In the Socialist Republic of Vietnam, the relevant state agencies are responsible for themselves or recommend to competent state agencies to promptly amend, supplement, cancel or promulgate legal documents in accordance with the provisions of the Law on Promulgation of Legal Documents" [52, p. 23]. And according to international practice, the countries participating in the Geneva Conventions of August 12, 1949 all stipulate as military crimes acts that violate the prohibitions of the above Conventions (such as the Russian Federation and the People's Republic of China, which we have mentioned in Chapter II of the Thesis). The provision of criminal responsibility for acts of massacre, appropriation or destruction of property in war zones not only demonstrates the legal responsibility of our State in participating in the above international Conventions but also has the meaning of deterrence and crime prevention. Therefore, we propose to criminalize acts of massacre, appropriation or destruction of property in war zones. Accordingly, the crime of massacre, appropriation or destruction of property in war zones is an act of violating the life, health, appropriation or destruction of property of people in areas of military activities. The name of the crime and the basic elements of this crime can be as follows:
“ Article... Crime of massacre, appropriation or destruction of property of people in war zones
1. Anyone who intentionally injures, kills, appropriates or destroys the property of civilians in a war zone, causing serious consequences, shall be punished…”
3.2.3. Completing the criminal composition of crimes that violate the duties and responsibilities of military personnel
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3.2.3.1. Completing the criminal composition of crimes violating command and submission relationships
The crimes that violate the command and obedience relationship that need to be improved are the crimes of disobeying orders and the crimes of not strictly following orders. Because the names and contents described in Articles 316 and 317 of the Penal Code do not fully describe the subjects of the crimes of disobeying orders and the crimes of not strictly following orders, and the forms of expression of orders are orders, decisions, and instructions of the commander or competent superior. The consequence of the above shortcomings is that crimes are left unpunished because in practice there are cases where responsibility for the act of not implementing the "decision" or "instruction" of the superior is not prosecuted, causing serious consequences. On the other hand, Clause 1, Article 316 of the Penal Code does not describe the objective behavior of the crime of disobeying orders as the act of publicly refusing to follow orders or intentionally not following orders of the direct commander or competent superior, leading to inconsistent perceptions of this crime. We propose:
- The crime of disobeying orders needs to be improved in the direction of: adding the objects of the crime as "decisions, instructions of the commander or competent superior;" and describing the objective behavior of this crime as "publicly refusing to comply with or intentionally not implementing the decisions, instructions or orders of the commander or competent superior." Accordingly, the name of the crime needs to be amended as "Crime of disobeying orders, decisions or instructions of the direct commander or competent superior" and the content of Clause 1, Article 316 of the Penal Code needs to be amended and supplemented as follows:
“Article…. Crime of disobeying orders, decisions or instructions of direct commanders or competent superiors
1. Anyone who publicly refuses to comply with or intentionally fails to carry out an order, decision or directive of the direct commander or of a competent superior shall be punished...”
- The crime of not strictly obeying orders also needs to be improved by adding the subject of the crime as "decisions and instructions of the commander or competent superior." The name of the crime that needs to be amended is " Crime of not strictly obeying orders, decisions or instructions of the direct commander or competent superior ." The content of Clause 1, Article 317 of the Penal Code needs to be amended and supplemented as follows:
“Article… Crime of not strictly implementing orders, decisions or instructions of direct commanders or competent superiors
1. Anyone who negligently, lately, or arbitrarily executes orders , decisions, or instructions of the direct commander or of a competent superior, causing serious consequences, shall be punished...”
