Solution to Ensure Criminal Responsibility for Under 18s Who Commit Crimes

How dangerous is the crime? Therefore, this regulation needs to be explained in writing by lawmakers so that this regulation is more feasible in practice.

Overcome legislative limitations related to the regime of exemption from criminal liability for people under 18 years old who commit crimes by stipulating that exemption from criminal liability for people under 18 years old is mandatory if they satisfy the requirements of the law, and there is no longer a partial discretionary provision to limit negativity in the process of operation and trial.

- Second, it is recommended to supplement regulations on applying the penalty of expulsion to people under 18 years old who commit crimes.

Regarding the issue of punishment, in Article 98, there are 4 punishments applied to people under 18 years old who commit crimes: warning, fine, non-custodial reform and fixed-term imprisonment. " People under 18 years old who commit crimes are only subject to ..." Therefore, it can be understood that in addition to the 4 punishments mentioned above, the Court cannot apply other punishments to people under 18 years old who commit crimes. However, for people under 18 who commit crimes and are foreigners, the regulation and application of the penalty of expulsion is necessary and suitable to reality. Because, the addition of the penalty of expulsion is to ensure the legality when applying the penalty of expulsion to people under 18 who commit crimes and are foreigners, besides, the application of imprisonment or non-custodial reform for foreigners causes more difficulties when there are barriers in language, culture, reform regime, ... even losing the ultimate purpose of applying penalties for people under 18 who commit crimes, which is to help them reform and correct their mistakes. On that basis, the author recommends adding the penalty of expulsion to the provisions of Article 98 of the 2015 Penal Code.

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- Third, add a separate article regulating suspended sentences for people under 18 years old who commit crimes.

The practice of applying criminal responsibility to people under 18 years old who commit crimes in Go Vap district, Ho Chi Minh city, as stated in Section 2.1 of the thesis, shows that: the number of defendants under 18 years old who are sentenced to fixed-term imprisonment accounts for 100%, in which the number of people under 18 years old who are sentenced to prison but given suspended sentences accounts for a fairly high proportion (in 2015, the rate reached 58%). Thus, with the popularity

The variation of suspended sentences applied to people under 18 who commit crimes shows that it is necessary to add a separate law regulating suspended sentences for people under 18 who commit crimes. This provision is theoretically reasonable for the following reasons:

(1) This also creates a distinction in criminal responsibility between people under 18 years of age and adults in determining criminal responsibility for people under 18 years of age who commit crimes.

(2) In the 2015 Penal Code, the legislator also stipulated that the lenient measure of early release from prison is differentiated for people under 18 years old (Article 106 of the Penal Code) and adults (Article 66 of the Penal Code). In essence, a suspended sentence is similar to a conditional early release from prison, so the provision of a suspended sentence applied specifically to people under 18 years old who commit crimes shows differentiation and consistency with criminal liability measures for people under 18 years old who commit crimes.

Based on the above arguments, we propose to add to the criminal code a separate article stipulating suspended sentences for people under 18 years of age who commit crimes, with conditions of applying more leniency than for adults.

Article … Suspended sentence

1. A person under 18 years of age may be granted a suspended sentence by the Court if he/she meets all of the following conditions:

a) Imprisonment not exceeding 3 years

b) There is at least one mitigating circumstance of criminal liability as prescribed in Clause 1, Article 51 of the Penal Code.

c) First time offender

d) Have a clear place of residence.

d) It is deemed unnecessary to enforce a prison sentence.

2. Other provisions on suspended sentences shall be implemented in accordance with the provisions of Article 65 of this Code.

The provision on suspended sentences for people under 18 years of age who commit crimes is more lenient than for adults, as shown in the condition that only one mitigating circumstance is required for criminal responsibility (compared to many mitigating circumstances in Article 1).

65 of the Penal Code) and the personal condition only requires first-time offenders (compared to the good personal condition in Article 65 of the Penal Code).

- Fourth, propose to remove the regulation in Clause 7, Article 91 of the 2015 Labor Code.

Clause 7, Article 91 of the Penal Code stipulates: "The sentence imposed on a person under 16 years of age who commits a crime shall not be taken into account to determine recidivism or dangerous recidivism."

However, Clause 1, Article 107 of the Penal Code stipulates: “1. A person under 18 years of age who is convicted is considered to have no criminal record if he or she falls into one of the following cases: a) A person from 14 to under 16 years of age; … ”

Thus, according to the provisions of Clause 1, Article 107 of the 2015 Penal Code, a person who commits a crime from 14 to under 16 years old, even if convicted, will not have a criminal record, and therefore will never re-offend or re-offend dangerously as prescribed in Article 53 of the 2015 Penal Code. On that basis, we propose to remove Clause 7, Article 91 of the 2015 Penal Code because it is unnecessary and not in line with the humanitarian spirit when regulating cases of no criminal record for convicted persons in the 2015 Penal Code.

