Limitations on the Application of Aggravating Circumstances of Criminal Responsibility.

The injury rate is 25%. Mr. Hieu requested Trung to compensate 20 million VND. On January 18, 2005, the defendant Trung's family compensated Mr. Hieu 6 million VND.

The first instance judgment applied points a, i, clause 2, Article 104; points b, p, clause 1, Article 46; Article 51 of the Penal Code; sentenced the defendant to 30 months in prison combined with 12 months in prison but suspended the sentence of judgment No. 02/HSST, forcing the defendant to serve the combined sentence of the two judgments of 42 months in prison. Regarding civil matters: forced the defendant Trung to continue to compensate Mr. Hieu 10,500,000 VND.

Comment: The defendant committed the crime of "intentionally causing injury" this time within the probation period of the judgment No. 02/HSST of the People's Court of Dai Tu District. Thus, this crime is a case of recidivism, so point g, clause 1, Article 48 of the Penal Code must be applied to decide the penalty for the defendant. The People's Court of Dai Tu District did not apply point g, clause 1, Article 48 of the Penal Code, which is an omission of the aggravating circumstance of the defendant's criminal liability. The defendant's family voluntarily paid six million VND to remedy the consequences, which is a mitigating circumstance of the defendant's criminal liability, but it is a mitigating circumstance according to clause 2, Article 46 as guided in section 5 of Resolution 01/2000/NQ-HDTP dated August 4, 2000 of the Council of Judges of the Supreme People's Court. The People's Court of Dai Tu District applied point b, clause 1, Article 46 to the defendant, which is incorrect.

- Judgment No. 35/HSST dated November 24, 2005 of the People's Court of Song Cong town tried defendant Nguyen Van Thuc, born in 1968, for the crime of "destroying other people's property" under Clause 1, Article 143 of the Penal Code (criminal record: None).

The content of the case is as follows: Due to previous conflicts in daily life, Nguyen Van Thuc sought an opportunity to take revenge on his neighbor Nguyen Van Ngoc. On August 2, 2005, Thuc bought a tube of rat poison made in China and soaked it in dried fish. At 11 p.m. that same night, taking advantage of the time when Ngoc's family was fast asleep, Thuc secretly brought the fish soaked in rat poison to

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Mr. Ngoc's pigsty was thrown inside to feed the pigs. The next morning, discovering 3 dead pigs, Mr. Ngoc reported to the police. The police investigation agency of Song Cong town used professional investigation measures and identified the perpetrator as Nguyen Van Thuc. The total value of damaged property was assessed at 2,800,000 VND. Song Cong town People's Court declared defendant Thuc guilty of destroying other people's property, applying Clause 1, Article 143, Points b and h, Clause 1, Article 46 of the Penal Code, sentencing defendant Thuc to 9 months in prison but suspended the sentence.

Comment: The act of defendant Thuc using extremely toxic chemicals (rat poison produced in China) to poison Mr. Ngoc's pigs is an act of committing a crime with dangerous means, therefore the People's Court of Song Cong town did not apply the aggravating circumstance of "using explosives, flammable substances or other dangerous means" as stipulated in Point b, Clause 2, Article 143 of the Penal Code with a sentence of 2 to 7 years, which is a serious mistake in applying the Penal Code. The People's Court of Song Cong town only sentenced defendant Thuc to 9 months in prison with a suspended sentence in this case, which is too lenient.

II. RESTRICTIONS ON THE APPLICATION OF AGGRAVATING CIRCUMSTANCES OF CRIMINAL LIABILITY.

1. Limitations on the application of aggravating circumstances of criminal liability.

- Circumstances such as crimes against teachers, grandparents, fathers, mothers, foster parents in crimes such as intentional injury, murder have not been guided by competent authorities so the agencies conducting the proceedings are still confused. For example: grandparents, biological parents, parents-in-law, foster parents ... teachers have many forms: teaching at school, teaching at home, tutoring, teaching culture, teaching sports ... So which cases are subjects under the provisions of the Penal Code?

- The circumstances of the crime causing serious, very serious, and especially serious consequences, such as assessing the immaterial consequences, and whether these consequences are the same in all crimes or not, are controversial issues.

