Theoretical and practical issues on exemption from criminal liability under Vietnamese criminal law - 1

In the current stage of building a rule-of-law state and judicial reform in Vietnam, in order to effectively fight against crime, along with classifying crimes, diversifying the system of penalties and judicial measures, specifying the bases for deciding on penalties or sanctions for specific crimes in the Crimes Section, our country's criminal law also simultaneously differentiates different criminal cases and criminal subjects to have appropriate, quick, accurate and fair handling methods. In particular, the differentiation of criminal cases and criminals is also reflected in the fact that not all criminal cases or all criminals are prosecuted for criminal liability. That is, when all the conditions prescribed by criminal law are met, a person who has committed an act dangerous to society that the legislator considers a crime may not be held criminally responsible, may be held partially criminally responsible or may also be exempted from criminal liability.

As one of the important institutions of Vietnam's criminal law, exemption from criminal liability reflects the policy of differentiating criminal liability and the humanitarian principle of our State towards criminals, while at the same time motivating and encouraging criminals to make meritorious deeds to atone for their crimes, demonstrate their ability to educate and reform, quickly reintegrate into the community and become useful people for society. Exemption from criminal liability also has an organic and close relationship with the criminal liability regime, because properly resolving the issue of criminal liability, while correctly and accurately applying the criminal liability exemption regime, will create a favorable legal basis for law enforcement agencies and the Court in the work of preventing and combating crime, protecting the interests of the State, society, and the legitimate rights and interests of citizens.

However, in Vietnamese criminal law science, the institution of exemption from criminal liability has not yet been paid attention to, studied in a profound, complete, systematic and comprehensive manner. For example, from a scientific perspective , a series of issues need to be clarified to have a unified and complete viewpoint such as the concept, legal nature and specific consequences of exemption from criminal liability, the development history of the norms on this institution, comparative research on criminal laws of countries with provisions on exemption from criminal liability or summarizing and evaluating the practical application of the institution of exemption from criminal liability, solutions to improve the effectiveness of application... In addition, in positive criminal law (1999 Penal Code), our country's lawmakers have not yet recognized the legal concept of exemption from criminal liability, the legal consequences of exemption from criminal liability; Or cases of exemption from criminal liability are still stipulated scatteredly in the articles and chapters of the General Part and the Part of Crimes of the Penal Code, so such a provision is clearly not scientifically accurate and has not achieved the legislative level. On the other hand, the practical application of this provision has also raised many problems that require criminal law science to study and resolve, such as the basis for applying exemption from criminal liability, criteria for assessing the nature and level of danger to society of criminal acts, criteria for distinguishing cases of reduced criminal liability from cases of exemption from criminal liability, cases of exemption from criminal liability due to the intervention of party agencies and local authorities; etc.

Therefore, continuing to study more deeply the theoretical issues of criminal liability exemption and their manifestation in the provisions of the current 1999 Penal Code, at the same time evaluating the application of the criminal liability exemption regime in practice to provide legislative interpretations as theoretical models and solutions to improve the effectiveness of applying the norms on this regime in the current period not only has important theoretical - practical and legal significance, but is also an urgent issue. This is also the reason

This is the argument for our decision to choose the topic " Theoretical and practical issues on exemption from criminal liability under Vietnamese criminal law " as our doctoral thesis in law.

2. Research situation

As the institution that most clearly reflects the policy of differentiation of criminal responsibility and the humanitarian principle of criminal law, exemption from criminal responsibility has a close and intimate relationship with the institution of criminal responsibility and a number of other institutions in criminal law, so the study of this institution at different levels has been of interest to a number of domestic and foreign scientists and jurists.

First of all, in the former Soviet Union, there was the work " Theoretical problems of criminal liability exemption " (Science Publishing House, Moscow, 1974) by Professor Kêlina XG; " Chapter 16 - Criminal liability exemption " by Xaveliova BX (in the book: Criminal Law of the Russian Federation - General part , Moscow Jurist Publishing House, 2001); " Criminal liability exemption and execution of punishment " (University Publishing House, Kiev, 1987) by Xkibitxki... In addition, the work: " Criminal liability exemption " in the collection " Legal research " by author Kevin (2003); or section 7 " Criminal liability exemption - General issues " (in the book: Swedish law in the new era , collective author edited by Michael Bogdan, Elanders Gotab Publishing House, Stockholm, 2000) by author Suzanne Wennberg; Article: " Criminal exemption in relation to Constitutional Law and Constitutional institutions " (Journal of Law, No. 7 (85)/2006) by authors Agnê Barans Kaitê & Jonas Prapiestis; etc. Accordingly, these works mainly focus on clarifying the content, conditions and analyzing specific cases of criminal exemption in positive criminal law, or only pointing out the relationship of criminal exemption in relation to Constitutional Law or to the execution of punishment; etc.

