Some Violations and Mistakes in Applying the Law to Minors in Quang Ngai Province

Regarding the penalty of “ Delayed imprisonment ”, according to statistics from the two-level People’s Court of Quang Ngai province, imprisonment is always the most applied penalty, accounting for the vast majority of sentences. According to the opinions of the judges, imprisonment is considered effective, without many problems in the application process.

In addition, the two-level People's Court of Quang Ngai province often applies " suspended sentences " during the trial process to create conditions for defendants who are minors to continue studying, making a living and demonstrating their repentance and reformation in a normal social environment under the supervision and education of agencies, organizations, educational institutions, and families where they work, study, or reside. In order to create a basis for the Court to consider granting suspended sentences to offenders (including minors who commit crimes), on October 30, 2000, the Government issued "Decree No. 61/2000/ND-CP guiding the execution of suspended prison sentences ". The Decree fully and specifically stipulates the family's commitment responsibilities during the probation period of the offender. This is an effective combination, consistent with the Party and State's policy of always paying more attention to education and reform than punishment for juvenile offenders.

We assess that the courts have correctly applied criminal law to resolve the following juvenile crime cases.

Case 1: At around 7:30 p.m. on April 26, 2012, while Tru, Loi, and Vuong were attending a drinking party at Thien's house (Tru's older brother), Nguyen Thi Thuy Dung came to sit and talk with Tru. A while later, Tru took the initiative to invite Vuong, Loi, and Dung to go sing karaoke and they all agreed, so Tru took Nguyen Minh's family motorbike to take Dung, Loi, and Vuong to Hoai An karaoke bar in Dong Xit (Nghia Hanh) to sing and drink beer. Here, the group drank 15 bottles of Dung Quat beer (Dung only drank 1 glass). While Dung was sitting in the karaoke room, Tru called Vuong and Loi outside and invited them, " Do you guys want to play (have sex) with Dung? We'll go play with Dung later, but whoever ejaculates into Dung's vagina and gets her pregnant will have to suffer. " Both Vuong and Loi agreed to have sex with Dung. At around 10 p.m. the same day, after paying for the karaoke, Tru drove a motorbike carrying Dung and Loi to the Hoa Hong motel to rent a room, but the room was full, so Tru drove Dung and Loi to rent a room at the Luc Bat motel in Cho Chua town, district.

Nghia Hanh to stay overnight, and Vuong was given a ride by a passerby to come later. Here, the defendants had sexual intercourse with Nguyen Thi Thuy Dung, specifically: Tru had sexual intercourse with Dung twice; Loi had sexual intercourse with Dung twice and Vuong had sexual intercourse with Dung once. At the time the defendants had sexual intercourse with Dung, Dung was only 12 years, 7 months and 17 days old, so the defendants' actions constituted the crime of " Rape of children " as prescribed in Clause 4, Article 112 of the Penal Code.

In this case, defendant Nguyen Tan Tru was both the mastermind and the active perpetrator. Tru took advantage of his acquaintance with Dung to take Dung and his accomplices to rent a room, enticed and incited Loi and Vuong to commit the crime, and Tru directly had sexual intercourse with Dung twice. When Tru invited defendants Nguyen Loi and Nguyen Minh Vuong to have sexual intercourse with Dung, they not only did not stop him but immediately agreed, and the defendants also committed the crime very actively.

However, after committing the crime, the defendants confessed honestly, repented; influenced their families to compensate part of the damage to the victim; the defendants had good personal records, no criminal record; at the trial, the legal representative of the victim asked for a reduction in the sentence for the defendants, so it is necessary to consider reducing part of the sentence for the defendants. In addition, when committing the crime, the defendants were all minors, so the Court applied Article 69, Clause 1, Article 74 of the Penal Code to punish the defendants.

The Trial Panel declared: The defendants Nguyen Tan Tru, Nguyen Loi, Nguyen Minh Vuong committed the crime of “ Raping children ”. Applying Clause 4, Article 112; points b, p, Clause 1, Clause 2, Article 46; Article 69; Clause 1, Article 74 of the Penal Code, sentenced defendant Nguyen Tan Tru to 12 (twelve) years in prison, sentenced defendant Nguyen Loi to 9 (nine) years in prison, and sentenced defendant Nguyen Minh Vuong to 9 (nine) years in prison.

