Monogamy and the crime of torturing and mistreating grandparents, parents, spouses, children, grandchildren, and people who have raised you account for the highest percentage (the number of cases of violating the monogamy regime accounts for 44.97%, the number of cases of torturing and mistreating grandparents, parents, spouses, children, grandchildren, and people who have raised you account for 46.87%).
Second , the number of incest cases is very small.
- On the results of trials of cases of crimes against marriage and family regime:
From 2010 to June 2015, the Courts nationwide tried 689 defendants for violating the marriage and family regime. Of these, 361 defendants were sentenced to fixed-term imprisonment, accounting for 30.1%; 277 defendants were sentenced to imprisonment but given suspended sentences, accounting for 42%; 32 defendants were sentenced to non-custodial reform, accounting for 3.1%; 19 defendants were given warnings, accounting for 1.2%. There were no cases of exemption from criminal liability or exemption from punishment.
The results of the first-instance trials of cases on crimes against the marriage and family regime are shown in Table 2.9.
Table 2.6. Trial results of cases of violations of family regime
Year
Total Number of defendants tried | Punishment imposed on the defendants | ||||
Warning | Renovation no detention | Sentenced to prison but given suspended sentence | Prison has duration | ||
2010 | 116 | 4 | 5 | 59 | 71 |
2011 | 212 | 1 | 6 | 55 | 68 |
2012 | 184 | 2 | 5 | 48 | 55 |
2013 | 83 | 1 | 3 | 52 | 65 |
2014 | 46 | 1 | 3 | 54 | 60 |
6/2015 | 44 | 0 | 1 | 28 | 41 |
Total | 689 | 9 | 23 | 277 | 361 |
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Practice of Ensuring Human Rights of Accused Persons at the Stages of Indictment, Investigation, Prosecution, and Trial of Criminal Cases -
Procedures for Trial of Cases Involving Minor Defendants -
Procedure for Applying Law in Criminal Investigation Cases -
Ensuring human rights for people arrested during the investigation phase of criminal cases - 13 -
Criminal appeal trial from Dong Nai province practice - 10
Source: Supreme People's Court.
From the above statistics, the following observations can be drawn:
First , non-deprivation of liberty penalties are rarely applied to defendants convicted of crimes against the family regime.
Second , the fixed-term imprisonment penalty is very commonly applied to this type of crime. This is an issue that needs to be reconsidered, because crimes against the family regime are often less serious crimes and if the penalty is applied without deprivation of liberty, it will be more effective, because it will have a better effect on maintaining and strengthening the relationship of the offender's marriage and family.
2.3. Some shortcomings and limitations in the trial of crimes against family regime and their causes
2.3.1. Limitations in legal regulations on crimes against family regime
Administrative handling of violations of the marriage and family regime and criminal handling of crimes against the marriage and family regime have an organic and close relationship with each other. Correct and strict administrative handling of violations of the marriage and family law will create conditions to prevent those who have committed the above administrative violations from continuing to violate and possibly becoming criminals of marriage and family regime. On the other hand, correct and strict criminal handling of crimes against the marriage and family regime will have a deterrent, educational, and preventive effect, significantly reducing the number of administrative sanctions for violations of the marriage and family regime.
The practice of fighting against violations of the law on marriage and family and crimes against the marriage and family regime in our country in recent times has shown that administrative and criminal handling of the above-mentioned acts is still in a state of lack of strictness and thoroughness, has missed many crimes and criminals, as well as missed and not strictly handled many administrative violations.
The situation of crimes violating the marriage and family regime has caused serious damage to the rights, legitimate interests, property, and health of the people, negatively affecting the traditions and ethical standards of our nation, and is becoming increasingly painful, becoming a matter of deep concern to the whole society, with many causes and conditions, including causes and conditions from the law enforcement agencies themselves.
