The regime of exemption from criminal liability in Vietnamese criminal law

15 defendants in drug cases, 71 defendants in economic cases and; in 2003, the number of defendants whose investigation was suspended due to exemption from criminal liability for social security cases was 150 defendants, while there were 0 defendants in national security cases, 81 defendants in drug cases, 71 defendants in economic cases, and only 1 defendant in crimes related to positions and judicial activities.

Second , during the trial phase, the number of defendants to whom the Court applied exemption from criminal liability out of the total number of defendants brought to trial can be seen to account for a very small proportion. For example, from the fourth quarter of 2000 to the first nine months of 2001, the total number of defendants brought to trial by the Court of First Instance was 58,757, of whom 60 defendants were exempted from criminal liability (accounting for 0.1%). From the fourth quarter of 2001 to the first nine months of 2002, the total number of defendants brought to trial by the Court of First Instance was 63,251, of whom 52 defendants were exempted from criminal liability (accounting for 0.08%). From the fourth quarter of 2002 to the first 9 months of 2003, the total number of defendants brought to trial by the Court of First Instance was 73,311, of which 47 defendants were exempted from criminal liability (accounting for 0.06%)... At the appeal or review stage, the Courts at all levels still apply exemption from criminal liability for defendants if there is a basis. For example, from the fourth quarter of 2000 to the first 9 months of 2001, the total number of defendants brought to trial by the Court of First Instance was 19,102, of which 17 defendants were exempted from criminal liability. From the fourth quarter of 2001 to the first 9 months of 2002, this ratio was 17,529 and 4...

In addition, examining 10 types of serious crimes in the 1999 Penal Code from the fourth quarter of 2000 to the first 9 months of 2002 shows that among these 10 types of crimes, the total number of defendants exempted from criminal liability out of the total number of defendants brought to trial accounts for a very small proportion. For example, from the fourth quarter of 2000 to the first 9 months of 2001, among 446 defendants brought to trial for embezzlement, only 01 defendant was exempted from criminal liability (accounting for 0.22%), the crime of making and trading in counterfeit goods had a ratio of 76 and 1 (accounting for 1.32%), the crime of drug-related crimes had a ratio of 9,744 and 6 (accounting for 0.06%)... As for some types of crimes among these 10 crimes, from the fourth quarter of 2000 to the first 9 months of 2002, it showed that no defendant was exempted by the Court.

Criminal liability includes crimes such as: Bribery, child rape, prostitution brokerage, prostitution sheltering and forgery in work...

Third , the application of the provisions of criminal law and criminal procedure law on exemption from criminal liability shows that the investigation, prosecution and trial agencies have made great efforts in implementing these provisions to apply them correctly and accurately in terms of basis, authority and procedure. Specifically, when making decisions on exemption from criminal liability, the agencies conducting the proceedings have considered the nature and extent of the applicable law to ensure the quality of cases exempted from criminal liability in accordance with the law, limiting the number of wrongful convictions and violations of the law, thereby actively contributing to the fight against and prevention of crime. The good implementation of the provisions of the law on exemption from criminal liability is, first of all, due to the close coordination between the agencies conducting the proceedings on the basis of the functions and authorities prescribed by the criminal law and criminal procedure. In addition, it is also due to the direction of the superior sector leaders in the settlement of cases in general and the implementation of regulations on exemption from criminal liability in particular. In particular, competent officials when considering the decision to exempt criminal liability for criminals all base on the conditions prescribed by law.

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Fourth , the classification of cases of investigation suspension, case suspension and defendants due to exemption from criminal liability needs to be made in a detailed and clear table by the Investigation Agency and the Procuracy. Currently, most of these agencies have only reported and listed the figures of investigation suspension, case suspension regarding exemption from criminal liability according to Article 19, Article 25 and Clause 2, Article 69 of the 1999 Penal Code, how many, with what type of case, but have not yet counted the specific number of exemptions from liability for each corresponding case (because in addition to these cases of criminal liability exemption, in the 1999 Penal Code there are many other cases of criminal liability exemption that have not been detailed and fully counted, or even in Article 25 there are up to three cases of criminal liability exemption). Doing this well will not only contribute to limiting suspended cases and defendants,

Not only does the investigation and suspension of the case due to the exemption from criminal liability being incorrect and illegal, but it also creates favorable conditions for the Procuracy to closely inspect the basis for application of each case of exemption from criminal liability, as well as promptly correct violations, thereby determining the responsibility of each officer. However, through research on the practical application of the exemption from criminal liability regime, it shows that there are still some of the following problems.

Firstly , regarding the case of exemption from criminal liability " due to a change in the situation where the offender is no longer dangerous to society ", due to incorrect perception, the prosecuting agency applied it incorrectly. In some places, the efforts of the offender himself or his consciousness were considered as a change in the situation where the offender is no longer dangerous to society (the basis for exemption from criminal liability) and decided to suspend the investigation of the accused, leading to illegal suspension of the accused.

