"There are some crimes that are unintentional, but the legislator only prescribes one main penalty, which is imprisonment. For example, Article 218 prescribes the crime of putting into use an unsafe means of air transport. Such a provision does not ensure the differentiation of criminal liability and the individualization of punishment for offenders" [39, p. 203]. We support this view and believe that for crimes committed unintentionally (except for the crime of unintentionally causing death), it is necessary to prescribe a sanction to choose between imprisonment and other lighter penalties such as fines and non-custodial reform.
- For the penalty of prohibition from holding a position, practicing a profession or doing certain work .
Firstly, it is necessary to amend Article 36 of the Penal Code to clearly define the content, scope, conditions and duration of this penalty, specifically as follows:
1. Prohibition from holding a position, practicing a profession or doing certain work is an additional penalty that does not allow a person sentenced to non-custodial reform, fixed-term imprisonment or suspended imprisonment to hold a position, practice a profession or do certain work, so that they have committed a crime by taking advantage of or abusing a position, profession or certain work or related to that position, authority, profession or work.
2. The period of prohibition is from 1 year to 5 years, calculated from the date of completion of the fixed-term prison sentence or from the date the judgment takes legal effect if the main penalty is non-custodial reform or in the case where the person sentenced to imprisonment is given a suspended sentence.
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Second, in the Criminal Code's section on crimes, it is necessary to stipulate the arbitrary application of this penalty to the following crimes: Crime of intentionally causing injury or harm to the health of others (Article 104), crime of illegal business (Article 159), crime of tax evasion (Article 161), crime of deceiving customers (Article 162); crime of violating
regulations on research, exploration and exploitation of resources (Article 172), crime of organizing illegal use of narcotics (Article 197), crime of harboring illegal use of narcotics (Article 198), crime of violating regulations on child labor (Article 228), crime of harboring or consuming property obtained by others through crime (Article 250), crime of disseminating obscene cultural products and crime of prostitution (Article 254), crime of forging seals and documents of agencies and organizations (Article 267). Particularly for the crime of forcing employees, cadres and civil servants to quit their jobs illegally (Article 128), it is necessary to stipulate the penalty of banning them from holding certain positions.
Third, due to the dangerous nature of some crimes, it is necessary to prescribe mandatory application of this type of punishment, namely the crime of producing and trading in counterfeit goods such as food, medicine, and disease prevention medicine (Article 157); the crime of intentionally violating regulations on the distribution of money and relief goods (Article 169); and drug-related crimes specified in Articles 193, 194, 195, and 196.
Fourth, the provisions on this penalty should be amended and supplemented for the following crimes:
- The crime of violating the confidentiality or security of another person's mail, telephone, or telegram (Article 125) not only prohibits holding certain positions but also prohibits practicing a profession or doing certain work.
For the crime of intentionally violating regulations on economic management causing serious consequences (Article 165), on the contrary, it is enough to stipulate a ban on holding an economic management position, but it is not necessary to prohibit doing certain jobs, because the subject committing the crime is a person with a position and authority in economic management. For the crime of violating regulations on land management (Article 174), the same should be stipulated, meaning that the offender is only prohibited from holding a certain position.
- For the crime of violating regulations on driving road vehicles (Article 202), it is not necessary to stipulate a prohibition on holding certain positions, but only a prohibition on practicing a profession or doing certain jobs, because the offenders are usually those who drive road vehicles (which is their profession or just their temporary job). As for the crimes of falsifying case files (Article 300) and the crime of being irresponsible so that the person being reduced or detained escapes (Article 301), it is also necessary to fully stipulate the contents of this penalty, that is, a prohibition on holding certain positions, practicing a profession or doing certain jobs.
- Finally, clause 3 of articles 169 and 170 needs to add certain words after the phrase " prohibition from holding office" to ensure the accuracy and consistency of this type of punishment in prescribing it for different crimes.
- For the penalty of deprivation of certain civil rights
Firstly, the name of this type of punishment needs to be revised to match the content of the law. In our opinion, it is only necessary to stipulate the name of the punishment as deprivation of civil rights.
Second, Article 39 of the Penal Code should be amended to accurately define the content, scope and duration of application of this type of penalty as follows:
Vietnamese citizens sentenced to a term of imprisonment for a very serious crime, an especially serious crime against national security, or another very serious crime, an especially serious crime committed intentionally and only in cases prescribed by this Code, shall be deprived or may be deprived of one or more of the following civil rights:
a) The right to run for election and the right to vote for representatives of state power agencies;
b) The right to work in state agencies and the right to serve in the armed forces.
2. The term of deprivation of citizenship is from 1 year to 5 years, from the date of completion of the fixed-term prison sentence.
- For the penalty of confiscation of property
Firstly, it is necessary to specifically and accurately determine the content, conditions and scope of this penalty in Article 40 of the Penal Code.
Article 40 of the Penal Code should be amended and supplemented as follows: Confiscation of property means the confiscation of part or all of the property owned by a convicted person to the state treasury. Confiscation of property is only applied to persons sentenced to fixed-term imprisonment, life imprisonment or death penalty for very serious crimes, or especially serious crimes committed intentionally and only in cases prescribed by this Code.
When confiscating all assets, the convicted person and his family are still left with essential assets to live on.