- In fact, recidivism of the same crime (or the same type of crime) is more dangerous than recidivism of different crimes (many crimes have criminal records of the same crime or the same type of crime which are considered as factors in determining the crime). However, when trying, there is no basis to increase the severity of criminal liability in those cases. Therefore, should recidivism of the same crime (or the same type of crime) be separated in the provisions of the Penal Code from recidivism of different crimes? Another issue related to recidivism is the case where a person has recidivized, has not had his criminal record cleared, and commits two intentional crimes at the same time (that is, commits one crime without being prosecuted and then commits the other crime), should the aggravating circumstance of dangerous recidivism be applied to both crimes or to one crime?

- Regarding the circumstance of Organized Crime: To determine the level of collusion, how much discussion is enough to conclude that the crime is organized is also very difficult, what is considered close collusion. Because this is a framing circumstance in many crimes, normally the prosecuting agencies are quite cautious when applying this circumstance, usually only applying it to very clear cases. The application of the circumstance of organized crime is also not consistent.

- The crime of hooliganism is a difficult circumstance to determine. Some views say that only when the behavior is drastic can it be considered hooliganism. Other views say that only when the behavior is reckless can it be considered hooliganism.

- Another case is if a person both incites and uses children (under 16 years old) to trade drugs, in addition to applying the aggravating circumstance of "using children to commit crimes" (stipulated in point e

Clause 2, Article 194 of the Penal Code) is there an additional aggravating circumstance of inciting a minor to commit a crime?

- In cases where the framing circumstance is not applicable and that circumstance is not stipulated in Clause 1, Article 48 of the Penal Code, should there be a provision allowing the Court to consider it a general aggravating circumstance? For example: A steals property worth 200 million VND and commits assault to escape. In this case, A must be tried under Clause 3, Article 138 of the Penal Code for the crime of theft of property. Can the aggravating circumstance of assault to escape be considered a general aggravating circumstance?

- In the case where the aggravating circumstance is applied, this circumstance may coincide with the sentencing circumstance of another crime. For example, in the case of disturbing public order, there is an act of assaulting a person who intervenes to protect public order, causing 11% damage to that person's health. Is the offender subject to criminal liability for the crime of disturbing public order with the aggravating circumstance of assaulting a person who intervenes to protect public order and the crime of intentionally causing injury? Thus, whether it is beneficial or not for the offender, or in the case where a circumstance is an element of sentencing for this crime, it should not be applied as an aggravating circumstance of another crime. Because that circumstance has been tried as a separate crime [25, pp.20-21].

- In the crime of child rape, the case of raping a child under 13 years old is considered a special aggravating circumstance and is regulated in Clause 4, Article 112 of the Penal Code, but the lowest level of the penalty is lower than in Clause 3 (Clause 4 is 12 years, Clause 3 is 20 years). So if the offender rapes a child under 13 years old, and there is an aggravating circumstance specified in Clause 3, then Clause 3 or Clause 4 should be applied to punish the offender). Applying Clause 4 is not allowed, because Clause 4 has a lighter penalty than Clause 3 (the crime is lighter).

If clause 3 is applied, what is the basis for increasing the criminal liability of the offender?

- Similar case: if raping a person from 16 years old to under 18 years old but there is one of the circumstances specified in Clause 2, Clause 3, Article 111 of the Penal Code, which circumstance will be applied to increase the criminal liability of the offender?

2. Causes of the above limitations.

The application of aggravating circumstances of criminal liability in practice still faces many shortcomings and limitations due to many different reasons, but in our opinion, there are some main reasons as follows:

Firstly, the provisions of the Penal Code are still inadequate and unreasonable. Through the analysis in the above sections, we see that the provisions of the Penal Code do not fully reflect the nature and legal significance of the circumstances that increase the danger to society of the crime. Therefore, the provisions of the aggravating circumstances are still inadequate, do not fully reflect the danger to society of the crime, some circumstances may overlap, so that a circumstance can be considered to be applied twice such as professional crime and multiple crime. Many circumstances are regulated in an arbitrary manner, which is easy to be arbitrary when applied.

- Some circumstances are common but not clearly defined in the Penal Code such as organized crime, hooliganism. Due to misjudging the legal significance of some aggravating circumstances for each specific case, the regulation of aggravating circumstances and the framework for some crimes is unreasonable, leading to great difficulties for those who apply them. The punishment for criminals may in many cases not be commensurate with the nature and level of danger to society of the crime they commit.