Case 2: At around 4:00 p.m. on November 19, 2012, Pham Van Teo went to the Quynh Trang Internet cafe of Nguyen Van Truc in the same village to play games and met Vo Van Vinh, born in 2001 and Nguyen Van Huong, born in 1998, both from Tay village, An Vinh commune, Ly Son district, Quang Ngai province, who were also playing games at the cafe. Here, Huong asked Teo, " Why did you take my Nick (username used for chatting)? ", Teo replied, " No. "

" Yes " then Huong used his hand to hit Teo in the face, but was stopped by the owner Truc so no injuries occurred. After that, Teo paid the bill and went to Mrs. Tran Thi Thom's grocery store nearby to buy rice paper to eat. Vo Van Vinh and Nguyen Van Huong followed him to the store and Huong threatened Teo " After you finish eating, come out here and die with me ", while Vinh went to lead Teo's bicycle through Mrs. Tran Thi Dao's yard next to Mrs. Thom's grocery store. While eating rice paper, Teo saw a Thai knife in a plastic cup on the table (this knife was usually used by Mrs. Thom for buying and selling at the store). Teo secretly took the knife and hid it in his pants with the intention that if Huong and Vinh beat him, Teo would use the knife to fight back, then went to Mrs. Dao's house to get his bicycle. At this time, Huong and Vinh were sitting and talking with Vo Tan Linh, born in 1998 in Tay village, An Vinh commune, Ly Son district and Nguyen Thanh Trong, born in 1996 in Dong village, An Vinh commune, Ly Son district in Mrs. Dao's yard. Teo got on his bike and was about to leave, but Vinh held him back. Teo got off the bike and Vinh asked, " Did you take Huong's nick? " Teo replied, " No ", Vinh immediately used his hand to hit (slap) Teo in the face once. Teo did not say anything, Vinh continued to use his hand to hit (slap) Teo in the face once more (Teo did not suffer any major injuries), then Vinh turned to Huong and laughed. At this time, Teo was standing close to Vinh. Teo used his right hand to pull out a knife hidden in his person and stabbed Vinh once in the back, then pulled out the knife and held it in his hand. Vinh was stabbed and ran away, staggering for a while before falling to the ground unconscious. Seeing this, some of Vinh's friends called his family to take Vinh to the Ly Son District Medical Center for emergency treatment, then transferred him to Da Nang Hospital for further treatment, but Vo Van Vinh died at 5:00 a.m. on November 20, 2012 at Da Nang Hospital. After stabbing Vinh, Pham Van Teo threw away the knife at the scene and rode his bicycle to the Ly Son District Medical Center, then went to the police station to surrender and report all his crimes.

Pham Van Teo's behavior is especially dangerous to society, directly infringing upon the life of Vo Van Vinh when Vinh was only 11 years, 4 months and 13 days old, so it is sufficient to constitute the crime of " Murder " according to Point c, Clause 1, Article 93 of the Penal Code. Although when committing the crime, the defendant Pham Van Teo was a minor, the defendant was over 14 years old (14 years, 3 months and 2 days), so the defendant must bear criminal responsibility for very serious intentional crimes and special crimes.

serious. In this case, the crime that defendant Pham Van Teo committed is an especially serious crime, so the defendant must bear criminal responsibility for the crime he committed in order to deter, educate the defendant and prevent crime in general.

However, the defendant Pham Van Teo is a minor, at the time of committing the crime the defendant was only 14 years, 3 months and 2 days old, so his cognitive ability is still limited; the defendant has a good personal history, has no criminal record; committed the crime in a case of being mentally provoked by the illegal acts of the victim and others; immediately after committing the crime, the defendant surrendered to the police; during the investigation, prosecution and trial, the defendant confessed honestly, repented and reformed; the defendant's family compensated the victim's family with 30,000,000 VND, the victim's family withdrew the civil complaint and asked for a reduction in the defendant's sentence, so the court considered these as mitigating circumstances for the defendant's criminal responsibility when sentencing. The Trial Panel declared the defendant Pham Van Teo guilty of the crime of " Murder ", applying Point c, Clause 1, Article 93; Points b, d, p, Clause 1, Clause 2, Article 46; Article 69; Clause 2, Article 74 of the Penal Code, sentenced defendant Pham Van Teo to 03 (three) years in prison.

Case 3: At around 6:00 p.m. on February 1, 2015, Huynh Ngoc Tuan, Vo Van Thuong, Nguyen Van Trinh, Tran Beo, Dinh The Hoang, Bui Van Sin, Tran Ngoc Tuan, Tran Quang Du, Tran Le Minh Trong, Ngo Van Trung (also known as Trung Dau Do), Tran Duy Anh, Vo Van Hang, Nguyen Danh Loc, Le Tan Nam (all residing in Duc Loi commune, Mo Duc district, Quang Ngai province) went drinking and singing karaoke at An Thinh karaoke bar in Vinh Phu village, Duc Loi commune, Mo Duc district.