3.2.3.2. Completing the criminal composition of crimes that violate internal solidarity relations in the military
In essence, humiliation is an act of violating human dignity; assault is an act of violating life and health. In the Chapter "Crimes of violating the duties and responsibilities of military personnel" of our country's Penal Code, the above acts are defined as three independent crimes, but they are all crimes that are objectively identical and only differ in the objects of the crime (commanders, superiors; subordinates and comrades). Meanwhile, in the Chapter "Crimes of violating human life, health, honor and dignity", the above acts are defined into three groups of crimes: murder, intentional injury or damage to the health of others, and humiliation of others with different sanctions depending on the objects affected, such as life, health or honor.
dignity of the victim. Therefore, it would be reasonable to separate the acts of assault (of a commander, superior, subordinate or comrade), humiliation (of a commander, superior, subordinate or comrade) into independent crimes as provided for in the Criminal Code of the Russian Federation [35, pp. 145-147]. For that reason, we propose to replace the crimes of humiliation, assault of a commander or superior, the crime of humiliation or torture of a subordinate and the crime of humiliation, assault of a comrade by two independent crimes: the crime of humiliation of a comrade and the crime of assault of a comrade. In which:
+ The crime of humiliating teammates is an act of seriously insulting the dignity and honor of the commander, superior, subordinate or teammate. Thus, the subject of this crime is the commander, superior, subordinate or teammate. Considering the nature and level of danger of the act: the act of humiliating teammates is less serious than the act of humiliating the commander or superior because the subject of the act is the commander or superior; the act of humiliating teammates is also less serious than the act of humiliating subordinates because the person who commits this act is the commander or superior. Therefore, it is possible to stipulate that "the act of seriously insulting the dignity and honor of teammates" is a sign of conviction; and committing a crime against the commander, superior or subordinate is a sign of determining the penalty. The law regulating this crime can be:
“The...Crime of humiliating teammates
1. Anyone who, in a working relationship, seriously insults the dignity and honor of a teammate will be punished...
2. Committing a crime in one of the following cases shall be punished...:
a) For direct commanders, superiors or subordinates...”
+ The crime of assaulting a teammate is an act of violating the health of a teammate. In which, the act of violating the health of a teammate (of the same level,
The criminal policy for each of the above cases is also different and has been shown in Clause 2 of Articles 319, 320 and 321 of the Penal Code. Although Clause 2 of the above articles stipulates three circumstances for determining the penalty as committing a crime with serious, very serious or especially serious consequences, the sanctions prescribed (type and level of penalty) for each crime are different. This difference is necessary in terms of the handling approach when individualizing criminal responsibility. To overcome the shortcomings of defining the three independent crimes mentioned above while still ensuring the necessary difference in the handling approach when individualizing criminal responsibility for each subject, we propose: replace the phrase "using torture against subordinates" with the phrase "assaulting subordinates" in Article 320 of the Penal Code; and combine the crimes of assaulting commanders or superiors, the crime of using corporal punishment on subordinates and the crime of assaulting teammates as prescribed in Articles 319, 320 and 321 of the Penal Code into one article with a new crime "Crime of assaulting teammates"; and stipulate that "intentional acts causing injury or harm to the health of teammates not to the extent of constituting the crime of intentional infliction of injury" is a sign of determining the crime; and committing a crime against a commander, superior or subordinate is a sign of determining the penalty. The article regulating this crime can be:
“Article ... Crime of assaulting teammates
1. Anyone who, in a work relationship, intentionally causes injury or harm to the health of a teammate with a disability rate of less than 11% shall be punished...
2. Committing a crime in one of the following cases shall be punished...:
a) Committing a crime against a commander, superior or subordinate…”
3.2.3.3. Perfecting the criminal composition of crimes against combat discipline
Crimes that violate combat discipline that need to complete the signs of constituting a crime are the crime of abandoning combat position, the crime of violating policies towards wounded and dead soldiers in combat, and the crime of mistreating prisoners of war and deserters. In which:
- Regarding the crime of abandoning a combat position, Article 324 of the current Penal Code only stipulates criminal liability for the act of abandoning a combat position but does not stipulate criminal liability for the act of failing to perform a combat duty. Because: abandoning a combat position is the act of voluntarily leaving the assigned position without permission or not being present at the assigned position without a valid reason; not performing a combat duty is the act of a person on combat duty who is still present at the combat position but does not perform the assigned task.