For example: Seeing two young men robbing a student, N. standing nearby jumped in to share and stripped the ring from the victim's hand. The People's Procuracy of Dak Lak province prosecuted the two young men for robbery under the provisions of Clause 2, Article 133 of the 1999 Penal Code. However, regarding defendant N, the Procuracy held that the defendant " participated in a secondary role, temporarily committed the crime, committed the crime for the first time, had a good character, had compensated for the damage, the victim dropped the complaint, and his family had contributed to the revolution " and also held that " after stripping the victim's ring, he gave it to someone else to keep, without the intention of appropriating it to the end " and decided to suspend the defendant based on Article 25 of the 1999 Penal Code to exempt N from criminal liability. The exemption from criminal liability in this case is incorrect. Because N's actions have sufficient elements to constitute the crime of robbery, and at the same time, it cannot be said that " after taking off the victim's ring and giving it to someone else to keep, there was no intention of appropriating it to the end ". On the other hand, Article 25 of the Penal Code only applies exemption from criminal liability in cases where, due to a change in the situation, the criminal act or the offender is no longer dangerous to society, not

" Considering the change in consciousness of the offender " as cited by the Procuracy [47, p. 9].

Second , in practice, the prosecuting agency has not properly applied the conditions for exemption from criminal liability to cases of exemption from criminal liability prescribed in Clause 2, Article 25 of the 1999 Penal Code.

For example: The Investment and Construction Project Management Board of Chau Thanh district, Kien Giang province, due to irresponsibility, allowed the construction unit to cheat on the volume and make false settlements of nearly 800 million VND. On September 3, 2003, the Security Investigation Agency issued Decision No. 02 to initiate an investigation into the case of embezzlement of assets and lack of responsibility causing serious consequences. However, after a period of investigation, on December 24, 2003, the Head of the Security Investigation Agency signed a decision to suspend the investigation of the case based on Clause 2, Article 25 of the 1999 Penal Code with the reason that " The offender has clearly stated the incident and tried to remedy the consequences that have occurred ". However, here, the Chau Thanh District Project Management Board has repeatedly committed violations in the process of performing its duties without showing any sense of responsibility for the poor quality works, and until the inspection team intervened with professional measures, actively fought to detect violations, and transferred the case to the Investigation Agency. The original text of the law is: "In the case where before the crime was discovered, the offender confessed, clearly stated the incident, effectively contributed to the detection and investigation of the crime , and tried to minimize the consequences of the crime, he/she can also be exempted from criminal liability". From the above issues, it can be seen that the investigation security agency's basis on Clause 2, Article 25 of the 1999 Penal Code to suspend the investigation due to exemption from criminal liability is not in accordance with the criminal behavior of the subject, and does not fully meet the conditions for this case of exemption from criminal liability [26, p. 6].

Third , the assessment of the nature and level of danger to the offender is not complete and accurate. There are people who clearly commit crimes, commit crimes with aggravating circumstances that determine the penalty, or commit serious crimes with high penalties, or the offender has a criminal record, commits crimes many times, has accomplices, recidivates, has been administratively handled... should have been prosecuted for criminal liability but was suspended and exempted from criminal liability, leading to the situation of criminals and offenders being missed.

Example 1: The case of Tran Dai Thang committing the crime of disturbing public order, should have been prosecuted according to Clause 2, but the People's Procuracy of Hue City issued a decision to suspend the case and exempt the defendant Tran Dai Thang from criminal liability; the case of Nguyen Van Lanh in Thanh Hoa committing the crime of openly appropriating property, the value of the appropriated property was 14,130,000 VND, the case involved 8 people, should have been prosecuted before the law, but the District Procuracy decided to suspend and exempt all the defendants from criminal liability [83, p. 7].

Example 2: The Tran Van Con case, the Dang Huu Phuong case and the Vu Ngoc Thao case show that although the defendants committed serious crimes with high penalties (over 7 years and over 10 years in prison), the People's Procuracy of Kim Son and Gia Vien districts and the Economic Crime Investigation Procuracy of Ninh Binh province still suspended the case due to exemption from criminal liability leading to incorrect application of criminal law and had to resume investigation, prosecution and trial [80, p. 10].

Example 3: Le Ngoc Dong, Dinh Van Tuyen, Pham Van Tam and a number of other subjects organized gambling at Khanh Ninh gas station, Yen Khanh and were caught red-handed by the police, 70,000 VND was confiscated, and 389,000 VND was seized during a body search. Le Ngoc Dong and Pham Van Tam had a criminal record for gambling and had all been administratively punished by the police. After concluding the investigation, the police proposed prosecution, but the People's Procuracy of Yen Khanh district decided to suspend the investigation and exempt criminal liability on the grounds that "the level of killing was too high".

The organization of gambling by Dong, Tuyen, and Tam right at the gas station, two out of three defendants have just been administratively handled for gambling, now reoffending, so it must be handled criminally to ensure the strictness of the law, for general education and prevention [80, p. 7].

Fourthly, due to poor awareness of criminal law and criminal procedure law, some cases mistakenly apply the case of reducing criminal liability with the case of exemption from criminal liability. In cases where the victim has a request to withdraw the complaint, the prosecution agencies have issued a decision to suspend the case for the accused, and the accused is exempted from criminal liability, which is incorrect.