Second, this penalty should not be prescribed as mandatory for the crime of abuse of trust to appropriate property (Article 140). If it is still prescribed as mandatory, Clause 5 of Article 140 should be revised as follows: The offender is also prohibited from holding a position, practicing a profession or doing certain work from 1 to 5 years and having part or all of his/her property confiscated or one of these two penalties, may be fined from 10 million VND to 100 million VND.
Third, Clause 5, Article 250 of the Penal Code also needs to be revised as follows: Offenders may also be fined from 3 million to 30 million VND and have one or more of their belongings confiscated.
part or all of the property. It is not necessary to add the phrase "or one of these two penalties".
Fourth, the scope of application of Article 40 should be expanded in the direction of compulsory confiscation of property for certain specific groups of crimes, especially crimes of property infringement with appropriation nature, and crimes related to corruption and drugs.
CONCLUSION OF CHAPTER 3
Studying Chapter 3, we have the following conclusions:
In the trial of criminal cases, the punishment, including the punishment without deprivation of liberty, applied by the Courts to criminals has demonstrated the criminal policy of our State, meeting the requirements of public opinion and the requirements of serving political tasks at the local level as well as nationwide. Basically, there is a consistency between the theory and practice of law as well as the practice of applying punishments without deprivation of liberty. However, the practice of applying punishments without deprivation of liberty also reveals certain shortcomings and limitations. This situation is due to many different reasons, including the incompleteness of the provisions on punishment without deprivation of liberty in positive law; The cause of the above situation comes not only from positive law but also from other reasons, including the cause of incomplete explanation and guidance on the application of the law; The professional capacity, expertise, legal awareness and professional responsibility of a number of people working in the adjudication sector are still weak, etc. Therefore, perfecting and improving the effectiveness of regulations on non-deprivation of liberty penalties is to resolve the existing limitations and shortcomings in the above-mentioned field.
Improving the effectiveness of applying regulations on non-deprivation of liberty penalties is an objective requirement stemming from its important significance not only in terms of
criminal law but also social. Building and properly applying the provisions of criminal law on non-deprivation of liberty punishment is an important guarantee to achieve social justice. Researching on non-deprivation of liberty punishment, we propose a number of solutions to improve the effectiveness of practical application.
CONCLUDE
Through the research on the topic: "Punishment without deprivation of liberty in Vietnamese criminal law", the following main conclusions can be drawn:
1. Punishment is the most severe criminal coercive measure of the State decided by a competent Court in a legally effective verdict to deprive or restrict the rights and freedoms of the convicted person according to the provisions of criminal law.
Punishment, whether in the form of HPC or HPBS, must have the following basic characteristics: 1- Punishment is a coercive measure of the State. 2- Punishment can only appear when a crime is committed. 3- Punishment can only be applied by the Court. 4- Punishment deprives or restricts the rights and freedoms of the convicted person. 5- Punishment is prescribed by the Criminal Code. 6- Punishment is only personal in nature.
2. Based on the general characteristics of punishment, the thesis has stated and analyzed the specific characteristics of punishment without deprivation of liberty in the relationship between the general and the specific. These are the following characteristics: 1- The convicted person is not isolated from society. 2. The coercive nature is lower than that of imprisonment. 3- The execution is carried out by many different agencies and organizations. 4- The conditions of application and the legal consequences have their own nuances. 5- Including a number of main and additional punishments. 6- The execution highly promotes the role of the community.
Based on the synthesis of concepts of punishment in criminal law science and the results of research analyzing the characteristics, roles, and specific functions of non-deprivation of liberty punishment, the thesis proposes the concept of non-deprivation of liberty punishment as follows: Non-deprivation of liberty punishment is the most severe criminal coercive measure of the State decided by a competent Court (can be the main punishment or additional punishment) in a legally effective conviction judgment to force the convicted person to suffer one or more
some adverse legal consequences, but not depriving or restricting the right to personal liberty, the right to freedom of residence, in order to reform, educate criminals, prevent and combat crime.
3. The thesis has distinguished between non-deprivation of liberty and deprivation and restriction of liberty to see more clearly the characteristics of deprivation of liberty and the similarities and differences between these types of punishments.
4. Research shows that there are still certain shortcomings and limitations in legal practice and in the practice of applying non-deprivation of liberty penalties. The existence and limitations are due to the incompleteness of regulations on non-deprivation of liberty penalties in the Penal Code, from the incomplete and untimely explanation and guidance of the law, to the capacity, professional and technical qualifications, legal awareness and professional responsibility of a number of law enforcement officers still having certain shortcomings...
5. Continuing to improve regulations on non-deprivation of liberty penalties and enhancing the effectiveness of applying these regulations is an objective requirement stemming from its important significance not only in terms of criminal law but also in terms of politics and society. Building and properly applying these legal regulations is an important guarantee to resolve the shortcomings, limitations and inadequacies in the above-mentioned fields. To improve the law and improve the effectiveness of its application in practice, the thesis proposes solutions such as: 1) Strengthening the work of explaining and guiding the application of the law; supervising trials, inspecting and examining the application of non-deprivation of liberty penalties by courts at all levels; 2) Strengthening the team of judicial staff, improving the professional qualifications, legal awareness and professional responsibility of judicial staff, especially the team of judges of courts at all levels; 3) Amending and supplementing the limitations and inadequacies in the law on the provisions for each type of non-deprivation of liberty penalty;