The Meaning of Protecting Human Rights by the Criminal Norms of Vietnamese Criminal Law

1.2.2. The significance of protecting human rights by criminal regulations of Vietnamese criminal law

Research on the protection of human rights by law in general, and by criminal law - including criminal norms in particular - has many extremely important meanings, in many aspects as follows:

- Meaning in political and social aspects

Society has gone through many different economic and social forms, many different types of states have been formed, corresponding to each type of state, many forms of law have also been born with the main purpose of being a tool to ensure the ruling class of society, represented by the state apparatus. However, the history of state and law from the past to the present, and the contemporary international trend have proven through practice that: Only in a state of law in the true sense can human rights be guaranteed, can they be placed in their proper position - as the most noble social value, that value is recognized in the law, protected by the law, including criminal law.

Criminal law, with many different norms, each norm contains the content of protecting human rights at different levels. As playing a central role in the criminal law, the norms on crime have clearly demonstrated and are a solid legal basis in protecting human rights. From there, the judicial agencies, exercising their powers corresponding to each stage of the proceedings, ensure the protection of human rights, bringing the principles of the rule of law into life.

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- Theoretical significance

Starting from the issue of crime, first of all, crime is an act that violates the law, defined as a crime by criminal law. However, in the concept of crime, as well as the norms related to crime, there are currently many different definitions in the world (including legal definitions and scientific definitions), and even in a country at different stages, the issue

There are also differences in whether a certain behavior is a crime or not (criminalization and decriminalization). From the issues of crime as well as the issues surrounding crime, there is always a direct and indirect connection, both a legal basis and a scientific basis to the issue of protecting human rights. Therefore, on the foundation of the achievements of the national legal system, and the progressive legal system of the contemporary world, the study of the issue of protecting human rights by criminal norms is always a task of great significance. In particular, while we are reforming the judiciary, studying criminal norms to clarify how the content of protecting human rights is expressed? As well as finding norms that are not yet reasonable, or are no longer suitable for current social relations that no longer meet (or have not met) the protection of human rights and constantly strengthening the protection of human rights. From there, provide legislative insights that contribute to the common goal of judicial reform and nation building. Therefore, conducting research on this topic is a legitimate task.

The Constitution and the law are supreme, therefore human rights, as well as the content of protecting human rights, must be recorded in the Constitution and the law, which means: protecting human rights by law - including criminal law, is expressed in the legislative aspect. However, until the second codification of the Penal Code in 1999, there were still some points that needed to be improved, as well as amended and supplemented, because certain limitations were revealed right from the time of construction, as well as points that are no longer dependent in the application process due to changes in other socio-economic factors, including the criminal regulations stipulated in the general part of the Penal Code of Vietnam.

- Practical significance

The practice of applying the Penal Code in general and the criminal regulations in particular has posed necessary requirements for improvement.

but first of all, to overcome the limitations in current regulations, including regulations on crimes related to the protection of human rights.

One of the characteristics of the rule of law state is the transparency of the law, because, to ensure the supremacy of the Constitution and the law, it is required and absolutely required to be transparent, supremacy and transparency are two different characteristics, but closely related to each other, both the driving force and the premise of each other. From the transparency of the law, state agencies in general, judicial agencies in particular, can perform their duties accurately, thereby creating the basis for protecting human rights. An obvious problem in human activities is that law enforcement activities are always associated with practice, these are two similar concepts but not identical to each other. After being promulgated, whether the law can be put into practice or not, and whether it is put into practice quickly or slowly, depends on many factors, including the conformity of the law to life or not? That is, is there conformity of the law to ongoing social relations or not? In addition, there is the operation and enforcement of the law by state agencies, including the judiciary.

Research on the practical aspects of criminal norms has great significance and is extremely important for the issue of protecting human rights.

1.2.3. Characteristics of protecting human rights by criminal regulations in Vietnamese criminal law

According to the Vietnamese Dictionary, "characteristics" means distinctive features. From that, it can be understood: The basic characteristics of protecting human rights by criminal regulations are the specific signs of the content and expression of protecting human rights by criminal regulations.

