Law Enforcement Guidance Solutions, Trial Summary

93) and 2015 (Article 123) do not specifically define the crime of murder. However, in criminal law science, there are many different definitions. The first definition states that: " The crime of murder is the act of intentionally and illegally depriving another person of his life ". The second definition states that: " The crime of murder is the illegal act of a person with criminal capacity to intentionally deprive another person of his right to life" [71, p. 51] . The third definition states that: " The crime of murder is the act of intentionally and illegally killing another person" [69, p. 7] .

Through analysis, the author finds that: First, these definitions do not mention the signs of criminal responsibility capacity and age of the subject or only mention the signs of criminal responsibility capacity without mentioning the signs of age. Second, the use of the term murder as the act of "intentionally depriving another person of life" illegally is inaccurate and not true to Vietnamese because "deprivation of life", according to the Great Vietnamese Dictionary, is "deprivation and taking of human life" and because "deprivation" already implies intention, it is not necessary to stipulate that "murder is the act of intentionally depriving life".

network..." [1, pp. 1652, 1767] .

:On the basis of science and legal basis stipulated in Clause 1, Article 8 of the 1999 Penal Code "Crime is an act dangerous to society as prescribed in the Penal Code, committed intentionally or unintentionally by a person with criminal responsibility, violating... the life... of a person..." [39, p. 4] as well as on the basis of analyzing different definitions of crimes against human life, we propose a new definition of murder as follows: murder is an act of intentionally causing the death of another person in an illegal manner, committed by a person with criminal responsibility, in which the person must be of the age of criminal responsibility prescribed by the Penal Code (from 14 years of age or older).

To determine whether an act constitutes a crime against human life or not, we must first rely on the definition of crimes against human life. Because, the definition of crimes against human life is the basis that allows us to distinguish this crime from others.

In case of no crime or other crime. With such important significance, we propose to add to Article 93 of the 1999 Penal Code and Article 123 of the 2015 Penal Code which will soon take legal effect the following characteristic signs of murder:

Article….. Murder

1. Anyone who intentionally causes the death of another person in an unlawful manner in one of the following cases shall be sentenced to imprisonment from twelve to twenty years, life imprisonment or death:

a) Intentionally causing death to many people;

b) Intentionally causing the death of a woman known to be pregnant; c)... .

2. Anyone who intentionally causes the death of another person in an unlawful manner not falling under the cases specified in Clause 1 of this Article shall be sentenced to imprisonment from seven to fifteen years.

* On the subjects affected by crimes against human life

Crimes against human life violate personal relationships through the impact that changes the normal state of the affected object - a living person. Correctly identifying the affected object of the crime against human life is extremely important. Because if an act affects an object that is not or is not yet a human, it does not violate the right to life of a human being, so it does not constitute a crime against human life.

Regarding the beginning of human life, there are still many different views in the world today. According to the provisions of Article 8 of the Law on the Protection of Fetuses dated December 13, 1990 of the Federal Republic of Germany, the earliest time to be considered a human being is the time of formation of the fetus. According to this Law, a fetus is a human egg cell that has been fertilized and is capable of development. An asexual cell taken from the fetus and can develop into an individual is also considered a fetus... Along with this view, the Criminal Law of some countries also stipulates: "The act of intentionally causing the death of a fetus in a malicious and illegal manner is a crime against human life" [73, pp. 6].

Opposing views, represented by Mr. Peter Singer and Mr. Norbert Hoerster (Australia), argue that the earliest time to be considered human is the time the fetus is born [74, pp. 1-16] .

Regarding the beginning of human life, in Vietnam today, there are also many different views. The first view holds that a human's life begins when the mother is giving birth, at the time when a part of the fetus's body is visible from the outside. The second view holds that a human is only considered when the fetus has been completely born from the mother's body and exists independently in the objective world [70, p. 11]. The reason for the different views on the beginning of human life is mainly due to different perceptions and assessments of the time of birth of a child. If according to the first view, the beginning of human life is the time when the process of giving birth begins, but if according to the second view, the beginning of human life is the time when the process of giving birth ends. Of the two views above, the author leans towards the first view. Because, from the moment of birth, the child has separated from the fetus of the mother's body. At this point, the child is only connected to the mother's body through the placenta. Therefore, this point can be considered the point when the child has "separated from the mother's body", preparing to come out and become an independent natural entity. Because the fetus does not yet have the characteristics mentioned above, it is not considered a human being. Furthermore, the act of affecting the fetus is essentially affecting a part of the mother's body. Therefore, it is not possible to convict a person of violating human life, but only to convict a person of illegal abortion or a crime related to the consequences that this act has caused or may cause to the mother. The author does not agree with the second point of view "... only considered a human being when the fetus has been completely born from the mother's body". Because, if the human right to life is only protected when the fetus has been completely born from the mother's body, it will be too late. The following case is an example: during the shift, Nurse B had to deliver a baby for a woman having difficulty giving birth. B realized that this mother had a grudge against his family, so she intentionally did not perform a medical procedure (using medical forceps to pull the baby out), leading to the baby suffocating. If according to the first point of view, "a human life begins when the mother is giving birth, at