While singing karaoke, Trung borrowed Tran Duy Anh's motorbike to go to the grilled duck restaurant of Mr. Huynh Van Khanh (in Vinh Phu village, Duc Loi commune) to buy snacks for a man named Chuc (who worked as a fisherman with Trung). There, Trung met a group of young men drinking, including: Nguyen Tan Luc, Cao Van Truyen (both living in An Mo village, Duc Loi commune), Le Huu Phuc, Nguyen Tuan Thien (both living in Tan Dinh village, Duc Thang commune, Mo Duc district). At this time, Luc looked at Trung and talked normally with the people drinking together, Trung did not hear clearly but thought that Luc said something about him so the two sides argued. At the same time, Trong at the karaoke bar called Trung and asked " Where have you been for so long ?" Trung told Trong that there was a conflict with Luc at the grilled duck restaurant and told Trong to run up. After that, Trung

continued to call Trinh and said " Come here, I have someone causing trouble at the grilled duck restaurant ". Hearing that, Trinh, Trong, Sin, Thuong, Du and Tuan went on two motorbikes to the grilled duck restaurant to meet Trung. Seeing that Trung's group had arrived in large numbers, Luc went inside the restaurant to hide and called Tran Dinh Vuong (residing at: An Mo village, Duc Loi commune) and said " I was beaten by some Duc Loi guys at the grilled duck restaurant ". When entering the grilled duck restaurant, Trong grabbed 2 bottles of Dung Quat beer from the restaurant and threw them at the table of Phuc, Thien, and Truyen but did not hit anyone. Seeing that, Mr. Huynh Van Khanh and Nguyen Van Trinh intervened so the consequences did not happen and everyone left. Trung brought food for Mr. Chuc; Trinh, Trong, Tuan, Sin, Thuong, Du returned to An Thinh karaoke bar to pay the bill and then the group invited each other to go to Du's house to continue drinking, but because there were not enough motorbikes, Trinh, Trong, Sin, Thuong, Du, Beo, Tuan, Hang, Anh, and Hoang left first. Tuan, Nam and Loc stayed behind.

After being slashed by Tran Dinh Vuong with a sword, causing a slight injury to the palm of his hand at An Thinh karaoke bar, Tuan went home, but when he heard Tran Quang Du say that Vuong's group was coming to cause trouble at Du's house, Tuan grabbed the sword from Du's hand to go and beat Vuong's group, but Du did not give it to him. Tuan then took the initiative to pick up a piece of wood on the road to beat Vuong's group. When he saw Vuong and Dat (going in the opposite direction, facing Tuan) at Mr. Do and Mrs. Anh's house (near Du's house), Tuan used both hands to hold a piece of wood and hit Vuong's head twice in a row, causing Vuong to fall to the ground unconscious. Only when Luc ran to Vuong with a knife and chased after him with Dat did Tuan run back to Trung's house. Vuong was taken to Quang Ngai General Hospital for emergency treatment by his family, then transferred to Da Nang General Hospital for further treatment. On the evening of February 2, 2015, Vuong died. According to the Forensic Examination Conclusion No. 170/PC54(GĐPY) dated February 6, 2015 of the Criminal Techniques Department of Quang Ngai Provincial Police, the cause of death of Tran Dinh Vuong was due to a head injury, causing traumatic brain injury, skull fracture, cerebral hemorrhage leading to death. The behavior of defendant Huynh Ngoc Tuan is dangerous to society, the defendant used a dangerous weapon (a piece of bamboo with a diameter of about 05 - 06cm, about 01m long) to hit the head, a vital area on Tran Dinh Vuong's body, causing a skull fracture, cerebral hemorrhage leading to death, the behavior of

The defendant directly violated the life of another person, so there were enough elements to constitute the crime of " Murder " stipulated in Article 93 of the Penal Code and needed to be severely punished to deter, educate the defendant and prevent this type of crime in general. However, because the victim Tran Dinh Vuong had used a sword for no reason to slash and injure Huynh Ngoc Tuan's right palm at An Thinh karaoke bar first and proactively invited Luc, Dat, Thien, Phuc to take weapons and weapons to find and beat Tuan's group. Therefore, the criminal act of the defendant Tuan was partly the fault of the victim Tran Dinh Vuong. Therefore, the People's Procuracy of Quang Ngai province prosecuted the defendant Huynh Ngoc Tuan for the crime of " Murder " stipulated in Clause 2, Article 93 of the Penal Code with grounds, the right person, the right crime. The Trial Panel considered that it was necessary to isolate the defendant from society for a period of time to deter, educate the defendant and prevent this type of crime in general.

