However, in addition, there are still different and inconsistent views when applying legal regulations on crimes against road traffic safety to specific cases. Some judgments of the district-level People's Court or the Quang Ngai City People's Court still have errors and shortcomings in the process of collecting evidence, proving, determining the status of the participants in the proceedings, sentencing and civil compensation for the defendant.
Chapter 3
SOME SOLUTIONS TO IMPROVE REGULATIONS ON ROAD TRAFFIC SAFETY CRIMES
IN THE 1999 CRIMINAL CODE AND IMPROVING THE QUALITY OF TRIAL OF THESE CRIMES
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3.1. The need to perfect regulations on road traffic safety violations in the 1999 Penal Code and improve the quality of adjudication of these crimes
3.1.1. Perfecting the law to meet the requirements of socio-economic development
Currently, Vietnam's socialist-oriented market economy has made important developments, gradually integrating deeply into the world economy and the regional economy, and has brought about great benefits. Along with economic growth, macroeconomic stability is maintained, and political, social, defense and security aspects are ensured and stabilized. However, at the same time, many issues need to be resolved, including the fight against crime.
The Penal Code must demonstrate its role as an effective tool to protect and promote the development of the market economy. The current Penal Code is generally still a product bearing the imprint of the early period of the transition from a centralized, bureaucratic, subsidized economy to a socialist-oriented market economy, and therefore has not really played its role in protecting and promoting the positive factors of the healthy development of the market economy.
Since the 1999 Penal Code was promulgated, the situation of our country has undergone major changes in all aspects. The implementation of the Party and State's guidelines and policies on building a socialist-oriented market economy and building a socialist rule-of-law state, the basic content of which is:
is to recognize and ensure the implementation of human rights, basic rights of citizens; the strategy of perfecting the legal system, the strategy of judicial reform and proactive international integration of Vietnam has brought about great, positive changes in the country's socio-economic and foreign affairs. Although in 2009, the 12th National Assembly amended and supplemented a number of articles of the Penal Code, because the scope of the amendment was limited to a number of articles, it was not possible to fully and comprehensively overcome the shortcomings of the Penal Code in practice.
Currently, some provisions of the Penal Code are no longer suitable for the conditions of developing a market economy. Crimes in the field of traffic safety have not shown signs of abating. The situation of drivers driving vehicles exceeding the speed limit, while intoxicated by alcohol or drugs is happening very complicatedly and has caused particularly serious traffic accidents, affecting the lives of victims, families and the whole society.,... Besides, the crime situation in general is still very complicated with sophisticated and cunning methods and tricks. The number of crimes always tends to increase, becoming more serious in both scale and nature.
These limitations affect the development of the economy as well as the effectiveness of the fight against crime and require continued improvement of the Penal Code to contribute to protecting and further promoting the development of the socialist-oriented market economy.
3.1.2. Perfecting criminal law to institutionalize the leadership of the Party and State
The legal system in our country is the institutionalization of the Party's viewpoints and guidelines. The completion of the provisions of the Penal Code must be based on the Party's viewpoints and guidelines on completing the legal system. This ensures a consistent orientation of political viewpoints in the construction and completion of the legal system.
general law and perfecting regulations on crimes against road traffic safety.
Resolution 48-NQ-TW dated May 24, 2005 of the Politburo on the Strategy for building and perfecting the Vietnamese legal system until 2010, with a vision to 2020, stated:
In general, our country's legal system is still not uniform, inconsistent, has low feasibility, and is slow to come into practice. The mechanism for building and amending laws still has many unreasonable issues and has not been respected, innovated, or perfected. The progress of building laws and ordinances is still slow, and the quality of legal documents is not high....[21].
Resolution No. 08/NQ-TW dated January 2, 2002 of the Politburo “On a number of key tasks of judicial work in the coming time” and Resolution No. 49/NQ-TW dated June 2, 2005 of the Politburo “On judicial reform strategy to 2020”, stated:
Pay attention to perfecting criminal policies and criminal procedures, promoting preventive effectiveness and benevolence in handling criminals. Reduce prison sentences, expand the application of fines and non-custodial reform for some types of crimes. Limit the application of the death penalty to only a few types of particularly serious crimes. Reduce the maximum penalty that is too high for some types of crimes. Overcome the criminalization of economic relations, civil relations and the omission of criminals. Regulate as crimes the dangerous acts for society that have just appeared in the process of socio-economic development, science, technology and international integration [19].
Therefore, the activities of reviewing, amending, supplementing and perfecting the legal system on ensuring road traffic safety are extremely important.
Legal documents related to ensuring traffic safety such as: Legal documents ensuring road traffic safety and order, legal documents on administrative handling of violations of road traffic safety regulations; especially the Penal Code, as well as documents explaining, guiding, and applying the Laws regulating the crime of violating regulations on controlling road vehicles as well as documents related to the investigation and trial of this crime.
The current Penal Code has not yet fully and promptly updated common and highly dangerous violations to society in order to have appropriate criminal handling measures. These include violations of road traffic safety regulations. This has not met the requirements of fighting and preventing crime.
In particular, the promulgation of the 2013 Constitution has recognized and ensured the implementation of human rights and civil rights, requiring the continued innovation and improvement of the entire legal system, including criminal law as the most important and sharpest legal tool in ensuring and protecting human rights and fundamental rights of citizens. Accordingly, it is necessary to amend in the direction of promoting the effectiveness of prevention and the positive nature in handling criminals; creating favorable conditions for convicted persons to reintegrate into the community.
