Subject and Scope of Thesis Research:

Major and reliable scientists in the country, such as: Professor, Dr. Le Cam, Professor, Dr. Dao Tri Uc, Professor, Dr. Nguyen Ngoc Hoa, Dr. Tran Quang Tiep...

However, since the first codification of our country's criminal law (1985 Criminal Code) and the second (1999 Criminal Code) up to now, there has not been any specialized work that systematically, comprehensively and richly researches the principle of fault liability, so many issues related to fault have not been thoroughly resolved, and there has not been a complete assessment of the practical application of criminal law related to the principle of fault liability in order to make recommendations for improving criminal law in general and related to the principle of fault liability in particular.

Therefore, it is extremely necessary and important to conduct a complete, comprehensive and systematic study on the principle of liability due to fault in the Criminal Law from both the theoretical and practical perspectives of applying the Criminal Law in order to propose solutions to perfect the Criminal Law as well as improve the effectiveness of applying the Criminal Law related to fault in investigation, prosecution and trial.

3. Purpose and tasks of the Thesis research :

3.1. Purpose :

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The thesis research aims to achieve the following objectives:

- Building a system of knowledge on the principle of liability due to fault in Vietnamese Criminal Law.

- Affirming the historical value of the formation and development of the principle of liability due to fault of the Criminal Law.

- Solving the relationship between the principle of liability due to fault of Vietnamese Criminal Law in comparison with the principle of liability due to fault of Criminal Law of some countries in the world.

- Proposing solutions to improve the Criminal Code related to the issue of fault and the principle of responsibility due to the fault of the criminal law, contributing to improving the effectiveness of applying the Criminal Code in the fight against crime.

3.2. Research tasks of the Thesis:

To achieve the set objectives, the thesis focuses on solving the following main tasks:

Firstly , to study theoretical issues on criminal fault and the principle of fault liability in Vietnamese Criminal Law, answering the question of why it is necessary to study the principle of fault liability of LHS;

Second , to study the general history of our country's criminal legislation on the principle of fault liability; to study the relationship between the principle of fault liability and other principles of the Criminal Code;

Third , study the manifestation of the principle of fault liability in the current Penal Code, comparing it with the principle of fault liability in the criminal law of some countries in the world; clarify the shortcomings and limitations of the Penal Code related to the principle of fault liability;

Fourth , research on the practical application of the Criminal Code in investigation, prosecution, and trial from the perspective of meeting the requirements of the principle of responsibility due to fault;

Fifth , to provide complete viewpoints and propose solutions to complete the Penal Code as well as improve the effectiveness of applying the Penal Code, meeting the requirements set forth by the principle of responsibility due to fault.

4. Object and scope of the Thesis:

4.1. Research objects :

The thesis focuses on analyzing scientific arguments on the issue of fault, on the principle of fault liability of the Criminal Law, thereby clarifying the content and meaning of this principle in the Criminal Code, the expression of that content in the provisions of the current Criminal Code. The thesis focuses on studying the provisions on criminal fault, on the principle of fault liability of the Criminal Code from the history of formation to the provisions of the current Criminal Code, comparing with the principle of fault liability of the Criminal Law of some countries in the world. Studying the limitations of the current Criminal Code related to criminal fault and making recommendations to improve the Criminal Code to ensure the principle of fault liability.

4.2. Scope of the Thesis :

The principle of liability due to fault of the LHS has a relatively wide scope and level of impact. However, from the purpose and tasks of the research, the thesis focuses on studying general theoretical issues about fault in the Vietnamese LHS, on the principle of liability due to fault in the Vietnamese Criminal Law, studying the manifestation of the principle of liability due to fault in the current Vietnamese Penal Code, studying the application of the principle of liability due to fault in the practice of criminal trials, studying the shortcomings and limitations of the Penal Code related to fault and the principle of liability due to fault of the LHS in order to find solutions to improve the Penal Code.