First of all, the awareness of many officials of law enforcement agencies and relevant agencies has not fully grasped the guidelines and policies of the Party and the State on combating violations of the marriage and family regime and crimes against the marriage and family regime, and has not fully understood the significance and importance of this struggle for the implementation of the cause of industrialization and modernization of the country. Therefore, the legal awareness of some officials of law enforcement agencies and agencies in the fight against violations of the marriage and family regime and crimes against the marriage and family regime is still low, there is still arbitrariness, many crimes are overlooked; cases of crimes against the marriage and family regime are widely administrativeized. In the fight against this type of crime, the quality of investigation is still low, many cases are still prolonged, and handling is not timely and strict.
In fact, this type of crime occurs a lot, but criminal handling is still limited due to lax management by authorities. Violations of the HM&F regime are carried out openly or semi-openly without any intervention from law enforcement agencies. This situation has existed for quite a long time and created a mentality of contempt and disregard for the law .
Prevention of crimes against marriage and family by agencies
Law enforcement agencies have not yet had specific and specialized assignments and tasks, so their performance is not very effective; there are few summaries and studies on the implementation of preventive measures by topic; the grassroots level pays little attention, allowing
Therefore, it has not been possible to draw out the rules and characteristics of the activities of those who commit crimes against the HM&F regime in each locality and region; the work of advising the Party Committee and the government to take preventive measures in some localities is still limited. In the police force, there are no specific regulations on the coordination between forces working to fight against crimes against the HM&F regime, leading to some overlapping preventive measures of the local police and forces in many localities; the Court and the Procuracy also do not have a department to conduct in-depth research on this issue. And even in training conferences and experience sharing in trial, this content has not received due attention. These are issues that need to be promptly resolved to improve the effectiveness of the fight against this type of crime in the coming time in our country.
In addition, the shortcomings in legal regulations greatly affect the quality of handling crimes related to the family regime in our country today.
First, regarding the crime of incest, there are currently two schools of thought regarding the nature of sexual intercourse in the crime of incest.
The first viewpoint holds that the objective act of the crime of incest is consensual sexual intercourse between people having sexual intercourse. Specifically, there must be consensual sexual intercourse between people of the same bloodline; between siblings with the same parents, the same father but different mothers or the same mother but different fathers. However, the current problem is that the act of consensual sexual intercourse between people with blood relations and the act of consensual sexual intercourse in the crime of sexual intercourse with children have many similarities. This causes difficulties in the sentencing process when handling these two cases if the person having sexual intercourse has a subject under 16 years old and consensual sexual intercourse.
The second view is that sexual intercourse in the crime of incest should not necessarily be consensual. Because the legislator clearly stipulates this crime in the law and there is no document providing such guidance. However, if so, it will cause difficulties in distinguishing incest from rape and sexual assault in which the offender and the victim are related by blood. This is a major problem in determining the crime of incest in practice. Specific guidance from competent authorities is needed to make it easier to determine the crime.
Regarding the crime of violating the regulations on monogamy, there are also certain shortcomings. Typically, the objective aspect may be problematic in determining the crime and determining the penalty for this crime. According to Clause 1, Article 147, the objective aspect of the crime of violating the monogamy regime is analyzed as follows:
A person who is married but marries or lives as husband and wife with another person
Having a wife or husband is understood as a person who is married (has a marriage registration or a de facto marriage recognized by law [1] ) and has not terminated the marriage relationship by a legally effective decision of the Court (recognizing a consensual divorce, granting a divorce or annulling a marriage due to violation of the marriage conditions prescribed by law) or one party is dead, missing and has been declared missing by the Court, etc.
A person who is not married but marries or lives as husband and wife with a person whom he or she clearly knows is married.
A bachelor is a person who has never been married or has been married but the marriage has ended. Only when a bachelor knows that the person he or she is living with is married can it be considered an objective act of this crime.
Cohabitation is when a married person lives with another person or an unmarried person lives with someone they know is married, openly or secretly, but lives together as a family. Cohabitation is often proven by having children together, being considered husband and wife by neighbors and the surrounding society, having common property, having been educated by family, agency, organization, but still continuing to maintain that relationship.... If one only secretly has sex in the so-called "adultery", it is not considered cohabitation.