Thus, the provisions of Article 324 of the Penal Code are not precise about the crime and do not describe the objective behavior of the crime. To overcome these shortcomings, we propose to complete the crime of abandoning combat position in the following direction: naming the crime as " Crime of abandoning combat position or not performing combat duties "; and stipulating "the act of voluntarily leaving or not being present at combat position illegally or not performing combat duties" as a sign of conviction. The law regulating this crime can be:
“Article... Crime of abandoning combat position or failing to perform duties in combat
1. Anyone who leaves his combat position without permission or is absent from his assigned combat position without justifiable reason or fails to perform his combat duties shall be punished...."
- The crime of violating policies towards war invalids and martyrs in combat is regulated in Article 336 of the Penal Code, including two groups of socially dangerous acts with different objects and subjects. It is unreasonable to regulate two groups of socially dangerous acts with different objects and subjects in the same article with the same crime name. This unreasonableness also leads to the consequence of being inconsistent with the provisions in Article 47 of the Penal Code on deciding on lighter penalties (as mentioned in Subsection
2.2.3 of the Thesis). To overcome the limitations and shortcomings in Article 336 of the Penal Code, we propose to separate the crime of violating policies towards war invalids and martyrs in combat into two crimes: the crime of intentionally abandoning war invalids and martyrs on the battlefield or failing to care for and treat war invalids; and the crime of appropriating or destroying the remains of war invalids or the property of war invalids. In which:
+ The crime of intentionally abandoning wounded or dead soldiers on the battlefield or failing to care for or treat wounded soldiers is the act of intentionally abandoning wounded or dead soldiers on the battlefield or failing to care for or treat wounded soldiers by those responsible for transferring or organizing the transportation of wounded or dead soldiers out of the battlefield or caring for or treating wounded soldiers. The name of the crime and the basic elements of this crime may be as follows:
“Article... Crime of intentionally abandoning wounded or dead soldiers or failing to care for or treat wounded soldiers
1. Anyone who is responsible but intentionally leaves wounded or dead soldiers on the battlefield or fails to care for or treat wounded soldiers, causing serious consequences, shall be punished...."
+ The crime of appropriating or destroying the relics of martyrs or the property of wounded soldiers is the act of appropriating or destroying the objects of wounded soldiers or martyrs that does not fall into one of the cases specified in the Chapter "Crimes of encroachment on the property of martyrs".
possession crime”. The name of the crime and the basic elements of this crime may be as follows:
“Article... Crime of appropriating or destroying relics of fallen soldiers or property of wounded soldiers in combat
1. Anyone who appropriates or destroys the relics of a fallen soldier or the property of a wounded soldier in combat, if not falling under one of the cases specified in the Chapter “Crimes against property”, shall be punished...”
- Article 340 of the Penal Code stipulates the crime of mistreating prisoners of war and deserters but does not describe the act of mistreating prisoners of war and deserters. While this act can be described in the spirit of the Geneva Convention of August 12, 1949 on the treatment of prisoners of war. To overcome this shortcoming, we propose to amend and supplement the crime of mistreating prisoners of war and deserters in the direction of describing the objective behavior and regulating the level of danger of the act in the composition of the crime. Accordingly, the crime of mistreating prisoners of war is an act of seriously insulting the dignity and honor; assaulting or failing to perform one's duty in treating and caring for sick or injured prisoners of war, causing serious consequences. The name of the crime and the basic composition of this crime may be as follows:
“Article… Crime of mistreating prisoners of war and deserters
1. Anyone who seriously offends the dignity or honor of a prisoner of war or a deserter; assaults or fails to perform his or her duty in treating or caring for a sick or injured prisoner of war or deserter, causing serious consequences, shall be punished...”
3.2.3.4. Completing the crime composition of the crime of violating the regime of performing military service in active service
The crime of desertion is the act of leaving the unit without permission or not being present at the unit as prescribed in order to avoid service obligations.