5. Theoretical basis and research methods :

5.1. Theoretical basis :

To achieve the purpose and tasks of the research, as a research topic on criminal legal science, the research of the topic is based on the methodology of dialectical materialism and historical materialism of Marxism-Leninism, Ho Chi Minh's thought on the State and the rule of law; the viewpoints, guidelines and policies of our Party and State on the State and law, on criminal policy and judicial reform, on the fight against and prevention of crime in the current period. That is the basic basis to help the Thesis clarify theoretical issues on criminal fault, on the concept, content and meaning of the principle of fault liability of the Vietnamese Criminal Law, the unique characteristics and inherited values of the content of the principle of fault liability in the provisions of the 1999 Penal Code. Thereby, the Thesis will clarify the content and meaning of this principle in the provisions of the Penal Code as well as the need to perfect the Criminal Law related to the principle of fault liability.

5.2. Research method :

The thesis uses many research methods, the research and approach to the research issues are based on methods such as:

systematic method, analysis, synthesis, history, comparison, statistics, practical survey and expert consultation... In the combination of many different research methods in the Thesis, the method of legal norm analysis plays a leading role.

6. Theoretical and practical significance of the Thesis :

In terms of theory : This is a scientific work, systematically and comprehensively researching the principle of liability due to fault of the Criminal Law from many perspectives; determining the scientific, theoretical and practical basis for perfecting the principle of liability due to fault of the Criminal Law, thereby contributing to perfecting the criminal policy of our State in the fight against crime.

In terms of practice : The research results and recommendations of the Thesis have important significance for law enforcement activities in investigation, prosecution and trial of criminal cases; contribute to the dissemination and education of criminal law; are useful reference materials for students, postgraduates, lawyers and those interested in researching the field of Criminal Justice.

7. New points of the Thesis:

Firstly , this is the first monograph at the doctoral thesis level in Vietnamese Criminal Law science since the first codification of the Criminal Law (1985), which comprehensively, fully and systematically studies the principle of liability due to fault of the Criminal Law.

Second , to build a system of theoretical issues related to fault and the principle of responsibility due to fault of LHS, such as: The concept of criminal fault, the concept of a person with criminal fault, the concept of the principle of unintentional fault in LHS and the concept of the principle of responsibility due to fault in Criminal Law, the requirements and the expression of the principle of responsibility due to fault in Criminal Law...

Third , analyze the expression of the principle of responsibility due to fault in the General Part as well as the Crimes Part of the Penal Code; clarify the inadequacies and limitations of the Penal Code related to the issue of fault;

Fourth , evaluate the practical activities of investigation, prosecution, and trial in applying the provisions of the Criminal Code related to the principle of liability due to fault; point out difficulties and problems to find solutions;

Fifth , based on the study of theoretical issues, legal analysis and assessment of practical application of the Criminal Code, the author proposes a system of solutions to improve the Criminal Code and enhance the effectiveness of applying the Criminal Code related to the principle of liability due to fault.

8. Thesis layout :

To achieve the purpose, tasks, research objects and scope of research, the Thesis is structured into 3 chapters. Specifically:

Chapter 1: General issues on the principle of liability due to fault of Vietnamese Criminal Law.

Chapter 2 : The manifestation of the principle of liability due to fault in the 1999 Vietnamese Penal Code.

Chapter 3 : Trial practice and the completion of the 1999 Vietnamese Penal Code to ensure the principle of liability due to fault of the Criminal Law.

Chapter 1

GENERAL ISSUES OF PRINCIPLE

LIABILITY FOR ERRORS OF VIETNAMESE CRIMINAL LAW

1.1. Some theoretical issues on criminal errors.

1.1.1. The nature and concept of criminal fault .

1.1.1.1. The nature of criminal offenses .

In the composition of a crime, fault is a mandatory sign and belongs to the subjective aspect of the crime, so fault is the basis for prosecuting criminal liability. If a socially dangerous act is committed, causing damage or threatening to cause significant damage to society protected by the Criminal Law but there is no fault, it is not considered a crime.

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What is a mistake ? When is a socially dangerous act considered to be a crime ?

