2006
Source: Statistics, Supreme People's Court.
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Chart 2.3: Results of first instance trials for defendants committing crimes against road traffic safety and order from 2005 - 2009
The fair trial outcome is 1.04%.
The penalty is 0.32% and the fine is 5.38%.
Non-custodial reform is 9.42%
Prison for suspended sentence is 35.23%
Imprisonment from 3 months to under 7 years is 42.21%
Prison from 7 years to 15 years is 6.4%
Source: Statistics, Supreme People's Court.
The above statistical table ( Table 2.3, chart 2.3 ) on the handling of defendants tried for crimes against road traffic safety and order in the years 2005 - 2009 shows the types of penalties and specific levels of penalties that the Courts of First Instance applied to the defendants, specifically as follows:
- Sending 06 defendants to reformatory schools or education at communes, wards and towns (accounting for 0.17%).
- Deportation for 09 defendants (accounting for 0.26%).
- Not guilty verdict for 13 defendants (accounting for 0.38%);
- Exemption from criminal liability or punishment: 08 defendants (accounting for 0.23%);
- Warning: 11 defendants (accounting for 0.32%);
- Fines: 184 defendants (accounting for 5.38%);
- Non-custodial reform: 326 defendants (accounting for 9.42%)
- Suspended sentence: 11,851 defendants (accounting for 35.23%)
- Imprisonment for a term of 03 months - 07 years: 14,191 defendants (accounting for 42.21%);
- Imprisonment for a term of 07 years - 15 years: 220 defendants (accounting for 6.4%);
From the above results, the following conclusion can be drawn: according to the provisions of Articles 202, 203, 204 and 205 of the Penal Code, the penalties for defendants for crimes against road traffic safety include: fines, non-custodial reform and fixed-term imprisonment (from 03 months to 15 years). The provision of these different types of penalties is partly due to the nature and level of danger to society of these crimes due to unintentional mistakes. On the other hand, this provision also aims to create the ability for the Court to choose the type and level of penalty in each specific case to suit the nature and severity of the defendant's crime.
However, in practice, in very few cases (about 16.16% of defendants), the Court applies non-imprisonment penalties (such as: Sending to a reformatory school or education in a commune (ward, town), expulsion, declaring not guilty, exempting from criminal liability or punishment, warning, fine, non-custodial reform and expulsion). In the vast majority of cases (about 83.84% of defendants), the main penalty applied by the Courts is a term of imprisonment from 03 months to less than 15 years, in which nearly half of the defendants are not isolated from society (suspended sentence), the rest are forced to serve the sentence in prison for a certain period of time. In our opinion, this reality is due to the following reasons:
- Not fully and correctly aware of the meaning and educational reform effects of the types of punishments prescribed by law for crimes in general and for crimes violating road traffic safety and order in particular;
- Not properly and accurately assessing the nature and level of danger of the defendant's crime in order to choose the appropriate type and level of punishment in each specific case and circumstance;
- The habit (indifferently, lacking a sense of responsibility) of members of the Trial Council at all levels when considering imprisonment as a common punishment applied to all types of crimes without considering and carefully examining other types of punishments other than imprisonment that the Penal Code allows the Court to choose to apply to that crime or criminal...
2.1.3. Some shortcomings and difficulties in the practice of adjudicating crimes against road traffic safety and order
Compared to the 1985 Penal Code, crimes against road traffic safety in the 1999 Penal Code, as well as the 2009 Penal Code, have been separated into independent crimes and have been amended and supplemented more specifically, thus creating favorable conditions for the prosecution agencies to perceive and uniformly apply the provisions of the Penal Code in the process of investigating, prosecuting and trying crimes against road traffic safety in recent years. In addition, the practice of applying current legal provisions on these crimes in recent years shows that there are still some shortcomings and difficulties among the prosecution agencies in the process of resolving cases.
2.1.3.1. Determining causes and faults in road traffic accidents
According to the provisions of Vietnamese criminal law, fault is one of the elements constituting a crime. Fault is the psychological attitude of the subject towards the act.
danger to society and the consequences caused by that act are expressed in the form of intentional or unintentional fault. In the crime of "violating regulations on road traffic control", the fault of the violator is always unintentional. This psychological attitude is the psychological process that occurs in the consciousness of the violator when committing the act of violating regulations on road traffic control. Trial practice shows that in many road traffic cases, the prosecuting agencies have incorrectly determined the causal relationship between the violation and the consequences as well as the fault of the violator (confusing the cause and conditions leading to the accident; between administrative fault and criminal fault), so they have wrongly prosecuted the violator. Here is an example:
At 1:30 p.m. on October 15, 2003, Hoang Van T (without a driver's license) drove a Dream II motorbike on his side of the road to Town X. When he reached the town intersection, he saw a Ware motorbike (driven by Nguyen Van B) going in the opposite direction about 35-40 meters ahead. T signaled and drove to the left side of the road. Because he was driving too fast and couldn't handle the situation in time, B's motorbike crashed into T's motorbike, causing the Dream II to fall onto the road and T suffered minor injuries to his legs and arms. The Ware motorbike fell onto the road and skidded across the road. B was thrown off the motorbike, hitting his head on the road and died on the way to the hospital. The cause of the accident was determined to be that B (who had been drinking) was driving too fast and couldn't handle the situation in time, causing the accident. Hoang Van T was prosecuted and tried for the crime of "violating regulations on driving road vehicles" under point a (no driving license), clause 2, Article 202 of the Penal Code.