If "the moment a part of the fetus's body is seen from the outside" then B has committed murder, but if according to the second point of view "a fetus is only considered a human being when it has been completely born from the mother's body and exists independently in the objective world" then B has not committed murder.

To unify the perception as well as the application of criminal law, we recommend that competent authorities should add this issue to the Criminal Code in the direction: The beginning of human life is the beginning of the birth process, when a part of the fetus's body is visible from the outside.

* About aggravating circumstances

Firstly, it is necessary to add the phrase "at the same time" to the aggravating circumstance "murder and immediately before or immediately after committing a very serious crime or an especially serious crime". Because a very serious crime or an especially serious crime can be committed immediately before or immediately after a murder crime, but can also be committed at the same time as a murder crime. If according to current regulations, only when a very serious crime or an especially serious crime is committed immediately before or immediately after a murder crime will the aggravating circumstance be applied, but when a very serious crime or an especially serious crime is committed at the same time as a murder crime, it will not be applied. To overcome the above shortcomings, we propose to amend and supplement Point e, Clause 1, Article 123 of the 2015 Penal Code as follows:

Article 123. Crime of murder (old)

1. A person who commits murder in one of the following cases shall be sentenced to imprisonment from twelve to twenty years, life imprisonment or death:

e) Murder that immediately before or immediately after commits a very serious crime or a special crime

serious;

Article 123. Crime of murder (new)

e. Intentionally causing the death of another person while immediately before, at the same time or immediately after committing a very serious crime or a special crime

especially serious;

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Second, to consistently apply the aggravating circumstances of killing relatives, foster parents, and educators (grandparents, parents, foster parents, teachers, etc.), we recommend that competent authorities separate this circumstance into three circumstances: "killing one's own grandparents, parents, "killing one's foster parents," and "killing one's own teachers." Because these are independent, unrelated murder cases, if separated into three circumstances, it will not only clearly demonstrate the principle of differentiation of criminal responsibility, but also help to apply the law easily, consistently, and accurately.

Regarding penalties and penalty framework, it is necessary to stipulate Clause 1, Article 123 after Clause 2 because Clause 2, Article 123 is the basic crime of murder.

Article 123. Crime of murder

1. Anyone who intentionally causes the death of another person shall be sentenced to imprisonment from seven to fifteen years.

2. Committing a crime in one of the following cases shall be punishable by imprisonment from twelve to twenty years, life imprisonment or death penalty:

a) Killing many people;

…

3.2.2. Solutions to guide law enforcement and trial summary

In order to handle crimes in accordance with the law, promote effectiveness and efficiency, positive laws must be specific, clear, officially and promptly interpreted to minimize the possibility of ambiguous understanding, creating loopholes for the abuse of the ambiguity of the law to intentionally violate. In addition, given the complicated situation of murder crimes in Da Nang city in recent years, the fight against this dangerous crime must be implemented resolutely. Building a synchronous legal system, creating a solid legal corridor for law enforcement agencies to operate effectively is becoming more and more urgent and necessary. Based on the above awareness, in this topic, we would like to propose solutions to improve the application of the provisions of the Penal Code and the Criminal Procedure Code related to the crime of murder.

In recent years, the work of explaining and guiding the application of the provisions of the Penal Code on the crime of murder has not received due attention. The summary of the investigation, prosecution and trial of murder cases has not been conducted regularly. Therefore, to improve the effectiveness of the trial of murder cases in particular, we recommend the following solutions:

Firstly, competent authorities need to soon issue documents guiding the subjects affected by the crime of murder in the direction: The beginning of human life is the beginning of the birth process, when a part of the fetus's body is visible from the outside through the mother's vagina.

Second, to uniformly apply the aggravating circumstance of child murder, we recommend that competent authorities promptly issue documents guiding the application of this circumstance in the direction that anyone who kills a person under 16 years old, whether knowingly or not, will be subject to the aggravating circumstance of child murder.

