Requirements for Correct Application of Vietnamese Law on Mitigating Circumstances of Criminal Responsibility in Military Region 7

Chapter 2 Summary

Through the practice of deciding to apply mitigating circumstances for criminal liability in Military Region 7 from 2016 to 2020. From the characteristics and situation of the area, the author has provided the most general analysis and assessment based on the overview data as well as the cases tried in practice, thereby bringing the following contents to the thesis:

Firstly, evaluate the achievements in the decision to apply mitigating circumstances in the area of Military Region 7.

Cases are investigated, prosecuted and tried in accordance with the provisions of law, ensuring fairness, equality and ensuring the humane policy of the State as well as the purpose of punishment. In recent years as well as before, the number of cases with protests and appeals is low. The Court's decision on punishment for criminals always objectively assesses all grounds according to the provisions of law, including mitigating circumstances, ensuring differentiation of criminal responsibility and individualization of punishment commensurate with the defendant's criminal behavior.

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Second, to present the difficulties and problems that still exist in the actual area to analyze and evaluate and give the author's opinion on cases where there are still differences in perception regarding the application of mitigating circumstances in specific cases.

Through analyzing the verdict data of the Military Court of Military Region 7 in the past 5 years, it is found that the difficulties and obstacles mainly exist in some cases where there are different perceptions and understandings of the application of the law between the Procuracy and the Court, leading to cases where the Court considers and applies it on its own. Or there is still the case where the assessment of the level of mitigation by the Court and the Procuracy is not the same, so the sentence is sometimes higher or lower than the average. In some cases, it is possible to consider applying the circumstance of "committing a crime but not causing consequences or not causing serious consequences" or other circumstances, but the Court is hesitant to apply them because there are no instructions...

Third, from the local practice and the results achieved in both achievements and remaining limitations, the author evaluates a number of causes to serve as a basis for proposing solutions to improve the effectiveness of decisions on applying mitigating circumstances for criminal liability.

Chapter 3

REQUIREMENTS AND SOLUTIONS FOR PROPER APPLICATION OF THE PROVISIONS OF VIETNAMESE LAW ON MITIGATIONS OF CRIMINAL RESPONSIBILITY IN MILITARY REGION 7, VIETNAM

3.1. Requirements for correct application of Vietnamese law on mitigating circumstances of criminal liability in Military Region 7

3.1.1. Requirements in ensuring the correct purpose of mitigating circumstances of criminal liability

The result of a criminal trial is reflected entirely in the verdict and decision of the Court, which ultimately determines whether the defendant has committed a crime or not and considers the penalty commensurate with the dangerous nature of the act, the personality of the offender, the aggravating and mitigating circumstances of criminal responsibility. Clause 1, Article 50 of the 2015 Penal Code stipulates: "When deciding on a penalty, the Court shall base itself on the provisions of this Code, consider the nature and level of danger to society of the criminal act, the personality of the offender, the mitigating and aggravating circumstances of criminal responsibility."

Mitigating circumstances present in a case are one of the grounds for the Court to reduce the criminal liability that the defendant must bear compared to normal cases. The Court, with the task of considering, evaluating and recording the circumstances that measure the value of reducing the level of danger to society caused by the defendant's criminal acts, also demonstrates the lenient policy of the law and the humanity of our Party and State from the past to the present towards criminals, encouraging them to repent and train to become useful people for society. Mitigating circumstances do not change the nature of the crime but significantly change the level of danger to society of the criminal acts in a specific criminal composition.

The purpose of mitigating circumstances is part of the general purpose of punishment, the final result that the State aims for when forcing the offender to bear criminal responsibility for the crime committed. Punishment

not only has a role in punishment but also aims to educate and prevent them from committing new crimes. Based on the role and significance of mitigating circumstances, it is possible to see the connection between the purpose of applying mitigating circumstances and the general purpose of punishment. In addition to being the basis for deciding on the type and level of appropriate punishment, reflecting the lenient policy of the state and the humane nature of the law, the application of mitigating circumstances is also a part of implementing education and prevention work specifically for criminals. It is a means to differentiate and individualize criminal responsibility in the application of the law and is consistent with the principle of social justice in the criminal field.

3.1.2. Requirements in the decision to apply mitigating circumstances of criminal liability

To make an accurate decision in applying mitigating circumstances, the person applying must ensure compliance with the following requirements:

Firstly, the subject applying the law must have a correct awareness and understanding of the provisions on mitigating circumstances stipulated in Article 51 of the 2015 Penal Code. The subject applying the law that the author wants to talk about here is mainly the subjects directly carrying out activities in the investigation, prosecution, and trial of criminal cases: investigators, prosecutors, judges, and military juries. Firstly, to ensure proper and accurate application, the person conducting the proceedings, right from the investigation stage, must review and determine which cases the offender may fall into in order to collect records, request the provision of documents, the prosecutor exercising the right to prosecute needs to study the records, review the provisions of the law, and request the Trial Panel to consider applying it to the offender. The court, specifically the members of the Trial Panel, also needs to have a correct awareness in application in order to make decisions in accordance with the law.