- Fifth, recommendations on the time limit for expunging criminal records for people under 18 years old who commit crimes

Comparing the time limit for expunging criminal records for people under 18 years old who commit crimes in Article 107 of the 2015 Penal Code with the corresponding provisions in Article 77 of the 1999 Penal Code shows that: the time limit for expunging criminal records for people from 16 to under 18 years old who are convicted in the 2015 Penal Code is stricter than the corresponding provisions of the 1999 Penal Code and does not reflect the principle of differentiation of criminal responsibility. Specifically: Clause 2, Article 70 of the 2015 Penal Code stipulates the time limit for expunging criminal records for adults as follows:

2. A convicted person shall have his/her criminal record automatically expunged if, since completing the main sentence or the probationary period, he/she has completed the additional sentence, other decisions of the judgment and has not committed any new crime within the following period:

a 01 year in case of being warned, fined, reformed without detention, imprisoned but with a suspended sentence;

b 02 years in case of imprisonment up to 05 years;

c 03 years in case of imprisonment from over 05 years to 15 years;

d 05 years in case of imprisonment of more than 15 years, life imprisonment or death penalty but the sentence has been reduced.

Therefore, suppose that a person under 18 years of age commits a crime and is sentenced to more than 15 years in prison, then according to the provisions of Article 77 of the 1999 Penal Code: "The time limit for expunging a criminal record for a minor is one-half of the time limit prescribed in Article 64 of this Code", then the time limit for expunging a criminal record for a person under 18 years of age is 2 and a half years (5 times 1/2) from the date of completion of the main sentence, while according to Article 107 of the 2015 Penal Code, the time limit for expunging a criminal record in this case is 3 years (point d, clause 2, Article 107 of the Penal Code), which is stricter than the corresponding provisions of the 1999 Penal Code. This strictness is similar in the case of a person under 18 years of age sentenced to imprisonment from over 05 years to 15 years. On the other hand, the regulation on the time limit for expunging criminal records for people under 18 years of age who commit crimes does not reflect the general principle to differentiate from expunging criminal records for people under 18 years of age who commit crimes as prescribed in the 1999 Penal Code. On that basis, we propose to amend Clause 2, Article 107 of the 2015 Penal Code as follows:

2. Persons from 16 to under 18 years of age who are convicted of very serious intentional crimes or especially serious crimes shall automatically have their criminal records expunged for a period of one-half of the period prescribed in Clause 2, Article 70 of this Code .

3.2. Solutions to ensure the application of criminal responsibility to people under 18 years of age who commit crimes

- Firstly, innovate the organization and personnel work, improve political awareness, professional ethics, and professional capacity of judges.

For the Court, the correct application of the law in the trial of cases committed by people under 18 years old is very important. Only by correctly applying the law can the educational and preventive effects of the handling measures be promoted. Therefore, the Court needs to perform well its functions and duties in cases committed by people under 18 years old, including improving the team of trial officers.

and improving the capacity and qualifications of the team of judges, this is fundamental to improve the quality of trial activities for people under 18 years old who commit crimes, because after all, the work of cadres is the human factor - the subject directly applying the law. Trial of people under 18 years old who commit crimes is more complicated than the trial of adults who commit crimes because the psychological characteristics of this subject are quite special, so it requires more qualifications, experience and professional sensitivity of the trial staff, because the capacity and qualifications of judges are factors that directly determine the quality of law application as well as a fair and just verdict, so improving the qualifications of judges is necessary.

To achieve that goal, the departments regularly open training courses and professional development courses for judges and court officials; have training and retraining programs for the team of judges. There are policies to encourage judges to actively study and improve themselves to improve their qualifications, to meet the assigned tasks. Timely update new documents and specialized documents on the official website of the department. Build a team of judges in the direction of specializing in adjudicating cases with people under 18 years old as suspects and defendants through a selection process that must be screened and proven from the actual trial, the quality of criminal judgments that have been tried, highly appreciated by colleagues, superiors and even other prosecution agencies, at the same time promptly detect civil servants and judges with talent and expertise in criminal trials to help, foster and provide specialized training. Continuously analyze, evaluate, and learn from the annulled judgments, find out the causes so as not to make the same mistakes in other cases.

There needs to be a change in the thinking and awareness of all agencies conducting proceedings, from the investigation agency, the Procuracy, and the Court. Because although the Penal Code has changed and transformed significantly in the application of criminal responsibility to people under 18 years old, if there is only a change in the Court, it will not be effective because when trying people under 18 years old, although the Judge really wants to apply the lowest sentence for the defendant or really wants to give the defendant a suspended sentence because the defendant's criminal behavior is not dangerous to society and the defendant has many mitigating circumstances... But if the sentence is

If the defendant is sentenced to a sentence lower than the one recommended by the Procuracy or is given a suspended sentence while the Procuracy recommends a prison sentence, the sentence will certainly be appealed by the Procuracy. In this case, most judges will choose the safe option of issuing a sentence within the range recommended by the Procuracy for the defendant.