With the connotation of the above-mentioned concept, we can see that the protection of human rights by criminal norms of Vietnamese criminal law has the following characteristics:

- The first characteristic is that protecting human rights by criminal norms is a suitable mechanism to ensure human rights against the possibility of being threatened, or being accused of being a criminal, as well as the possibility of being forced to suffer the most severe legal consequences from the social repression apparatus - that is the State. This mechanism is operated by three branches of power: legislative, executive and judicial. As long as that mechanism is properly implemented in its role and function, human rights will be guaranteed, and no one can be wrongly convicted, or convicted objectively as is often seen in the law in some other types of states.

- The second characteristic is that protecting human rights through criminal norms is a task that is not only meaningful within the national scope, but also has international significance. Because, in the context of international integration, we must prepare and be ready for all conditions to be capable and adapt to the requirements of the context, including laws in the field of criminal justice on the principle that national laws are consistent with international laws, including criminal norms.

- The third feature, protecting human rights through criminal regulations contributes to the enforcement of criminal law - in the field of regulation, ensuring that human rights are implemented strictly and consistently.

- The fourth feature, protecting human rights by criminal regulations is an essential part of protecting human rights by criminal law. From there, it ensures that people are always assured of their precious rights, placing their trust in the public authority - where their human rights are easily violated, even trampled by a degenerate part of this authority.

- The final characteristic, protecting human rights by criminal regulations must be specifically recorded in the law, must ensure transparency, clarity, strictness, science and ensure logic.

1.3. OVERVIEW OF THE HISTORY OF FORMATION AND DEVELOPMENT OF THE IDEOLOGY OF PROTECTING HUMAN RIGHTS BY CRIME REGULATIONS IN VIETNAMESE CRIMINAL LAW AFTER THE AUGUST REVOLUTION IN 1945 UP TO PRESENT

1.3.1. The period from after the August Revolution in 1945 to

First codification - Vietnam Penal Code 1985

After the August Revolution in 1945, due to practical conditions, having just regained power, and many urgent tasks ahead, we had not yet built a Criminal Code. Therefore, by Decree dated October 10, 1945 of the President of the Democratic Republic of Vietnam, the newly established revolutionary government advocated continuing to apply the criminal law documents of the old regime to maintain social relations. For a long time after that, we also only issued a number of specialized criminal law documents, regulating a number of social relations that gave rise to crimes in a number of specific fields. Those documents were expressed in the form of: Decrees; Ordinances; Regulations... For example: Decree No. 47-SL dated October 10, 1945 temporarily kept the old laws, such as: "An Nam Penal Code"; "Hoang Viet Penal Code"; The Penal Code was amended "but must not be contrary to the principle of independence of Vietnam and the democratic republic" [3, p. 190]; Decree No. 133-SL dated January 20, 1953 recognized the application of similar laws in criminal law, which will punish crimes that violate independence and crimes that violate the domestic and foreign affairs of the State. In the historical context of our country in the period immediately after the victory in 1945, due to many different reasons, we have not yet issued legal documents in the criminal field to fully regulate social relations in the new period, especially the norms on crimes. However, in order to protect the revolutionary achievements that we have just won, it is necessary and appropriate for the young state to apply some similarities in the fight against and prevention of crimes.

By 1955, in order to ensure security and social order in the context of the country carrying out two revolutions at the same time (the National Democratic Revolution in the South and the Socialist Revolution in the North), the Government issued Circular No. 442/TTg dated January 19, 1955 on the punishment of a number of crimes, and for the first time recorded and applied precedents. Notably, during this period, the idea of protecting human rights expressed in criminal law progressed significantly, when only criminal acts were dealt with, not newly formed crimes. This was shown in the Supreme People's Court's Explanatory Report on the Ordinance on Punishment of Counter-Revolutionary Crimes dated October 30, 1967 at the 1967 Year-end Conference of the Supreme People's Court.