In Vietnam, up to now there have been a number of research works on this issue, notably the following works by Dr.Sc.Assoc.Prof.Le Van Cam :

Provisions on exemption from criminal liability in Vietnamese criminal law (in the book: Vietnamese State and Law on the threshold of the 21st century , People's Police Publishing House, Hanoi, 2002); On the forms of exemption from criminal liability stipulated in Article 25 of the 1999 Penal Code (People's Court Magazine, No. 1/2001); On six other forms of exemption from criminal liability (besides Article 25) in the 1999 Penal Code (Democracy and Law Magazine, No. 2/2001); On the legal nature of the concepts: Exemption from criminal liability, criminal prosecution, not having to bear criminal liability and exclusion of criminal liability (Procuracy Magazine, No. 1/2002); Section III - Provisions on exemption from criminal liability. Chapter 8 - Exemption measures in criminal law (in the Postgraduate Monograph: Basic issues in criminal law science (General part) , National University Publishing House, Hanoi, 2005); etc. In these works, initially analyze and systematize cases of exemption from criminal liability in the current 1999 Penal Code according to the content of legal basis and conditions of application, and at the same time provide a theoretical model of legislative interpretation of the norms of this institution in Vietnamese criminal law.

In addition, the criminal liability exemption regime is also mentioned at different levels in the journals of a number of other authors such as: Criminal liability exemption regime in Vietnamese criminal law (Science Journal, No. 4/1997) by Dr. Nguyen Ngoc Chi; Criminal liability and criminal liability exemption (Journal of Law, No. 5/1997) by Associate Professor, Dr. Le Thi Son; On the criminal liability exemption regime in the 1999 Penal Code (Democracy and Law Journal, No. 12/2001) by Associate Professor, Dr. Pham Hong Hai; Some opinions on criminal liability exemption (People's Court Journal, No. 2/1993) by Dr. Pham Manh Hung; etc. Or it is also mentioned in a number of monographs and textbooks such as: Article 48 - Criminal liability exemption, exemption from punishment . In the book: Theoretical model of the Vietnamese Criminal Code (General part) , edited by Prof. Dr. Dao Tri Uc, Social Sciences Publishing House, Hanoi, 1993; Chapter XVIII - Exemption from criminal liability, in the book: Vietnamese Criminal Law Textbook

(General part). Collective author edited by Prof. Dr. Vo Khanh Vinh, People's Police Publishing House, Hanoi, 2001; Chapter I - Criminal responsibility, in the book: Criminal responsibility and punishment , collective author edited by Prof. Dr. Nguyen Ngoc Hoa, People's Police Publishing House, Hanoi, 2001; etc.

However, a general overview of all the above studies by the authors shows that these works have only stopped at articles published in specialized legal science journals with the resolution of a corresponding content or considered this institution as a part of basic knowledge, a section in teaching textbooks, a chapter of a monograph or from the perspective of completing a degree, only considering the issue at the level of a master's thesis in law (by the author himself), and there has not been any work mentioning the research with the right name " Theoretical and practical issues on exemption from criminal liability under Vietnamese criminal law " in a systematic, comprehensive, synchronous and monograph manner at the level of a doctoral thesis in law. In terms of content, the above works have only mentioned the general legal basis and conditions of application, evaluated at the level of each specific case of exemption from criminal liability or have only made some independent recommendations on perfecting these corresponding cases in Vietnamese criminal law. Meanwhile, there has been no research work that systematizes theoretical issues on criminal liability exemption, comprehensively studies the history of formation and development of norms on criminal liability exemption in Vietnamese criminal law from the feudal period to the present, summarizes and evaluates practical application, as well as points out the existing problems and difficulties in practice to propose legislative interpretations and solutions to improve the effectiveness of their application. On the other hand, many contents surrounding the criminal liability exemption regime also require criminologists to continue to research more comprehensively and deeply, so it is clear that this issue is still topical .

3. Purpose, tasks, objects, scope and research time of the thesis

3.1. Research purpose

The purpose of the thesis is to systematically and comprehensively clarify in theory the basic contents of the criminal liability exemption regime under Vietnamese criminal law and the application of this regime in practice , thereby identifying shortcomings to propose legislative solutions by providing a theoretical model of the norms on the criminal liability exemption regime in our country's criminal law, as well as providing solutions to improve the effectiveness of applying the aforementioned regime in the investigation, prosecution and trial stages.

3.2. Research tasks

From the above research purpose, the author of the thesis sets himself the following tasks of researching the institution of exemption from criminal liability in Vietnamese criminal law from theoretical and practical perspectives:

In theory : Based on the study of the development history of the criminal liability exemption regime in Vietnamese criminal law from the feudal period to the present, analyzing the concept, basic characteristics of criminal liability exemption, the relationship between criminal liability and criminal liability exemption to recommend that the only competent court should apply these two regimes; classifying cases of criminal liability exemption, analyzing the content and conditions of application of cases of criminal liability exemption in the current 1999 Penal Code to clarify the legal nature and basic contents of the criminal liability exemption regime under Vietnamese criminal law.

In practice : Research and evaluate the application of criminal law regulations on the exemption from criminal liability in the practice of applying criminal law in our country, at the same time analyze the existing problems surrounding the provisions on exemption from criminal liability and the practical application in order to propose and demonstrate the necessity to improve and provide solutions to improve the effectiveness of applying regulations on this institution in Vietnamese criminal law.