3.1.3. Perfecting the law to meet the needs of international integration
The current Penal Code was promulgated in 1999 in the context of our country not yet deeply integrated into the world, many international treaties we did not have the conditions to join, therefore, it did not reflect the characteristics and requirements of fighting and preventing crime in the conditions of international integration, and did not create a full legal basis, favorable for international cooperation in fighting and preventing crime.
Today, our country has participated in many international and regional organizations and has become a member of many multilateral international treaties and conventions.
convention on crime prevention. In addition, along with the process of international integration, our country is also facing the increase of transnational organized crimes and crimes committed by foreigners.
Therefore, it is necessary to continue amending and supplementing the Penal Code to internalize criminal provisions in international treaties to which our country is a member in order to fully implement the obligations of a member state and create a favorable legal basis for proactively and strengthening international cooperation in preventing and combating crime, especially transnational organized crime.
Building a Penal Code in line with the new development stage of the country after the 2013 Constitution; further promoting the role of the Penal Code as a sharp and effective legal tool in the fight against crime; contributing to protecting the country's sovereignty and security, protecting the regime, protecting human rights and civil rights, protecting and promoting the socialist market economy to develop in the right direction, ensuring social order and safety, creating a safe and healthy social and ecological environment for all people, while meeting the requirements of our country's international integration.
3.2. Some solutions to improve regulations on road traffic safety violations in the 1999 Penal Code
Currently, the viewpoint of the Party and State on building and supplementing the Penal Code is to innovate the perception of criminal policy, focusing on the innovation of the concept of crime and punishment, the basis of criminal liability, the policy of handling certain types of crime and types of criminal subjects, ensuring that the provisions of the Penal Code are not only legal tools for authorities to fight and suppress crime but also the legal basis to protect the healthy development of socio-economic relations; for all people to protect themselves, protect the interests of the State and society; encourage all people to proactively participate in the fight against crime.
Based on the difficulties and obstacles in applying legal regulations in the process of adjudicating cases related to crimes against road traffic safety. Perfecting criminal law will create a legal basis for prosecuting criminal liability of those who commit crimes in violation of regulations on driving vehicles participating in road traffic. Crimes against road traffic safety include Articles 202 - 207 of the Penal Code, issues raised for improvement in amending and supplementing the content of the 1999 Penal Code:
Firstly, with Article 202, it is proposed to amend and supplement according to the following opinions:
+ Amend the crime name of Article 202 as follows: "Crime of violating regulations on road traffic participation" , to cover all road vehicles including: road motor vehicles, rudimentary road vehicles and specialized motorbikes participating in road traffic.
Clause 1, Article 202 is amended to “1. Any person who participates in road traffic and violates........” .
+ Amend the content of Point a, Clause 2, Article 202 on the phrase "Without a license or driving license as prescribed" with "driving a vehicle in traffic without a license or driving license as prescribed".
+ More clearly stipulate Clause 1, Article 202 of the Penal Code on the case where the offender loses his/her license or driving license before committing the crime, then the offender should only be prosecuted and tried in the case where he/she still has a license or driving license but it is lost, so it should be applied as a violation according to the corresponding clause prescribed by the law.
+ Amend Point b, Clause 2, Article 202 of the Penal Code in the direction of specifying the alcohol concentration ratio in breath to ensure consistency between the Road Traffic Law and the Penal Code. According to Article 8 of the Road Traffic Law, drivers are prohibited from using stimulants: "It is prohibited to drive when there is a concentration of alcohol in the blood."
Alcohol content exceeding 50 milligrams/100 milliliters of blood or 0.25 milligrams/01 liter of breath or containing other stimulants prohibited by law" .
+ Add point b, clause 2, Article 202 of the Penal Code, the circumstance of "using drugs" . Because a person who has just used drugs and drives a vehicle is an especially dangerous act.
+ Amend and supplement the “circumstances of not complying with the orders of the person performing the task of controlling or directing traffic” stipulated in Point d, Clause 2, Article 202 in the direction of stipulating intentional and unintentional faults. If the offender intentionally fails to comply, he/she will be subject to criminal liability according to Point d, Clause 2, Article 202 of the Penal Code. If the offender unintentionally fails to comply, he/she will be subject to criminal liability according to Clause 1, Article 202 of the Penal Code.
+ Amend the fine in Clause 1, Article 202 to increase the fine amount. The current Clause 1, Article 202 stipulates "the fine shall be from five million to fifty million VND " so it should be amended to " the fine shall be from twenty million to one hundred million VND" . At the same time, add fines to Clauses 2, 3, and 4, Article 202 to suit practical life.
Second, add to Article 203 of the Penal Code the following acts of obstruction:
+ The act of “intentionally placing or spreading sharp objects on the road” . In reality, the act of spreading nails or sharp objects on the road is an especially serious violation that can harm the health, life and property of others. Therefore, those who “intentionally place or spread sharp objects on the road or have been administratively sanctioned for this act but still violate” must bear criminal responsibility.
+ The acts of "dumping materials, waste, garbage, dumping lubricants; or illegally using safety corridors..." . Because recently, the above acts have made society and people extremely indignant, but the Penal Code has not clearly defined the above acts as crimes.
+ Add a fine to Clause 2, Article 203 and increase the fine amount in Clauses 1 and 3 of this Article accordingly.