- The technique of constructing aggravating penalty frameworks in some cases is still unscientific, leading to difficulty in application. For example: the provisions in Clause 2,

Clause 3 and Clause 4, Article 111, Article 112 - Penal Code on Rape and Child Rape, for example.

Second, most of the aggravating circumstances have not been guided, especially the aggravating circumstances that determine the penalty. Some cases that were guided before are no longer suitable under the 1999 Penal Code. Some circumstances have been guided sporadically in many different documents, lacking a systematic approach. In particular, since the 1999 Penal Code was born, only the circumstances of crimes causing serious, very serious, and especially serious consequences in the chapter on crimes against property have been guided. In addition, the guidance of competent authorities is not suitable, does not reflect the true nature and content of each aggravating circumstance of the criminal liability, which is also a cause of inconsistency in the application process.

Third, the fundamental reason is that the level of awareness and application of the law by litigants is limited and uneven, leading to difficulties and inaccuracies in applying the aggravating circumstances in practice. Because aggravating circumstances are not prescribed for research but for practical application, how they are applied is under the authority of litigants. Therefore, the limited and uneven level of litigants will lead to a certain aggravating circumstance being misunderstood or understood in different ways, especially between trial levels. In fact, many cases at the first instance level have correctly applied the aggravating circumstance, but the appellate level thinks it is wrong, and at the final judgment level, it is considered correct to apply it as at the first instance level.

In general, the qualifications of the litigants (mainly judges, investigators, prosecutors) are very important in applying the law in general and the aggravating circumstances of criminal liability in particular. Because there are aggravating circumstances that cannot be guided. In cases where guidance has been given, the content

The content cannot be completely clear because the reality of crime is very diverse and rich.

III. SOLUTIONS TO OVERCOME LIMITATIONS WHEN APPLYING AGGRAVATING CIRCUMSTANCES OF CRIMINAL RESPONSIBILITY.

1. Strengthen guidance on unified application of laws.

In our opinion, there should be a separate document guiding the application of aggravating circumstances stipulated in Article 48 of the Penal Code as well as the application of Clause 2 of Article 48 of the Penal Code (the content of which we have mentioned in the above sections), avoiding scattered instructions in too many documents, leading to difficulty in application in practice.

Some cases are aggravating circumstances that need to be guided in the following direction:

- In case the circumstance of having been convicted and not yet cleared of the sentence has been applied as a factor in determining the crime (in some crimes), it cannot be applied as an aggravating circumstance (recidivism, dangerous recidivism) anymore.

- In crimes of property appropriation: Robbery, extortion of property, if the victim is a child or an elderly person, it is also necessary to apply the crime circumstances to children and the elderly.

- In case of rape of a person under 13 years old but having one of the circumstances in Clause 3, Article 112, Clause 3, Article 112 must be applied for trial.

To overcome the unreasonable provisions of the 1999 Penal Code on the aggravating circumstance of "murder by a method capable of causing the death of many people", it is necessary to amend and issue a document guiding the application of the circumstances of "murder by many people" and "murder by a method capable of causing the death of many people" in the following direction:

First, amend the aggravating circumstance of "murder by a method capable of killing many people" to "murder by means of tools and methods"

"highly dangerous means, means or methods" and instructions for applying this circumstance in the direction of "murder by highly dangerous means, means or methods" such as: Throwing grenades into crowded places; putting poison in public water tanks. When applying the aggravating circumstance "murder by highly dangerous means, means or methods" does not require signs of the ability to kill many people.

Second, issue a document guiding the application of the circumstances of "murder of many people" and "murder by highly dangerous tools, means or methods" in the following direction:

- The aggravating circumstance of “multiple murder” is only applied when the offender intentionally (directly or indirectly) causes the death of many people and there are two or more deaths but does not use highly dangerous tools, means or methods of committing the crime.

- The aggravating circumstance of “murder by highly dangerous tools, means or methods” is only applied when the offender intentionally (directly or indirectly) causes the death of one or more people (so) he/she uses highly dangerous tools, means or methods to commit the crime but that act has not yet caused the death of many people.

- Both aggravating circumstances “murder of many people” and “murder by highly dangerous tools, means or methods” must be applied when the offender (because) intentionally (directly or indirectly) causes the death of many people (so) uses highly dangerous tools, means or methods to commit the crime and the use of such tools, means or methods to commit the crime has resulted in the death of many people.