Can a person commit, has caused damage or threatens to cause significant damage to social relations protected by the Criminal Law be considered at fault ?, and why is the person considered at fault when committing such a socially dangerous act subject to criminal liability? Answering these questions is also clarifying the nature of fault in the Criminal Law.

When researching to come up with a general concept of criminal offenses , in the world

There are many different schools of thought and ethical viewpoints :

“ Beling (a German scholar) considered fault as the subjective aspect of the behavior, not an element of the crime, because he believed that the crime was only an objective characteristic of the behavior prescribed in the law, so it could not include the subjective aspect. According to him, fault is the psychological attitude of the subject towards the crime; fault is not a sign of the crime but an independent sign of the crime, from which Beling believed that fault is a necessary condition of criminal liability ” [48, p.33].

According to G.Ê sec, Professor, Doctor, Director of the Center for International Criminal Law of the Federal Republic of Germany, representing the democratic school in science

Bourgeois criminal law states that, “ fault is not the blame of the formation of the will but the error of the will aimed at performing an illegal act. The psychological aspect of fault is the content of the psychological attitude of the subject towards the act in the form of intention or negligence ” [48, p.33].

“Ph.Novakovski - a representative of the subjective theory of crime, believes that fault is the core of crime and punishment is not based on the performance of an act corresponding to the crime but on the basis of the subject's inner tendency towards the object protected by the Criminal Law. Explaining the nature of fault, he believes that fault is an element in the subject's psychological activity. Fault is the basis for blaming the offender's behavior because the offender has not carefully considered specific situations, has not paid the necessary attention to not perform an illegal act corresponding to a crime. The offender has performed an act that he is not allowed to do or has not performed something that he must do. Ph.Novakovski concludes: fault is a bad habit of forming will, showing that the subject does not have the right attitude towards the values protected by the Criminal Law. The subject has reacted to the requirements of the law in a way that is not in accordance with the requirements of the law, and has not chosen the necessary behavior according to the requirements of the law" [48, p.34].

Jurists who follow the objective theory of crime consider fault as a sign of crime, a manifestation of the subjective side of crime. T. Riler (Austrian), a representative of this theory, believes that "fault is the psychological attitude of the subject towards illegal behavior, so fault is the subjective side of illegal behavior".

According to T.Riler, errors are characterized by the following three signs [48, p.34]:

a/ Biological signs : The condition for being at fault is that the subject of the illegal act belongs to the group of people who, according to the provisions of law, can be prosecuted for criminal responsibility, that is, must be of a certain age and must be psychologically perfect. In other words, the condition for being at fault is having criminal responsibility.

b/ Psychological signs of the fault : The content of the fault is the internal psychological attitude of the subject, the subject - the person with criminal liability capacity must be conscious when performing the act, the subject is aware of the illegality of his/her act, then it is called intentional fault; when the act is the result of carelessness, then it is called unintentional fault.

c/ Normative signs of error : T.Riler believes that determining the psychological attitude of the subject towards the behavior in the form of intention or unintentional is not enough to conclude whether the person is at fault or not. To determine the error, it is necessary to evaluate the psychological attitude of the subject from the perspective of whether the behavior performed by that person is legal or not, on that basis, it is possible to conclude the blame for the formation of will.

According to the theological concept of fault, in German Criminal Law science since the 70s of the 17th century, the person who committed a premeditated crime must be responsible for his crime (Pufendorf). According to the famous Italian jurist Tr. Beccaria, the criminal law viewpoint related to a certain extent to the methodological basis of fault is: The issue of criminal responsibility and punishment cannot be linked to the concept of moral fault and the only and true measure of crime cannot be damage. Punishment should be applied only when there is absolute necessity, not responsibility for fault [9, pp. 419, 420].

According to the idealist-subjective philosophical viewpoint of the German philosopher Kant I, freedom of will is that in all the actions of the subject, it is the law; criminal accusation is a form of moral responsibility, the basis of which is to consider the subject as the free cause of an action performed [9, pp.419, 420].

According to Hegel's objective idealism: The presence of reason and will is the general condition of accusation; the error lies in the assertion that the subject is a thinking person who has perceived and desired...[9, pp.419, 420].

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