Objectively, a crime is considered completed when the offender commits one of the above acts causing serious consequences or has been administratively sanctioned for this act but still violates. Serious consequences may be that from that violation the legal wife or husband has to quit his job, spend money to mend the relationship, get depressed and get sick, commit suicide, commit crimes, have children who are abandoned, go "off the road", etc.
Thus, objectively, to satisfy the basic crime of violating the monogamy regime, the two necessary and sufficient signs must be:
(1) Act of living together as husband and wife; (2) Being administratively sanctioned, or causing serious consequences.
Applying the above analysis to solve an example case below, we will see the problem that arises. The case is as follows: Do Quoc Quy married Nguyen Thu Dau and had two daughters together. Quy declared to Dau that he would marry someone else to have a son to continue the family line. Through matchmaking, Quy met Pham Thi Minh Ha, from the neighboring commune. The two fell in love.
Despite his wife and children's dissuasion and public opposition, Quy still moved to Ha's house to live with her as husband and wife. A year later, the couple had a son.
During their time together, Ha relied on her youth and the fact that she had given birth to a son for her husband. She was lazy and often cursed Ms. Dau and her children. Too upset, Ms. Dau asked for help from the Women's Union. With the help of the Women's Union, Ms. Dau sued her husband's actions in court. The court decided to annul this illegal marriage.
Quy was angry and often beat and scolded Chi Dau, many times not giving her food, locking her in a room for many days, seriously affecting her health. Once, Quy even took off Chi Dau's clothes and chased her out into the street during the day, despite the girls' cries and pleas. In addition, Quy, despite the Court's decision to annul the illegal marriage, continued to live with Ha as before in Chi Dau's house.
In the above case, the actions of Quy and Ha satisfied the necessary signs of the objective side of the crime of violating the monogamy regime. That is, Quy had a wife but lived with Ha as husband and wife. Ha did not have a husband, knew Quy had a wife but lived with Quy as husband and wife. This is expressed through the actions: "the two loved each other", "Quy still went to Ha's house to live with Ha as husband and wife", "had a son together". However, the sufficient condition of the objective side constituting this crime was not satisfied, which is the sign of "causing serious consequences" or "having been administratively punished for this act". Quy's "taking off Ms. Dau's clothes and chasing her out into the street in broad daylight" or "the children cried and begged" cannot be considered serious consequences but can only be considered acts of wife abuse.
However, the behavior of Quy and Ha satisfies the sign of "there has been a decision of the Court to annul the marriage or to force the termination of cohabitation as husband and wife contrary to the monogamy regime but still maintain that relationship" stated in Clause 2, Article 147. Thus, can the behavior of Quy and Ha be considered as satisfying the elements of the crime stipulated in Clause 2, Article 147?
Analyzing the structure and content of Article 147 shows that the behavior of Quy and Ha does not satisfy Clause 2 of this Article. The structure and content of Article 147 are analyzed as follows: Clause 1 is the basic crime, Clause 2 is the aggravated crime. According to Clause 2 of Article 147: “Committing a crime in a case where there is a court decision to dissolve the marriage or force the termination of cohabitation as husband and wife contrary to the monogamous regime but still maintaining that relationship…”. The phrase “committing a crime” in this clause implies that the behavior must satisfy the objective signs of the basic crime, that is, the act of cohabitation as husband and wife must have caused serious consequences or been administratively sanctioned. However, the behavior of Quy and Ha does not satisfy the basic crime, so it cannot satisfy the aggravated crime. This fact has created a major inadequacy in criminal legislation techniques for the Crime of violating the monogamy regime, leading to the consequence of letting criminals escape. Because, Quy and Ha in this case were not considered to have committed the Crime of violating the monogamy regime even though their behavior was no less dangerous than the behavior described in the basic crime composition when "there was a decision of the Court to annul the marriage or force the termination of cohabitation as husband and wife contrary to the monogamy regime but still maintain that relationship".
2.3.2. Limitations in investigation, prosecution and trial of crimes against family regime
In recent years, the investigation, prosecution and trial of crimes against the family regime have achieved certain successes, the discovery and trial of violations of the family regime. However, besides the positive aspects, the limitations in the investigation, prosecution and trial of these crimes have also led to certain difficulties in the fight against these crimes.