Some Errors and Difficulties in Applying Aggravating Circumstances of Criminal Responsibility

Hieu used his hand to push Quan's hand away and ran into the restaurant's kitchen, got a knife about 20cm long, made of metal, with the sharp end in his right hand, ran to where Quan was standing, stabbed Quan once in the left armpit, then Hieu ran inside the restaurant. De went to help Quan out of the restaurant, while walking De looked at Hieu, making Hieu angry, thinking De was challenging him, so he grabbed the knife and ran to stab De once in the right back. Hieu then ran out of the restaurant and threw the knife on the grass on the side of the road. Quan and De were taken to the emergency room at Binh Long Town General Hospital and then transferred to Binh Duong Province General Hospital (512-bed hospital) for further treatment. The victims Vo Anh Quan and Truong Luu Hien De have filed a petition requesting criminal proceedings against To Minh Hieu.

Forensic examination conclusion on injuries No. 172 and No. 174/2015/TgT dated June 12, 2015 of the Center for Medical and Forensic Examination of Binh Phuoc province concluded:

- Vo Anh Quan suffered a penetrating wound to the left chest with pneumothorax and a small amount of left pleural effusion. He was treated with internal medicine, and currently there is no pleural thickening; a scar on the left axillary line behind the chest is (2x02,)cm in size. The current rate of bodily injury caused by the injury is 6%.

-Truong Luu Hien De had a wound on his right back with pneumothorax and hemothorax and had surgery to drain the pleura; a scar on his right back next to his right spine measuring (5.5x0.2)cm; a scar on the right mid-axillary drainage tube measuring (2x1)cm and (2.5x0.2)cm, currently there are no sequelae of pleural thickening. The current rate of bodily injury caused by the injury is 11% (eleven%).

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Indictment No. 21/CTr-VKS-HS dated May 5, 2016 of the People's Procuracy of Binh Long town prosecuted To Minh Hieu for the crime of "Intentionally causing injury" under points a, c, clause 01, clause 02, Article 104 of the Penal Code.

With the nature and content of the case as above in Judgment No: 29/2016/HSST dated June 30, 2016, Binh Long Town People's Court, applies: Clause 02, Article 104, Point g, Clause 01, Article 48, Point b, p, Clause 01, Clause 02, Article 46 of the Penal Code. Sentence T Minh Hieu to 03 (three) years in prison. The term is calculated from the date of temporary detention (January 21, 2016).

Comment : On March 31, 2015, defendant Hieu used a knife to cause injury, causing 6% damage to Vo Anh Quan's health and 11% damage to Luu Hien De's health (both De and Quan filed a request for handling).

Criminal liability for Hieu). But before that, the defendant Hieu had a previous conviction on June 7, 2013, sentenced by the People's Court of Binh Long town to 12 months in prison for the crime of intentionally causing injury. He had completed the sentence but had not had his criminal record cleared. Now, if he continues to commit a crime, he is a recidivist. The defendant must bear the aggravating circumstance of criminal liability according to Point g, Clause 01, Article 48 of the Penal Code. The circumstances: Using dangerous weapons or using tricks to cause harm to many people and Committing the crime many times have been applied as aggravating circumstances to determine the criminal liability framework, so the People's Court of Binh Long town did not apply it as an aggravating circumstance of criminal liability according to the provisions of Article 48 of the 1999 Penal Code, which is in accordance with the provisions of the law.

The above results were achieved due to favorable conditions such as

The regulations on the application of aggravating circumstances for criminal liability are relatively fully guided by the Supreme People's Court in Resolution 01/2006/NQ-HDTP dated May 12, 2006 of the Council of Judges of the Supreme People's Court. Every year, the Supreme People's Court and the People's Court of Binh Phuoc province summarize, report, and train judges on the consistent application of the law in general and aggravating circumstances for criminal liability in particular. At the same time, in recent years, the People's Court of Binh Long town has actively coordinated with the agencies conducting the proceedings, especially the People's Procuracy of Binh Long town, to have many solutions to improve the quality of trials and settlement of all types of cases, especially criminal cases, to avoid wrongful convictions and avoid missing criminals. The qualifications and capacity of the team of judges and people's assessors are increasingly improved, closely following the provisions of the law on the application of aggravating circumstances for criminal liability to ensure the principles of fairness and objectivity.

2.2.2.2. Some errors and difficulties in applying aggravating circumstances of criminal liability

- Applying aggravating circumstances incorrectly

It is the Court's decision to apply aggravating circumstances that are not in accordance with legal provisions, leading to the decision to impose a heavy sentence on the defendant.

