The Role and Purpose of Criminal Justice Measures

Criminal measures (Article 70 of the 1999 Penal Code) can be applied by other competent criminal justice agencies such as the Investigation Agency, the Procuracy or the Court... to criminals in general (including convicted persons); as for alternative judicial measures to punishment (Article 70 of the 1999 Penal Code), they can only be applied by the Court to convicted persons in particular.

The application of criminal justice measures to offenders is determined in a very broad scope. Unlike punishment, which can only be applied after being convicted, a person who commits an act dangerous to society can be subject to criminal justice measures right from the investigation stage when there are signs of a crime; but in reality, to decide whether or not to apply criminal justice measures, to deal with violated property, or to compensate, make a public apology, or force medical treatment, only the Court has the authority. Before that, these measures were only applied temporarily and could be changed after the Trial Council issued a final verdict.

Fourth characteristic : Judicial measures are only intended to limit, not deprive, the rights and freedoms of the offender; or to support or replace punishment.

In cases where judicial measures are required, although they are coercive, they only limit the rights of the convicted person to some extent and do not aim to deprive the offender of his or her rights and freedom. This is most clearly demonstrated in the provisions of each criminal judicial measure.

For example, with the judicial measure "Education at the commune, ward or town", although the person subject to the measure has limited rights (not allowed to leave the place of residence without permission from the competent authority), he or she does not completely lose his or her freedom. They still have the right to move around, participate in movements and activities of organizations and society at the place of residence; even doing business and living is not much different from normal people.

Or compulsory medical treatment for people with a disease that limits their perception or behavior control, making their crime not intentional; but the disease causes them to act against the law. Therefore, compulsory medical treatment, although one of the judicial measures, is more of a help to sick criminals than a punishment; the person subject to this measure can still live like other non-criminal patients, and still has the basic rights and obligations of a citizen. Whether to apply punishment or other criminal judicial measures after completing the treatment will be considered by the Trial Council depending on the specific situation.

Fifth characteristic : Like other criminal coercive measures, judicial measures are also stipulated in criminal law and must be applied by competent criminal justice agencies according to a special procedure prescribed by criminal procedure law. Not every State agency is allowed to apply criminal justice measures; although some criminal justice measures appear to be similar to administrative and civil coercive measures (confiscation of money and objects directly related to crimes and confiscation to the state budget; or fines), in essence they are completely different; therefore, only criminal justice agencies have the right to consider and apply them. In particular, the handling of convicted persons as well as the application of penalties and criminal justice measures must be determined by the Court on the basis of applying criminal law; and other procedural agencies must also comply with the correct procedures and formalities prescribed by criminal procedure law and criminal judgment enforcement law.

Sixth characteristic : Judicial measures are only personal in nature because according to Vietnamese criminal law, they are only applied to the offender or the convicted person.

Sanctions against offenders may only be applied when a crime has been committed, and only against that person; their relatives are not obliged to be held responsible for those actions before the law.

criminal law. The family or guardian (in the case of a minor) has only financial obligations to the offender.

The judicial measures applicable to the criminal organization have not yet been determined. The application of these criminal judicial measures can only be applied to individual offenders, and they are jointly and severally liable for financial responsibility.

1.1.2. The role and purpose of criminal justice measures

Criminal justice measures are essentially coercive measures of the State applied by competent criminal proceedings agencies (Procuracy and Court) to criminals and those who commit socially dangerous acts in a state of lack of criminal responsibility due to mental illness or another disease that has deprived them of the ability to perceive or control their behavior.

With a diverse system of penalties and criminal justice measures, with different severity and uses, the more accurately the criminal handling is, the more carefully the details, criminal acts, and the personal background of the offender and the victim are considered before deciding on the penalty, and therefore, the effectiveness of applying judicial measures will be somewhat enhanced.

It can be said that the existence of a system of judicial measures in parallel with the system of penalties (main and supplementary) makes the system of sanctions more balanced, complete and effective, meeting the requirements of fighting and preventing crime in accordance with the development trend of the country as well as international integration.

In addition, criminal justice measures applied to convicted persons will strengthen, support and enhance the effectiveness of the application of penalties; making it easier for convicted persons to reintegrate into the community, avoiding the risk of recidivism and dangerous recidivism, and contributing to a smoother and more effective judicial operation.

On the other hand, in cases that are not serious enough to warrant the application of the penal system, criminal justice measures are the solution to resolve the crime situation, not leaving out criminals, and there are still sanctions applied to them, but they are commensurate in both content and severity to the crime they have committed.

Thus, it can be seen that criminal justice measures have contributed to enriching the criminal sanctions system, promoting the protection, prevention and education functions of criminal law, creating a legal basis for effectively fighting and preventing crime. Therefore, the role of criminal justice measures in criminal law in particular and in law in general is extremely important and necessary.

Up to now, when studying theoretical issues of criminal responsibility, punishment and judicial measures; there are many viewpoints and debates about the purpose of punishment but there has been no specific research on Judicial measures. However, because judicial measures are also a measure of criminal coercion to implement the criminal responsibility of criminals, there are similarities with punishment. Going into the analysis of the purpose of judicial measures, it can be seen in the following aspects:

In terms of form, judicial measures indicate the purpose that the State wishes to achieve through application to criminals. Thus, it can be understood that the purpose of judicial measures is the final result that the State wishes to achieve by applying judicial measures prescribed by the legislator in criminal law in accordance with the prescribed order and procedures 5 to limit new crimes, promote reintegration into the community; demonstrate the humanity in the law as well as the policies of the Party and State.

