. The concept of " juvenile offender " includes those aged 14 and over but under 18 who commit socially dangerous acts as prescribed in the Penal Code.
Second , the crime committed by a minor must be a less serious crime or a serious crime that does not cause great harm. Accordingly, the 1999 Penal Code provides in a more favorable way for minors who commit crimes, making the scope of minors who can be exempted from criminal liability wider than the 1985 Penal Code. In addition, this condition also includes a content that the crime must not cause great harm.
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Third , minors must have many mitigating circumstances. Mitigating circumstances are a legal category set forth to determine the reduction of the criminal liability of the offender and the social danger of the crime. The law requires that the offender must have at least two or more mitigating circumstances. These circumstances may be stipulated in the Code (Clause 1, Article 46), in documents guiding the application of the law [64] or considered by the Court in each specific case and clearly stated in the judgment.
Fourth , minors are supervised and educated by their families or social agencies and organizations. Minors are decisively influenced by their living environment. The family is the cell of society, the place where people live, grow up, develop and perfect their personalities. For minors, the family is a warm home, a favorable environment for them to study, cultivate and practice morality. Therefore, the family of a minor takes responsibility for supervision and education or the agency or social organization
If a reputable agency undertakes to supervise and educate a juvenile offender, it is also necessary to create opportunities for the family, agency or organization to assist and undertake the education and rehabilitation of the juvenile offender, contributing to the socialization of the education of the juvenile offender. However, the agencies conducting the proceedings also need to carefully consider the living environment in the family as well as in the agency or organization that will undertake to supervise and educate the juvenile offender because it has a decisive meaning in determining whether the juvenile can become a good person or not.
In addition, Clause 2, Article 69 of the 1999 Penal Code has overcome an unreasonable point in the 1985 Penal Code: Previously, the Code (Article 59) only stipulated the authority to decide to exempt criminal liability for minors who committed crimes when the conditions prescribed in the Code were met for only one agency, the People's Procuracy. In Clause 2, Article 69 of the 1999 Penal Code, the authority to decide to exempt criminal liability belongs to the agencies conducting the proceedings depending on the corresponding stages of the proceedings (Investigation agencies with the approval of the Procuracy, the Procuracy and the Court).
3) The third principle - the prosecution of juvenile offenders and the application of penalties to them are carried out only when necessary and must be based on the nature of the crime, on personal characteristics and the requirements of crime prevention. Accordingly, the content of this principle of handling juvenile offenders also demonstrates profound humanity. This means that not all cases of juvenile offenders are prosecuted for criminal liability. Criminal prosecution is only imposed when it is really necessary and even when juveniles commit crimes and are prosecuted, they still have the possibility of not being punished.
4) The fourth principle - if it is deemed unnecessary to apply punishment to a minor who commits a crime, the Court shall apply one of the judicial measures - education at the commune, ward, town or sending him to a reformatory school . In particular, in order to increase the ability to apply punishments other than imprisonment, limit the application of imprisonment, and at the same time amend and supplement the principles of handling minors who commit crimes in the direction of adding some principles of handling minors that have been recognized in the Convention on the Rights of the Child and other international standards, the Law amending and supplementing a number of articles of the Penal Code dated June 19, 2009 of the National Assembly has added in the direction of emphasizing the content " When applying punishment to minors who commit crimes, it is necessary to limit the application of imprisonment ". This additional provision opens up the possibility for minors who commit crimes to be able to reform themselves and educate themselves in society early to become useful people for their families and communities. To realize this, they can instead be subject to judicial measures if these measures have been effective enough to reform them into useful citizens for society in the future, as well as prevent crime.
5) The fifth principle - no life imprisonment or death penalty shall be imposed on juvenile offenders. No additional penalties shall be imposed on juvenile offenders. No fines shall be imposed on juvenile offenders between the ages of 14 and under 16. When imposing a term of imprisonment, the Court shall give juvenile offenders a lighter sentence than that applied to adults who commit the corresponding crime. Life imprisonment or death penalty are extremely severe penalties, applied only to cases of particularly serious crimes. According to the first principle, the handling of juvenile offenders is mainly aimed at educating and reforming them. Therefore, these severe penalties cannot be applied to them.
These humanitarian contents are applied by the Court in the process of trying juvenile offenders, not applying additional penalties to them.
with minors who commit crimes equivalent to those of adults and are sentenced to fixed-term imprisonment, the penalty applied to them must be lower than that applied to adults.
6) The sixth principle - sentences imposed on juveniles who commit crimes before the age of 16 are not taken into account in determining recidivism or dangerous recidivism. This principle not only demonstrates the humanity and leniency in the criminal policy of our State towards juvenile offenders, but also creates conditions for juveniles to reintegrate into the community, develop healthily physically and mentally, as well as avoid the juvenile's own guilt complexes and the unsympathetic and prejudiced views of society towards that person later when he or she becomes an adult.
In summary , the provisions of Article 69 and Chapter X of the Penal Code clearly demonstrate the humanitarian principle of Vietnamese criminal law, demonstrating the State and society's trust in the ability of each juvenile offender to actively reform, educate, correct mistakes, develop healthily and become a useful person for his or her family and society in our regime.