During the investigation and at the trial, the defendant Huynh Ngoc Tuan confessed honestly, repented of his crime; influenced his family to compensate 10,000,000 VND to the family of the victim Tran Dinh Vuong; the defendant has a good personal history, has no criminal record; the defendant's family has contributed to the resistance war against the US (Tuan's grandmother and aunt were awarded the 3rd class Resistance Medal; the defendant Tuan's father was awarded the 2nd class Resistance Medal); the defendant once participated in fishing in Hoang Sa and Truong Sa, contributing to protecting the sovereignty of the Fatherland; at the trial, the legal representative of the victim asked for a reduction in the defendant's sentence. These are mitigating circumstances of criminal responsibility stipulated in Point b, p, Clause 1, Clause 2, Article 46 of the Penal Code, so the Court considered and partially reduced the defendant's sentence when deciding on the sentence. The Trial Panel declared the defendants Huynh Ngoc Tuan and Vo Van Thuong guilty of the crime of “Murder” ; Nguyen Tan Luc guilty of the crime of “Intentionally causing injury” and the crime of “Disturbing public order” ; Tran Tan Dat and Nguyen Van Trinh guilty of the crime of “Disturbing public order” , applying Clause 2, Article 93; Points b, p, Clause 1, Clause 2, Article 46; Article 20; Article 33 of the Penal Code, sentencing the defendant Huynh Ngoc Tuan to 09 (nine) years in prison, applying Clause 2, Article 93; Points b, p, Clause 1, Article 46; Article 20; Article 33 of the Penal Code, sentencing the defendant Vo Van Thuong to 08 (eight) years in prison, applying Clause 2, Article 104; Points b, p, Clause 1, Article 46; Article 69; Article 74; Article 33 of the Penal Code, sentencing the defendant Nguyen Tan Luc to 03 (three) years in prison.

years in prison, applying Clause 1, Article 245; Point p, Clause 1, Article 46; Article 69; Article 74; Article 33 of the Penal Code, sentencing defendant Nguyen Tan Luc to 09 (nine) months in prison, applying Article 50 of the Penal Code, combining the sentences of the two crimes, forcing defendant Nguyen Tan Luc to serve the combined sentence of the two crimes of 03 (three) years and 09 (nine) months in prison.

2.3. Some violations and mistakes in applying the law to minors in Quang Ngai province

In the practice of applying criminal law to try criminal cases against minors who commit crimes in Quang Ngai province, we find that there are still certain violations and mistakes.

In addition to applying the main penalties, during the trial, the two-level Court of Quang Ngai province rarely applied the principles of handling when trying juvenile offenders with the motto " taking education and prevention as the main ", still focusing on applying penalties to juvenile offenders.

Table 2.1. Summary of results of trials of crimes committed by minors (from 2012-2016)

Trial results

Type of crime

Non-custodial reform	Suspended sentence	Prison	Other penalties	Number of cases tried
Robbery	5	9	14	0	28
Robbery	5	11	21	0	37
Theft of property	12	12	24	0	48
Intentional injury	7	12	18	0	37
Illegal drug trafficking	0	2	0	0	2
Other crimes	2	12	5	3	22
Penalties applied to the defendant are juveniles	31	58	82	3	174

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Chart 2.3. Results of trial and punishment of juvenile criminals in 2012 - 2016

Source: Office of People's Court of Quang Ngai province

Thus, in general, the majority of sentences for juvenile offenders in Quang Ngai province during the period 2012-2016 applied prison sentences (including suspended and non-suspended sentences), in which the rate of prison sentences without suspension was higher than that of prison sentences with suspension.

The decision on penalties for juvenile offenders is sometimes flawed, in some cases the penalty is too severe, in other cases the penalty is too light; some courts do not properly apply the regulations on fines for juvenile offenders. One of the conditions for applying fines to juvenile offenders is that they must have income or private property, but sometimes the court applies fines to juvenile defendants who have no income or private property.

The two-level court did not fully apply the principle of fairness in the process of deciding on the punishment (QĐHP) for juvenile offenders.

Example 1: Truong Hoang Huy, born on August 2, 1994; at the time of committing the crime was 17 years, 4 months, and 5 days old. On December 7, 2011, due to a conflict with Mr. Tin, defendant Thang invited Bui Long Ha, born on January 9, 1994; Phan Ngoc Tai, born on September 12, 1994 to go find Mr. Tin to fight; when leaving, defendant Huy secretly took a Thai knife and hid it on his person; when

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