Third, although the aggravating circumstance of murder for a base motive has been guided by the Supreme People's Court (Resolution No. 04/HDTP dated November 29, 1986), some judges apply it emotionally, making it difficult to determine. To overcome the above situation, through summarizing many years of trial experience in Da Nang city, the author suggests that it is necessary to stipulate more cases considered as murder for a base motive in documents guiding the application of the law to this circumstance. The following cases are considered murder for a base motive: killing a wife or husband to freely marry another wife or husband; killing a husband to marry the victim's wife or husband; killing a creditor to escape debt; killing someone to rob property; killing someone who is one's benefactor; killing a relative of the person who wants to kill; the person killed is unable to defend himself (a person over 80 years old; a sick person; a child under 14 years old); killing someone who is truly loved; worrying about one's own interests only for personal, selfish reasons; killing for personal gain (to receive inheritance; life insurance money of the deceased;...)

Fourth, there are still many different opinions on the aggravating circumstance of murder with a hooligan nature. To overcome the above situation, we consider

that the aggravating circumstance of hooligan murder should only be applied when two conditions are satisfied: One is that, subjectively, the offender is a person with an aggressive attitude and disregard for the law. Two is that: Objectively, they kill the victim for only a trivial reason or for no reason.

Fifth, the author recommends that competent authorities soon issue a document guiding the distinction between murder and involuntary manslaughter in cases where property owners apply illegal measures to protect property (such as setting traps, digging spike pits, etc.) but have caused fatal consequences, in the direction of: Defining murder in cases where illegal measures are applied to both protect property and prevent people; although only intended to protect property, not to prevent people, but because there is no intention to eliminate fatal consequences, this consequence has occurred; although illegal measures are applied to protect property, there is an intention to protect human life.

Sixth, although criminal liability for murder has been specifically regulated in the 1999 Penal Code, through the practice of trial and research on murder sentences in recent years in Da Nang city, the author finds that the application of criminal liability for murder still has a situation where the penalty applied is not commensurate with the nature and level of danger to society of the crime. The reason for the above-mentioned existence is mainly due to the fact that the prosecuting agencies have incorrectly applied and inconsistently applied aggravating circumstances as well as aggravating and mitigating circumstances of criminal liability. Therefore, in order to individualize penalties in a fair, well-founded and lawful manner, competent authorities need to promptly issue documents guiding the basis for deciding on three types of penalties - fixed-term imprisonment, life imprisonment and death penalty in cases of murder with both aggravating circumstances and aggravating and mitigating circumstances of criminal liability.

In practice, when applying aggravating circumstances, although there are documents guiding their application, such as: Murder for despicable motives, murder with hooliganism; murder to commit or conceal very serious crimes.

or other particularly serious crimes... However, due to the lack of specific and complete guidance, in practice, investigation, appraisal, prosecution and trial of these murder cases, there are still many different views, leading to incorrect application, seriously affecting the rights and legitimate interests of citizens. The circumstance of murder with hooliganism is an example. Although this circumstance has been guided for application by the Council of Judges of the Supreme People's Court, due to the lack of specific guidance, it has led to the following situation: There are cases where the Procuracy prosecutes the defendant for murder with the aggravating circumstance of murder with hooliganism, but the court does not apply it; there are cases where the Court of First Instance applies this aggravating circumstance, but the Court of Appeal does not apply it; there are even cases where the verdict has come into legal effect but is still re-tried by the Chief Justice just because the aggravating circumstance is not applied correctly.

3.3. SOLUTIONS TO ENSURE THE CORRECT APPLICATION OF THE PROVISIONS OF CRIMINAL LAW IN DETERMINING THE CRIME OF MURDER In order to ensure the correct application of the provisions of criminal law in defining the crime of

In order to deal with the crime of murder of the People's Court in Da Nang city in particular and the whole country in general, the following solutions are needed:

3.3.1. Improve professional and technical qualifications and do a good job in organizing and staffing the judiciary, especially the team of judges.

The practice of legislation and application of criminal law shows that building good criminal law is not enough, because it is only the legal basis for implementation, but serious and correct implementation in reality can achieve the purpose of the law, bring about effective implementation of the law. Effective implementation of the law is "the positive practical results achieved by the implementation of the law, in accordance with the desired purposes and requirements of law implementation within certain scopes and conditions at the lowest cost " [17, p. 125]. Therefore, to implement it requires each person, each citizen to be exemplary in implementing it correctly, especially and first of all, judicial officials. Therefore, if a State has a good criminal law system, but has a team of law enforcement officials

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