1.2. General issues on penalties and judicial measures applied to juvenile offenders
Analysis of the provisions of the current 1999 Penal Code shows that Vietnamese lawmakers recognize the following system of criminal liability - criminal enforcement measures: 1) The most severe criminal enforcement measures - main penalties and additional penalties (Articles 29-40); 2) Other criminal enforcement measures (less severe than penalties) include: a) General judicial measures (Articles 41-44);
b) Exemption from punishment (Article 54) and; 3) Judicial measures of an educational nature for juvenile offenders - measures alternative to punishment (Article 70) [8, p. 615].
However, the most severe criminal coercive measures also include penalties for juvenile offenders (although four of them are applied in the same way as for adults), with a less severe level of repression (coercion) than for adults, but because the penalties are still the most severe among the criminal sanctions recognized by the State in the Penal Code. Therefore, it is necessary to analyze the concept and basic characteristics of penalties and judicial measures applied to juvenile offenders, thereby clarifying the State's criminal policy reflected through criminal sanctions applied to a specific type of subject with distinct psychological and physiological characteristics - juveniles.
1.2.1. Concepts and basic characteristics of penalties applied to juvenile offenders
In 1999, with the second codification of Vietnam's criminal law - with the adoption of the new Penal Code, the concept of punishment was recognized for the first time in the Penal Code, marking progress in the criminal legislation activities of our State, in addition to recognizing the concept of crime.
The regulation of punishment in criminal law originates from the principle of criminal responsibility for socially dangerous acts recorded in the Penal Code with the content: " Punishment is the most severe coercive measure of the State to deprive or limit the rights and interests of the offender. Punishment is prescribed in the Penal Code and decided by the Court ". Thus, punishment is the most severe criminal coercive measure applied to the individual (himself) who commits a crime. One of the basic principles when deciding on punishment in criminal law is the principle of individualization of criminal responsibility, so punishment is only applied to the individual who commits the crime. " Only
"Anyone who commits a crime prescribed by the Penal Code must bear criminal responsibility " (Article 2). Accordingly, the basic provisions of criminal responsibility as stated above are the expression of the principles of legality and fairness of Vietnamese criminal law. With legality, - is the expression of the sole, clear and definitive basis of the content "... committing a crime prescribed by the Penal Code ..." of criminal responsibility, and with fairness, - means ensuring equal equality in assessing the criminal acts of criminals, equality before the law for everyone with the content " anyone ..." means no one in society is excluded [80, pp. 1-2]. Regarding this, C. Marx wrote: "... in the eyes of the criminal, punishment must be the inevitable result of the act by that person - therefore must be the act of that person. His limit must be the limit of punishment..." [34, p. 169]. Therefore, only the offender must suffer punishment and the punishment only applies to himself, the punishment cannot be applied to other people, his relatives, even in cases where these people voluntarily ask to serve the punishment instead of the offender, or even in cases where the offender evades the punishment.
The most severe nature of the punishment is shown in the fact that, in addition to being deprived or restricted of rights and benefits, the person who commits the crime and (if) is subject to the punishment must also bear a criminal record - this is a particularly severe legal consequence that is higher than other forms of legal responsibility. In particular, if the death penalty is applied, the offender will be deprived of his or her right to life .
Punishment can only be recognized and approved by the State, whose representative agency is the National Assembly, and its form is prescribed in the Penal Code. The principle of legality in Vietnamese criminal law is shown in the fact that - apart from the Penal Code, there is no law or legal document that prescribes crimes and penalties, and therefore, only those who commit a crime have been
Only those who are prescribed by the Penal Code must bear criminal responsibility (and punishment - depending on each specific case). In other words, "legality is the sacredness of the law, the sustainability of legal norms... Legislation has a close relationship with the law, with equality and with compliance with the law, no one, no person has any privilege before the law..." [1, pp. 100-102].
When prescribing penalties in the Penal Code, our country's lawmakers also determined the purpose of applying penalties, accordingly, penalties are not only aimed at punishing criminals but also educating them to become useful people for society, consciously obeying the law and the rules of socialist life, preventing them from committing new crimes. Punishment also aims to educate others to respect the law , improve the effectiveness of the fight against crime . However, in the current stage of building a rule-of-law state in Vietnam, the viewpoint on the purpose of penalties of Professor, Doctor of Science Le Cam has many reasonable factors for lawmakers to refer to. The author believes that penalties have four purposes: 1) Contributing to restoring justice - social fairness; 2) Reforming and educating convicted people, while preventing them from committing new crimes - separate prevention ; 3) Contribute to educating other members of society to respect, comply with and strictly abide by the law - general prevention and; 4) Support the fight against crime [8, p. 687].
However, we also agree but think that, in addition to other purposes for punishment, it is perhaps necessary to clearly affirm the purpose of punishment , because otherwise, punishment will no longer have the meaning of being the most severe criminal coercive measure of the State prescribed in the criminal law, as well as lacking deterrence and prevention for others in society.
Thus, as a form of criminal liability prescribed by the Penal Code, punishment is used by the State as a necessary tool.