Judgment No. 14/2016/HSST dated April 1, 2016 of the People's Court of Binh Long town, tried defendant Phan Van H, for the crime of Theft of property, applied point c, clause 02, Article 138, point p, clause 01, Article 46, point g, clause 1, Article 48 of the 1999 Penal Code, sentenced defendant H to (three) years and 6 (six) months in prison, the term calculated from November 4, 2015.

In this case, defendant H has a bad personal history and has 4 previous convictions: On September 20, 2006, he was sentenced by the People's Court of Cai Rang District, Can Tho City to 9 months in prison for the crime of Theft of property ; on December 23, 2008, he was sentenced by the People's Court of Dong Xoai Town, Binh Phuoc Province to 12 months in prison for the crime of Theft of property ; on July 16, 2010, he was sentenced by the People's Court of Chau Thanh District, Tay Ninh Province to 3 years in prison for the crime of Theft of property ; On March 12, 2013, the People's Court of Ben Luc district, Long An province sentenced the defendant to 9 months in prison for the crime of theft of property . The defendant has completed the sentence but has not had his criminal record cleared. This time, the defendant must bear the increased criminal liability framework of dangerous recidivism according to the provisions of Point c, Clause 02, Article 138 of the Penal Code. To try the defendant with the aggravating circumstance of dangerous recidivism but still apply Point g, Clause 1, Article 48 with the aggravating circumstance of dangerous recidivism is incorrect because the dangerous recidivism circumstance has been applied to try the defendant according to Point c, Clause 2, Article 138, then the aggravating circumstance according to Point g, Clause 1, Article 48 of the 1999 Penal Code cannot be continued to be applied, which is disadvantageous to the defendant H.

- No aggravating circumstances apply.

Judgment No. 04/2016/HSST dated January 19, 2016 of the People's Court of Binh Long Town. Trial of Phung Huu Nhat T, born in 1996 and Nguyen Thanh L, born in 1998. At about 10:00 a.m. on October 9, 2015, T invited L to steal a Samsung brand TV, 32-inch flat screen, model: UA32H4303AK, at the time of appropriation, worth 6,500,000 VND (six million five hundred thousand VND). The People's Court of Binh Long Town applied Clause 1, Article 138, Point p, Clause 1, Article 46 of the 1999 Penal Code to sentence Phung Huu Nhat T to 18 months in prison and Nguyen Thanh L to 6 months in prison, suspended sentence. In this case, Phung Huu Nhat T incited Nguyen Thanh L to commit a crime, but did not apply the aggravating circumstances as prescribed in Point n, Clause 1, Article 48 of the 1999 Penal Code to decide the penalty for defendant T, which is an omission.

Some difficulties and problems in applying aggravating circumstances of criminal liability

Circumstances such as crimes against teachers, grandparents, fathers, mothers, and caregivers in crimes such as intentional injury and murder have not yet been guided by competent authorities, so the agencies conducting the proceedings are still confused.

For example: grandparents, biological parents, parents-in-law, adoptive parents... teachers come in many forms: teaching at school, teaching at home, tutoring, teaching culture, teaching sports... So which cases are subjects covered by 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, are controversial issues. In fact, recidivism of the same crime (or the same type of crime) intentionally is more dangerous than recidivism of different crimes (many crimes with previous convictions for the same crime or the same type of crime 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) intentionally 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 recidivated, 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 tight 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 unified. The circumstance of a crime of a hooligan nature is a difficult circumstance in determining the content. There is a point of view that only cases of drastic behavior can be considered hooliganism. Another point of view is that reckless behavior can be considered hooliganism.

Another case is if a person both incites and uses children (people 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), should the general aggravating circumstance of inciting minors to commit crimes be applied?

In case the framing circumstance is not applied 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 as a general aggravating circumstance? For example: A stole property worth 200

million dong and committed assault to escape. In this case, A must be tried under Clause 3, Article 138 of the Penal Code for 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 to determine the sentence, 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 [21, 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 stipulated 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, should Clause 3 or Clause 4 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), and if Clause 3 is applied, what basis is there to increase the criminal liability for 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 1999 Penal Code, which circumstance will be applied to increase the criminal liability of the offender?