Second, it is necessary to put the requirement of protecting human rights in the right position as recorded in the document with the highest legal effect, the Constitution of the Socialist Republic of Vietnam. The 2013 Constitution pays special attention and has changed the "position" of the chapter "Human rights, basic rights and obligations of citizens" to Chapter II. The application of legal provisions in general and the application of situations

Mitigating criminal liability must meet the requirements of protecting people from the perspective of a socialist rule of law state of the people, by the people and for the people.

Third, ensuring the requirements for implementing the humane and benevolent criminal policy of the Party and State. In the 2015 Penal Code (amended and supplemented in 2017), it can be seen that the humanitarian ideology is clearly reflected, as the overarching ideology, consistent in the viewpoints and policies for fighting and preventing crime. This ideology is also identified as a guiding principle throughout the legislative history through different periods and in the 2015 Penal Code, the humanitarian ideology is once again clearly and deeply expressed, demonstrating the class nature of our state in each specific legal institution. The criminal policy attaches importance to both punishment and education but especially emphasizes the "benevolent" nature; the humanitarian ideology expressed in the criminal institution is clearly expressed through the decriminalization of a number of socially dangerous acts and cases of excluding criminal liability. In the penal institution, the decision on the penalty must also consider the mitigating circumstances of criminal liability as a basis for the decision. The decision to apply mitigating circumstances is also the basis for considering changing the sentence to a lighter one, suspending the sentence in the direction of reducing the prison sentence.

Fourth, the application of mitigating circumstances must meet and be consistent with the requirements of crime prevention and control in the new situation. The general crime situation in the current period is increasingly complex, the level of danger to society and the consequences are extremely serious, especially related to economic crimes, corruption, crimes of position, and crimes using high technology. Crime tends to be tightly organized and systematic, increasingly professional in the direction of "mafia", which is a great challenge for the entire legal system. In addition, the expansion of international relations and the rapid economic development in recent times have also increased the rate of crimes related to smuggling and economic fraud. The task of fighting and preventing crime is increasingly difficult and complicated, requiring the promotion of the strength of the whole society. The decision to apply mitigating circumstances must also meet the requirements of the task of fighting and preventing crime in the current situation.

3.2. Solutions to ensure proper application of Vietnamese law on mitigating circumstances of criminal liability in Military Region 7

3.2.1. Perfecting criminal law on mitigating circumstances of criminal liability

The 2015 Penal Code was built on the basis of inheriting the Penal Codes of 1985, 1999 and the amendments and supplements up to now. The 2015 Penal Code, amended and supplemented in 2017, is generally assessed to be more complete in content and form, continuing to institutionalize the Party's judicial reform policy in the spirit of improving the effectiveness of prevention and benevolence in handling criminals; respecting and ensuring the implementation of human rights and civil rights [2]. In particular, the first Penal Code stipulates many new progressive regulations, adding new groups of crimes and crimes, creating a basis for fighting and preventing crimes in the new situation.

Particularly, the provisions on mitigating circumstances of criminal liability in Article 51 of the 2015 Penal Code have been amended and supplemented with some contents based on the acceptance and improvement in the process of practical application, concretizing some contents in the guidance in the Resolution of the Council of Judges of the Supreme People's Court into the provisions in the law to make the application process more convenient and clear. However, the author himself finds that the current provisions still have some contents that bring different understandings among those who apply them, leading to inconsistent decisions on applying mitigating circumstances in practice. Some contents need to be edited to suit the practice and ensure more fairness and reasonableness. The author believes that it is necessary to perfect the criminal law on mitigating circumstances of criminal liability on the following contents:

3.2.1.1. Issuing guidance documents on mitigating circumstances of criminal liability still have different understandings and perceptions and new circumstances are regulated.

One is the circumstance of “first-time offense and less serious case”. In reality, there are different perceptions of what constitutes “first-time offense”. Resolution No. 01/2018, guiding the application of Article 66 and Article 106 of the Penal Code on conditional early release from prison, provides guidance on the circumstances of the crime.