In addition, there are a number of other documents, such as the Ordinance on Punishment of Crimes of Encroachment on Private Property of Citizens dated October 21, 1970, Decree No. 03/SL of the Provisional Revolutionary Government of South Vietnam dated March 15, 1976; Joint Circular No. 03/LN dated December 25, 1982 of the Supreme People's Court, the Supreme People's Procuracy; the Ministry of the Interior; the Ministry of Justice regulating the crime of fleeing abroad and the crime of being allowed to go abroad and then staying abroad...

These documents stipulate which acts are considered counter-revolutionary crimes, or which acts are crimes against property; which acts are acts of fleeing abroad or crimes of being allowed to go abroad and then staying abroad.

It can be affirmed that in the period after the August Revolution of 1945 until before the promulgation of the 1985 Penal Code, the Vietnamese state issued many different criminal law documents, basically meeting the urgent and necessary demands of society, although those documents had different advantages and disadvantages.

To meet the requirements in the fight against, prevention and control of crime in the new period, on June 27, 1985, the 7th National Assembly of the Socialist Republic of Vietnam passed the Penal Code (called the 1985 Penal Code). This

is a great and outstanding achievement of our state and people, of great significance in both political and social aspects as well as legislative aspects, and is the first Penal Code of the Vietnamese revolutionary government. From here, the Penal Code is the sole and direct source of our country's criminal law.

With great progress, the contents of protecting human rights by criminal regulations have been clearly demonstrated. For example, "only those who commit a crime prescribed by criminal law shall bear criminal responsibility" (Article 2 of the 1985 Penal Code); and the regulations stipulated in Article 8 (Crime); Article 9 (Intentional crime); Article 10 (Unintentional crime); Article 15 (Preparation to commit a crime, attempted crime); Article 16 (Voluntarily stopping the crime halfway); Article 17 (Complicity), are the regulations on crime and regulations related to crime that have basically demonstrated the spirit of protecting human rights. They are effective tools, contributing significantly to maintaining social order during the period of national reconstruction. However, being born in the context of us having just ended the war, reunified and built the country towards socialism, there were many different reasons, so the 1985 Penal Code after being born and entering life, had some shortcomings that needed to be overcome.

1.3.2. The period from the promulgation of the 1985 Vietnamese Penal Code to present

Faced with the situation that the 1985 Penal Code could no longer meet the general development of society, our state and people have summarized, researched, and overcome those shortcomings. Therefore, through the second codification, the 1999 Penal Code was passed by the 10th National Assembly of the Socialist Republic of Vietnam, 6th session, on December 21, 1999, effective from July 1, 2000. On June 19, 2009, at the 5th session of the 12th National Assembly, Law No. 37/2009/QH12 amending and supplementing a number of articles of the 1999 Penal Code, effective from January 1, 2000. The provisions on crimes and a number of provisions related to crimes are prescribed

Articles: Article 8 (Legal definition of crime); Fault regime (Article 9 and Article 10); Regime on stages of committing crime (Articles 17 - 19); Regime on complicity (Articles 20 - 22); and Exclusion of criminal liability for the act of failing to report a crime when blood relatives or close relatives commit it against each other when committing certain types of crimes (not all), not only meet the demands of society in general but also clearly demonstrate, as well as demonstrate, the enormous progress in the content of protecting human rights by criminal regulations.

1.3.3. Basic features of protecting human rights by criminal regulations in criminal law of some countries in the world

One of the achievements of progressive criminal law in the world today is the expression of the content of protecting human rights, including the expression in the norms of crime. Although the expression is at different levels in the criminal law of countries in the world. But, humanity also generally acknowledges that it is both a great achievement and an inevitable trend, of common era.

Study the basic features of the content of protecting human rights by criminal regulations in the criminal law of some countries to have comparisons and contrasts to find out the manifestations of that content compared to Vietnam, from there have more basis as well as meaningful to make recommendations in perfecting the criminal regulations in the criminal law of Vietnam in the direction of strengthening the protection of human rights.

- Basic features of the content of protecting human rights by criminal norms in the criminal law of the Russian Federation: The Criminal Code of the Russian Federation was adopted by the State Duma of Russia on May 24, 1996, effective from January 1, 1997, and was amended and supplemented in 2010 and later. Accordingly:

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