2.2.2.3. Causes of errors, difficulties and problems in applying aggravating circumstances of criminal liability

The application of aggravating circumstances in criminal cases in practice still faces many shortcomings and limitations due to many different reasons, but from the students' point of view, 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 and correctly reflect the nature and legal significance of the circumstances that increase the danger to

social aspects of crime. Therefore, the regulation of aggravating circumstances is still not complete, not fully reflecting 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 crimes. Many circumstances are regulated in an arbitrary and easy-to-arbitrary manner when applied. Some circumstances are common but have not been clearly regulated 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 not reasonable, leading to great difficulties for the applicator, 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 building aggravating penalty frameworks in some cases is not scientific, leading to difficulties in application. For example, the provisions in Clause 2, Clause 3 and Clause 4, Article 111, Article 112 - Penal Code 1999 on the Crime of Rape and the Crime of Child Rape, for example.

Second , most of the aggravating circumstances have not been guided, especially the aggravating circumstances for the framework. 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 systematicity. 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 of those conducting the proceedings is still limited and uneven, leading to the application of aggravating circumstances of criminal liability in practice will be difficult and inaccurate. Because aggravating circumstances are not prescribed for research but for practical application, how to apply them is under the authority of those conducting the proceedings. Therefore, the limited and uneven level of the litigants will lead to a certain aggravating circumstance being misunderstood or

understood in many different ways, especially between the levels of trial. In fact, many cases at the first instance level have correctly applied aggravating circumstances, but the appellate level considers it wrong, while the final judgment level considers it correct to apply the same as the first instance level.

In general, the level of the person conducting the proceedings (mainly judges, investigators, prosecutors) is very important in applying the law in general and the aggravating circumstances of criminal liability in particular. Because there are types of aggravating circumstances that cannot be guided. In cases where guidance has been given, the content cannot be completely clear because the reality of crime is very diverse and rich.

Chapter 2 Conclusion

On the theoretical basis of the application of aggravating circumstances of criminal liability according to the Vietnamese criminal law from 1945 to 2009, the student presented in chapter 1 of the thesis. In chapter 2 of the thesis, the student presented the content of the circumstances (15 circumstances) aggravating criminal liability according to the provisions of the 2015 Vietnamese Penal Code; next, the student presented a brief overview of the People's Court of Binh Long town, Binh Phuoc province; related to the practical application of aggravating circumstances of criminal liability according to the provisions of the 1999 Vietnamese Penal Code (amended and supplemented in 2009) in the locality of Binh Long town, Binh Phuoc province in the period 2013-2017 (before the 2015 Penal Code took effect). In the practical connection section, the student pointed out some achieved results; some existing limitations, problems and causes of the existence and limitations. The content of chapter 2 of the thesis will be the basis for students to propose some solutions to ensure the correct application of the provisions of criminal law on aggravating circumstances of criminal liability in chapter 3 of the thesis.

Chapter 3

SOLUTIONS TO ENSURE THE CORRECT APPLICATION OF AGGRAVATING CIRCUMSTANCES OF CRIMINAL RESPONSIBILITY ACCORDING TO THE PROVISIONS OF VIETNAMESE CRIMINAL LAW IN BINH LONG TOWN,

BINH PHUOC PROVINCE

3.1. Perfecting the provisions of Vietnamese criminal law on aggravating circumstances of criminal liability

3.1.1. It is necessary to provide guidance on the application of aggravating circumstances that the Supreme People's Court's Judicial Council has not yet provided guidance on or has provided guidance on but is not appropriate, and needs to be revised and supplemented accordingly.

Aggravating circumstances are one of the bases for the panel of judges to decide on punishment. Currently, there is no unified understanding of some aggravating circumstances due to the lack of specific guidance. For example, is a person who “ has committed a dangerous recidivism, has not had his criminal record expunged, and commits a new crime…” considered a dangerous recidivism? Because point b, clause 2, Article 53 of the 2015 Penal Code (point b, clause 2, Article 49 of the 1999 Penal Code) only stipulates that a dangerous recidivism is: Having committed a recidivism, has not had his criminal record expunged, and commits a crime intentionally.

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

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

- In case of rape of a person under 13 years old but there is one of the circumstances in Clause 3, Article 142 of the 2015 Penal Code (Clause 3, Article 112 of the 1999 Penal Code), it is necessary to apply Clause 3, Article 142 of the 2015 Penal Code for trial.

- Guidance on applying the circumstances of “murder of many people” and “murder by highly dangerous tools, means or methods” in the direction of: Only apply the aggravating circumstance of “murder of many people” 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 to commit the crime. Only apply the aggravating circumstance