First time: “Considered a first-time offender and can be considered if one of the following cases applies: Has not committed any crime before; Has committed a crime before but has been exempted from criminal liability; Has committed a crime before but has been subject to judicial education measures at a reformatory school; Has been convicted but is considered to have no criminal record”. In contrast to the guidance in Official Dispatch No. 01/2017/GD-TANDTC dated April 7, 2017 on answering some professional questions, “A first-time offender is one who has never committed a crime before. If a person has previously committed a crime and been convicted, but the criminal record has been cleared or has not been convicted, but the statute of limitations for criminal prosecution has expired or has not been convicted, and the statute of limitations for criminal prosecution has not expired, and is now prosecuted for criminal liability for the same crime later, then it is not considered a first-time offender”.; There is a view supporting the viewpoint of Resolution No. 01/2018 and analyzing this viewpoint, the Official Letter No. 01/2017 is an answer to the mitigating circumstances of criminal liability stipulated in Point h, Article 46 of the 1999 Penal Code. Because this Penal Code does not have provisions on cases that are not considered to have a criminal record, Official Letter No. 01 does not consider cases that are not considered to have a criminal record under the case of "first-time offenders". As for Resolution 01/2018 guiding the 2015 Penal Code and having higher effect, the concept of "first-time offenders" is consistent with the provisions of the current Penal Code. However, the author asserts that the circumstance of "first-time offenders" is a circumstance related to the offender's personality, a special leniency of the law for first-time offenders. It is impossible to equate a person who has previously committed a crime, has a criminal record but has had his criminal record expunged, is in a case of no criminal record, is exempted from criminal liability, or is subject to judicial education measures. It is impossible to apply the reason "beneficial to the criminal", such application will lead to injustice.

Second, the circumstance of "Committing a crime but not causing damage or causing little damage" is still difficult to determine which case is "not causing damage" or "causing little damage".

The content of “not causing damage” is a contradiction between the two contents in the guidance at point 6.2.1.7 of the 2009 Supreme People’s Court Judges’ Handbook and Document No. 994/VKSTC-V3 dated April 9, 2012 of the Supreme People’s Procuracy sent to the Thanh Hoa Provincial People’s Procuracy, which the author analyzed in part 2.2.3 of the thesis. The author’s point of view agrees with the determination of “not causing damage” in this circumstance as the crime has been completed, distinguished from the crime that has not been achieved but the consequences did not occur due to objective reasons (the masses prevented, were discovered, etc.) as guided in the Judges’ Handbook.

The circumstance of “not much damage” has no guidance on the basis for determining which damage is not much. Is the damage not much compared to the wishes and purposes of the offender or not much compared to the normal level of damage caused by similar crimes? The author's point of view agrees that determining whether the damage is big or not must be based on the normal level of damage for similar crimes. To determine this normal level, there must be a basis and criteria for specific determination.

Third, Clause 1, Article 51 of the 2015 Penal Code has 4 mitigating circumstances newly stipulated in points d "Committing a crime in a case of exceeding the necessary level when arresting the offender", point l "Committing a crime in a case of limited cognitive ability not caused by the offender's fault", point p "The offender is a person with severe or extremely severe disabilities", point x "The offender is a person with meritorious services to the revolution or is the father, mother, wife, husband, or child of a martyr", so there needs to be a document guiding implementation to avoid mistakes or confusion when applying [11].

Fourth, there should be guidance on the number of mitigating circumstances stipulated in the same group of circumstances at one point. The offender is a person with revolutionary contributions and is also the father of a martyr, but according to the regulations, only the circumstance stipulated in point x, clause 1 is applied; or the offender has both excellent achievements in combat and excellent achievements in work, but only point v, clause 1 of Article 51 of the Penal Code is applied; Meanwhile, for the offender who only satisfies one circumstance in this group of circumstances, the same applies as for those who have many circumstances in the group. Although when there are many such circumstances, it is possible to consider reducing the criminal liability at a higher level for the offender, but in some cases

In other cases, it is not beneficial, such as in the case of considering a suspended sentence or applying a penalty below the lowest level of the penalty range.

3.2.1.2. Regulations on criteria for considering the application of other circumstances as mitigating circumstances of criminal liability

The provisions of Clause 2, Article 51 of the 2015 Penal Code allow the discretionary consideration of other circumstances as mitigating circumstances. The panel of judges has the right to consider and decide to apply circumstances that have not been prescribed or cited to apply to the defendant. This may lead to arbitrariness and thereby impose a punishment that is not commensurate with the crime, not ensuring the fairness of the law. Therefore, the author finds it necessary to have a document stipulating criteria and methods to determine which circumstances can be considered as mitigating circumstances based on the necessary characteristics of a mitigating circumstance and the necessary criteria of a mitigating circumstance, which are:

- The circumstances must demonstrate the nature of reducing the level of danger to society of the behavior.

- The circumstances must reflect the offender's ability to reform and educate in response to punishment and other educational and reform measures prescribed by the State applicable to them or reflect the offender's special circumstances that deserve special leniency [3, p.70].

3.2.1.3. Guidance for cases where there is difficulty in applying the provisions of Clause 3, Article 51 of the 2015 Penal Code

Clause 3, Article 51 of the 2015 Penal Code stipulates: “Mitigating circumstances that have been prescribed by this Code as signs of conviction or sentencing shall not be considered mitigating circumstances when deciding on punishment ”. Some cases still cause difficulties and confusion for the prosecution agencies when considering and evaluating, namely:

“ Committing a crime in a state of mental agitation caused by the victim's illegal act ” as prescribed in Point e, Clause 1, Article 51 in the case of committing the crime of “ Murder in a state of strong mental agitation ” as prescribed in Article 125 of the 2015 Penal Code or the crime of “ Intentionally causing injury or damage to health ”

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