It is necessary to change the mechanism for supervising the litigation activities of judges. Currently, in the Court sector, there is a reality that if a judge of the first instance has a sentence that is amended in a more severe direction or from a suspended sentence to a prison sentence, and from two sentences that are amended in a more severe direction as above, the judge will be noted and will be criticized, warned, or more seriously, suspended during the next reappointment of the judge. In the perception of the appellate level, when the first instance court declares a light sentence, it means there is negativity. From the perception and thinking of the entire vertical system, judges do not dare to apply other judicial measures or declare a sentence in accordance with the spirit of the 2015 Penal Code, because if applied correctly, it will affect the political life of the judge himself. Therefore, it is recommended to change the mechanism for supervising judges and to change the thinking and awareness in all agencies conducting litigation, especially in the Court sector.

Next is the appointment and reappointment of judges, the subjects of appointment of judges need to be expanded, not only officials in judicial agencies but also jurists and lawyers, those with a law degree or higher. In particular, on November 24, 2014, the National Assembly passed the Law on the Organization of People's Courts, this is an important law on the organization of the state apparatus in the spirit of the 2013 Constitution, institutionalizing the ideology, judicial reform guidelines and building a socialist rule of law state, in which it is necessary to properly implement the regulations on standards, functions, and tasks of judges and assessors, ensuring the implementation of the principles of organization and operation of the People's Court.

- Second, adequate treatment for Judges and People's Assessors

In trial, the Jury and Judge are independent and only obey the law. Only when the Judge and Jury are independent will they only obey the law and vice versa.

At that time, the quality of the trial and the personal responsibility of the members of the Trial Council will be improved, ensuring objectivity in the application of the law.

In addition to implementing solutions to improve the capacity, expertise and professional ethics of judges, it is also necessary to improve the expertise of the People's Jury to effectively resolve and adjudicate cases. To achieve this, the following measures can be implemented:

Strengthen professional training for the People's Jury, perfect legal regulations, clearly stipulate the criteria for selecting Jury, and the ethical and legal standards of Jury. Because the People's Jury is a member of the Trial Council, directly participating in the trial, the People's Jury participates in the trial in larger numbers than the Judges but votes by majority, Judges are equal to the Jury, so it is necessary to improve the qualifications of the People's Jury to ensure the quality of the trial and fair judgments.

Trial activities are very complex thinking activities, requiring a lot of time, effort, and pressure, requiring intelligence, courage, and high professional expertise. Therefore, it is necessary to study the policy of remuneration and training for judges and jurors in accordance with the judicial reform process, in accordance with the price policy and the actual situation of society. Only when the salary of judges and jurors meets the living needs of themselves and their families, will they feel secure in their work, invest time in studying the law, studying case files, limiting the influence of negative factors and being impartial and objective in the trial. In addition, it is also necessary to implement a reward regime commensurate with work efficiency, quality, and quantity of cases resolved annually.

In addition, the Chief Justice of the People's Court must manage and assign the Jury to participate in trials in a reasonable manner, in accordance with the capacity and legal and professional qualifications of each Jury, so that all Jury members can participate in work and study equally, avoiding the case of Jury members participating in too many trials and having Jury members not participating in any trials.

In the trial of people under 18 years old, because they are still in their infancy, the necessary clothing is close and friendly, so for the trial

In this court, the presiding judge does not need to wear a robe, but only a white shirt.

Currently, the provincial court has a specialized court for family and people under 18 years old, but the district court does not have a specialized court for family and people under 18 years old. Therefore, it is necessary to establish a specialized court for family and people under 18 years old at the district level. The judges of this court should be experienced, gentle, and forgiving... so that when they try cases, they can understand the psychology of the children. For cases where the defendant denies the crime (at this age, due to their immature thinking, children often think that if they do not plead guilty, they will not be punished), the judge must be even more gentle, not yelling, scolding... which will only make the children more afraid.

- Third, improve the quality of investigation work.

In order to be able to impose a legal penalty, in accordance with the objective truth of the case, the investigation stage plays an important role in that success. In the judicial reform strategy, the Court is considered the center, the trial is the focus. The trial is an independent procedural stage. Whether the case is clear, clear or the verdict is fair and just depends on the quality of the activities of the investigation agency, the prosecution agency and the quality of the activities of the judicial support agencies. Therefore, in order to contribute to improving the effectiveness of criminal investigation, first of all, in terms of organization, officers need to focus on improving professional qualifications and sense of responsibility in work, regularly educating political ideology, ethics and lifestyle for officers and soldiers, equipping officers with essential equipment and technical means to serve investigation activities.

- Fourth, strengthen and innovate the work of supervising the application of criminal law in general and the application of criminal responsibility to juvenile offenders in particular.

Currently, criminal judgments posted on the electronic information portal have created favorable conditions for subjects to monitor the law enforcement activities of the Court. Members of representative agencies, members of the political system and all

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