We believe that in the above case, the accident was entirely B's fault (speeding, not slowing down when reaching the intersection, not handling the situation in time, causing the accident). As for T, when crossing the street, he observed, signaled for the right of way, and only when he saw the oncoming vehicle quite far away did he drive to the other side of the road. In this case, if B had been driving at the speed limit,
and reduce speed when approaching the intersection, the accident certainly would not have happened. Although T's behavior violated the regulations on driving road vehicles (driving a large-displacement motorcycle without a driver's license), this is only an administrative error, not a criminal error. On the other hand, in the causal relationship between B and T's behavior and the consequences (B's death), the direct cause of the accident was the behavior of the victim B. T's behavior was only a condition (indirect cause) leading to the accident. We cannot agree with the argument of the " cause of the cause " style when we assume that because T did not have a license to drive a motorcycle over 50 cm3 and if T had not driven the motorcycle on the road, B's vehicle would not have been hit and the accident would not have happened. Therefore, in T's behavior, there is still a missing element of the objective aspect (causal relationship) in the basic composition of the crime of "violating traffic laws".
"violating regulations on controlling road vehicles" as prescribed in Clause 1, Article 202 of the Penal Code. In this case, when prosecuting T, the prosecuting agencies confused administrative errors with criminal errors, and between the causes and conditions leading to the accident.
From the above analysis, it can be seen that not in all cases when traffic participants violate road traffic safety regulations are at fault in causing accidents. In order to have a basis for criminal prosecution for these violations, it is necessary to correctly determine the cause of the accident (the causal relationship between their violation and the consequences) and whether the violation is an administrative or criminal fault? If the violation of the road vehicle driver is not the direct cause of the accident, then they are only at administrative fault and that act does not constitute a crime.
2.1.3.2. Handling of cases where specialized motorbikes cause accidents or vehicles participating in traffic cause accidents in places not on the road traffic network
1. According to the Road Traffic Law, "road vehicles" and "vehicles participating in road traffic" are two different concepts. "Road vehicles" are only a (main) part of "vehicles participating in road traffic" because "vehicles participating in road traffic" include road vehicles and specialized motorbikes (Clause 16, Article 3 of the 2002 Road Traffic Law, now Clause 21, Article 3 of the 2008 Road Traffic Law). The practice of investigation, prosecution and trial shows that the prosecuting agencies still have inconsistent views on handling cases of drivers of specialized motorbikes participating in road traffic causing serious consequences.
The first view is that Article 202 of the Penal Code only regulates the crime of "violating regulations on road vehicle control", which means it only regulates the violation of road vehicle drivers but does not regulate the violation of specialized motorcycle drivers. Therefore, in this case, there is no legal basis to prosecute the specialized motorcycle driver for violating road traffic regulations and causing an accident.
The second point of view is that specialized motorbikes are also a source of high danger. Therefore, when participating in road traffic, drivers of specialized motorbikes must comply with road traffic safety regulations as with drivers of other road vehicles. In case the driver of a specialized motorbike violates road traffic safety regulations causing serious consequences, then
also be prosecuted under the provisions of Article 202 of the Penal Code.
2. Cases where road vehicles operate in places not on the road network (such as roads outside fields, alleys, yards, vacant lots, etc.) and cause serious consequences are also often encountered in practice (for example: When driving a car or motorbike on a road outside fields (alleys, alleys, yards, vacant lots, etc.), to avoid a pothole, the driver causes an accident that kills a person on the side of the road or a person sitting behind his vehicle, etc.). In the process of resolving similar cases, there are often different views among the prosecuting agencies.
The first view holds that in principle, to prosecute criminal liability under Article 202 of the Penal Code, the prosecuting agency must determine which specific provision (regulations on lanes, speed, etc., or other acts that endanger people and vehicles participating in road traffic) of the Road Traffic Law has been violated by the vehicle driver. If the violated provision cannot be determined, there is no basis for prosecuting them. According to the 2002 Road Traffic Law, roads include: roads, road bridges, road tunnels, road ferry terminals (Clause 1, Article 3); The road network includes: national highways, provincial roads, district roads, communal roads, urban roads and specialized roads (Article 37), but according to the 2008 Road Traffic Law, the road network is divided into six systems, including national highways, provincial roads, district roads, communal roads, urban roads and specialized roads, stipulated as follows: a).. b)... d) Communal roads are the central administrative roads of the commune with villages, hamlets, villages and equivalent units or roads with neighboring communes; the road has an important position for the socio-economic development of the commune (Point d, Clause 1, Article 39). Thus, in the above case, it is impossible to determine the specific provision of the Road Traffic Law that was violated (because the place where the accident occurred
not part of the road traffic network) so there is no basis to prosecute criminal liability for the crime of "violating regulations on controlling road vehicles" according to Article 202 of the Penal Code.
Another point of view is that in the above case, the violation of the car or motorbike driver constitutes a crime under the provisions of Article 202 of the Penal Code.
We believe that the traffic violations committed by the drivers in both cases mentioned above are of the same nature. Applying Article 202 of the Penal Code to prosecute them for serious violations is completely consistent with the requirements of the fight to prevent and control road traffic accidents. Trial practices in recent years have also followed this direction.
However, to avoid inconsistent perception and application of the law among competent authorities in handling cases of traffic accidents in similar cases mentioned above, we believe that it is necessary to amend and supplement a number of provisions of the Road Traffic Law and Article 202 of the Penal Code to promptly and fully regulate different subjects participating in road traffic whose violations are the cause of serious traffic accidents: pedestrians; drivers of other motor vehicles; drivers of road vehicles in places not part of the road traffic system.
In this regard, we can refer to the legislative experience of the Russian Federation. Article 260 of the 1995 Criminal Code of the Russian Federation stipulates the crime of "Violation of traffic regulations and operation of means of transport", which defines means of transport as: cars, trams,