Example 1: Bui Thi Hong tricked Mr. Tiem (Hong's cousin) into selling his car to get money to go to the South. The Investigation Agency recovered the car, and the family and the victim asked for Hong's criminal liability to be exempted to preserve family happiness. The People's Procuracy of Ninh Binh province suspended the case and exempted Bui Thi Hong from criminal liability. The handling was determined to be illegal and not thorough, because the suspension of the case did not have any provisions according to the regulations on exemption from criminal liability [80, pp. 7-8].

Example 2: The Ninh Binh Province Economic Investigation Procuracy decided to suspend the case and suspend the defendant Vu Ngoc Thao on the grounds that the defendant had compensated for the damage, so the case was suspended. The suspension on the above grounds is incorrect. The defendant's compensation for the damage is only a mitigating circumstance of criminal liability, not a condition for exemption from criminal liability [80, p. 8].

Example 3: Nguyen Van Thuc was suspended from the case by the Tam Diep Town People's Procuracy on the grounds that the victim had filed a complaint and the two parties had reconciled due to compensation for damages; or Nguyen Huu Thuong was suspended from the case by the Hoa Lu District People's Procuracy on the grounds that relying on the victim's fault was incorrect without distinguishing between mitigating circumstances and conditions for exemption from criminal liability [80, p. 8].

Fifth , although in positive criminal law (1999 Penal Code), our country's lawmakers have not officially recognized the case of expiration of the statute of limitations for criminal prosecution as a form of exemption from criminal liability, but in practice, some places still acknowledge and consider this as one of the cases of exemption from criminal liability (exemption from prosecution, exemption from criminal prosecution) or there are cases of exemption from criminal liability for the offender who is elderly, has many mitigating circumstances for criminal liability, family has contributed to the revolution...

Example 1: The People's Procuracy of Thai Nguyen province has issued a decision to suspend the defendant Vu Ngoc Quyet for the crime of abusing trust to appropriate socialist property due to the expiration of the statute of limitations for criminal prosecution [81, p. 1].

Example 2: In the Nam Cam case, defendant Nguyen Minh Tuan, an investigator of the Ho Chi Minh City Police Department, committed the crime of falsifying case files and was exempted from (prosecuted) criminal liability for this crime due to the expiration of the statute of limitations for criminal prosecution [90, p. 1].

Example 3: On November 6, 2003, District 8 Police of Ho Chi Minh City issued a decision to suspend the investigation of the property destruction case and suspend the investigation of the accused due to exemption from criminal liability for Tran Thi Thuan (65 years old). The Investigation Agency determined that "due to Ms. Thuan's old age, her family's contributions to the revolution, and the case occurring a long time ago, she should be exempted from criminal liability" [93, p. 1].

Sixth , in some cases, the prosecuting agencies have mixed up Article 25 of the 1999 Penal Code, which regulates exemption from criminal liability (Article 48 of the former 1985 Penal Code), and Article 107 of the 2003 Criminal Procedure Code, which regulates grounds for not initiating criminal proceedings (Article 89 of the 1988 Criminal Procedure Code).

Example 1: The People's Procuracy of Ninh Binh province suspended the criminal case against 4 defendants due to lack of basis, which is not correct, but should have suspended the case and exempted Trinh Manh Sinh and Dinh Quang Vinh from criminal liability [80, pp. 9-10].

Example 2: On the contrary, there are also 3 defendants whose decision to exempt from criminal liability is incorrect and should have been suspended due to lack of basis for criminal prosecution, namely Nguyen Tien Dung, Dao Sy Men and Vu Duc Doai; or defendant Dau Quang Khanh whose suspension due to exemption from criminal liability is also incorrect and should have been suspended based on the basis of not being able to initiate a criminal case - not being of age to bear criminal responsibility is correct and appropriate... [80, p. 10].

Seventh , there are also some cases where prosecutors who supervise the prosecution of criminal cases do not have a firm grasp of the grounds for not prosecuting criminal cases as prescribed in the Criminal Procedure Code, but still initiate criminal cases, prosecute the accused, and then suspend the case to exempt the accused from criminal liability, which is forced and rigid.

Example 1: Tran Nguyen Than (Nghe An) was prosecuted for intentionally causing injury, suspended from criminal liability because the consequences for the victim were 3% of his health.

Example 2: Dong Van Truong (Yen Bai) was exempted from criminal liability for intentionally destroying property because he shot and killed a dog.

Example 3: The case of Hoang Van Tuan (Thai Binh) was exempted from criminal liability for stealing 3 chickens... [83, pp. 4-5].

Thus, the cause of the above problems, in our opinion, may stem from a number of subjective and objective reasons below.

Firstly , although the regulations on the exemption from criminal liability in the 1999 Penal Code are more complete and comprehensive than those in the 1985 Penal Code, practical application and enforcement show that the regulations on this institution still need to be further improved and need explanatory documents and unified guidance from competent State agencies.

Second , due to the level of awareness of the provisions of criminal law and criminal procedure law of judicial officials and officials in agencies.