In terms of content , the core of the final result that the State wishes to achieve by applying judicial measures to criminals.

It can be seen that the application of judicial measures independently or together with the decision on punishment, aims to: Prevent crime; educate and reform; prevent, punish, educate and reform.

However, if we consider the profound nature of applying criminal justice measures, we can see that the main purpose of applying criminal justice measures is: Contributing to restoring justice; reforming and educating criminals; contributing to warning and educating other members of society to have the awareness to respect, comply with and strictly comply with the law - general prevention; supporting the fight against crime.

The State's provision for competent criminal proceedings agencies to apply criminal judicial measures (other than penalties) against the above-mentioned persons aims to support the achievement of general and specific prevention goals.

As a measure of criminal coercion, criminal justice measures are a way of affecting the offender. In some cases, criminal justice measures are the consequences of committing a crime; therefore, in some cases, in addition to being punished, the offender must also be subject to judicial measures (accompanied by punishment or applied independently). In these cases, the application of criminal justice measures has the effect of reforming the offender, general prevention and specific prevention.

In addition to applying punishment, applying judicial measures also helps to handle crimes and criminals more thoroughly and comprehensively. The Penal Code stipulates general and specific judicial measures, helping competent criminal justice agencies to apply them flexibly, flexibly and correctly according to the criminal policy, criminal procedure policy and crime prevention policy of our State. In addition, the application of criminal justice measures also reflects the application of punishment - the most severe coercive measure of the State as prescribed by the criminal law.

Determination is not the only means in the fight against, prevention and combating of crime. To improve the effectiveness of the fight against, prevention and combating of crime; requires the State and society to apply synchronously, systematically and comprehensively different measures with appropriate and flexible levels of coercion to prevent and repel crime.

1.2. DISTINGUISHING CRIMINAL JUDICIAL MEASURES FROM PENALTIES AND ADMINISTRATIVE ENFORCEMENT MEASURES

1.2.1. Distinguishing criminal justice measures from punishment

* Similarities

- First point , both punishment and criminal justice measures are two important institutions of Vietnamese criminal law and only appear when there is a certain basis prescribed by criminal law: The crime committed by a natural person (a specific person, having the capacity for criminal responsibility, having reached the age of criminal responsibility and being at fault in committing a socially dangerous act, prohibited by criminal law). Only when there is a crime and criminal responsibility is determined can punishment or specific corresponding criminal justice measures be applied to carry out criminal responsibility for the offender in general and the convicted person in particular.

- Second, penalties and criminal justice measures are both criminal coercive measures of the State, and at the same time are forms and means of implementing criminal responsibility, applied by competent prosecution agencies according to a special order and procedure prescribed in criminal procedure law. These provisions are prescribed in criminal law and the method of implementation is prescribed in criminal procedure; these legal provisions are guaranteed to be implemented by the coercive power of the State, in accordance with legal procedures and ensuring effective implementation and achieving the set goals.

- Third , the application of penalties and criminal justice measures both lead to certain adverse legal consequences for criminals at different levels, depending on the social danger of the crime, the personality of the criminal, the personality of the victim, and the specific circumstances of the corresponding criminal case.

- Fourthly , according to Vietnamese criminal law, both punishment and criminal justice measures are only personal in nature and are only applied to natural persons who commit crimes. The offender or the convicted person must execute the punishment or apply criminal justice measures commensurate with the crime, while relatives are not criminally responsible for the mistake that person has made, but can only be jointly liable or assisted in the responsibility to compensate for damages caused by the person at fault.

* Difference:

Table 2.1: Differences between criminal justice and penal measures

Criteria

Criminal justice measures

Penalty

Scientific concept

Is a criminal coercive measure of the State prescribed by criminal law and applied by competent criminal justice agencies based on the specific corresponding stage of criminal proceedings to a criminal to restrict the rights and freedoms of that person or to support or replace punishment.

Punishment is the most severe coercive measure of the State decided in the Court's legally effective judgment to deprive the convicted person of his or her rights and freedoms according to the provisions of law.

Vietnam criminal

About the severity

Criminal justice measures are just one part of a system of criminal coercive measures applied to offenders.

crime, deterrent, punitive but

Punishment is the most severe coercive measure of the State.

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not as severe as punishment. The application of criminal measures is sometimes only preventive or deterrent in nature, rather than punitive to the offender.

(eg: Compulsory medical treatment)

On the subject of authority to apply and the subject of application

The application of criminal justice measures is the competence of the Court trying the case, and the criminal justice agencies corresponding to the stage of criminal proceedings apply to support the punishment (applying Articles 41, 42, 43 of the 1999 Penal Code to all offenders in general and Article 70 of the 1999 Penal Code to

juvenile offenders).

Only the Court trying a criminal case is the sole prosecuting agency with the authority to impose punishment on the convicted person based on the verdict of conviction.

On legal consequences

When applying criminal justice measures, the person subject to them, if only criminal justice measures are applied separately (applied independently without accompanying punishment), is not considered to have a criminal record; in addition, that person is only restricted, not completely deprived of his or her rights and freedom. The person subject to the measures still has the right to live and work in the community, which is also a form of rehabilitation.

integrate into the community

The application of punishment to a criminal will result in a criminal record for the convicted person and the punishment must be applied; in addition to having their rights and freedoms restricted, the person subject to the punishment may also have those rights and freedoms deprived.

Source: Author's own synthesis from Criminal Law Textbook; 1999 Penal Code (amended and supplemented in 2009) and some other reference documents.

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