Khóa luận tốt nghiệp: Capital punishment in Vietnamese and Chinese criminal law: A comparative perspective

The history and development of capital punishment in China 20 Conchasion tù Chippy tee Uses ssssssessssosaissasessasscsssrciesasseaussansssenereasspeassatsasdapnioracaneasies 21 CHAPTER

MINISTRY OF JUSTICE MINISTRY OF EDUCATION AND TRAINING

MINISTRY OF JUSTICE MINISTRY OF EDUCATION AND TRAINING

STATUTORY DECLARATION

1 herewith formaliy declare that i ynyseifhave written the submitted Bachelor'sThesis independently, the conclusions and

data in the Bacheior’s Thesis are truthful

and reiiabie./

Confirmation of supervisor Author of Bachelor ’s Thesis

PhD Do Thi Anh Hong Tran Trung Kien

ACKNOWLEDGMENTSFirst and foremost I extend my deepest gratitude to my supervisor PhD.

Do Thi Anh Hong for providing me with the invaiuabie opportunity to pursue

my graduation thesis on the topic “Capital punishment in Vietnamese andChinese Criminal Law: A Comparative Perspective” I an also profoundlythankful for her guidance and insightful advice Her patience, support andencouragement throughout the process of doing the thesis have been a source

of great inspiration to me, making it an honor and privilege to work under hertutelage

Additionally, I owe a heartfeit thank you to all the faculty members ofHanoi Law University Their unwavering support played a crucial role in myacademic journey, enriching my understanding of lav and enhancing myproficiency in English, enabling me to articulate my thoughts effectively

I must also express my sincere appreciation to my parents for theirunconditional love, care, and the sacrifices they made to ensure my educationand future success My gratitude extends to my friends for their moral supportand to my classynates, whose assistance was vital in the completion of thisthesis

And lastly, recognizing my limitations in professional experience andknowledge, it would be greatly appreciated if i received any feedback orSuggestions on improving the thesis content from ail lectures

Thank you for everything!

Author of Bachelor's Thesis

Tran Trung Kien

ili

LIST OF ABBREVIATIONS

tc.

International Covenant on Civil and Political Rights

eople’s of Republic China

niversal Declaration of Human Rights

et cetera (and so forth)ICCPR

page (pages)

PRCUDHR

CHAPTER 1: OVERVIEW OF CAPITAL PUNISHMENT

TABLE OF CONTENT

Slide cover i Statutory deciaration ii

Acknowledgments ili

List of abbreviations iv Table of content v

PREP AGE taoiiisaeuoontiidnuittgiltdtiftgilidtiobtl6lisgttsưvgtgiaaitashanawd 1

1 Rationale of the Thesis

2 Literature review of previous studies to the topic

2.1 Foreign researches

2.2 Domestic researches

3 Comment on the previous researches related to the topic and

the issues succeeded, supplemented and developed by the Thesis

3.1 | Comment on the previous researches related to the topicand the issues succeeded

3.2 The issues implemented and developed by the Thesis

4 Scientific and practical significance of the Thesis

4.1 Scientific significance

4.2 Practical significance

Research objectives of the Thesis

6 Research objects and research scope of the Thesis

6.1 Research objects of the Thesis

6.2 Research scope of the Thesis 4s Methodology and research methods

11 The concept of punishment

1111 The definition of punishment1.1.2 Characteristics of punishment

12 The concept of capital punishment

1.2.1 The definition of capital punishment1.2.2 Characteristics of capital punishment

13 Significance of capital punishment

14 The history and development of capital punishment đEGBBNBbGbGbœbGœœœœxsxsxoòU>+

1.4.1 The history and development of capital punishment through early SoCieties che 15 1.4.2 The history and development of capital punishment in

VI ANH oiztct2giz20i/6ãgi188068159S0408/801GG:ã188%x¿609gã86ã097đ01100464G80180 18

1.4.3 The history and development of capital punishment in

China 20 Conchasion tù Chippy tee Uses ssssssessssosaissasessasscsssrciesasseaussansssenereasspeassatsasdapnioracaneasies 21 CHAPTER 2: CAPITAL PUNISHMENT IN VIETNAMESE AND

CHINESE CRIMINAL LAW

2.1 Provisions on capital punishment in Vietnamese criminal law

in Vietnamese criminal law sesssesssessessescseesseesseeseessersneessessessnesneesssenss 22

2.1.2 Provisions on capital punishment’s exceptions in Vietnamese GRMN A LAW cuaoittoonaisnsataddtiatuilidig iaigidtigitiattiisitG3805180/3000308 0886 23 2.1.3 Provisions on the execution of capital punishment in

Vietnamese criminal aw ssscssesssesssessneeseessesssecsneeseessnesnecsnecsnecnnesseesssenes 2

2.2 Provisions on capital punishment in Chinese criminal law 34

2.2.1 Provisions on types of crimes eligible for capital punishment

in Chinese Criminal LAW sisssiesssisssscscossesssissessisustsvasesvssscssesveiscatocaibvesssdvanves 342.2.2 Provisions on capital punishment’s exceptions in Chinese

criminal law 362.2.3 Provisions on the execution of capital punishment in Chinese

2.2.4 Provisions on methods of execution in capital punishment in

Chinese criminal law2.3 Provisions on capital punishment in Vietnamese and Chinese

criminal law from a comparative perspective cccccscssseesssessesesesererseseseeeees 45

2.3.1 Provisions on types of crimes eligible for capital punishment

in Vietnamese and Chinese criminal law from a comparativeperspective

2.3.2 Provisions on capital p unis! it’s excep tions in Vietnamese

and Chinese criminal law from a comparative perspective 46

2.4 Reasons for similarities and differences

Conclusion of Chapter 2

-. CHAPTER 3: IMPLICATIONS TO IMPROVE PROVISIONS ON

CAPITAL PUNISHMENT IN VIETNAMESE CRIMINAL LAW 52 3.1 Guiding principles for the proposals to improve on provisions on

capital punishment in Vietnamese criminal law - - .c 523.2 Specific proposals to improve provisions on capital punishment in

Vietnamese criminal law

3.2.1 Specific proposals to improve provisions on type of crimes

eligible for capital punishment in Vietnamese criminal law 543.2.2 Specific proposals to improve provisions on capital

punishment’s exceptions in Vietnamese criminal law 55

3.2.3 Specific proposals to improve provisions on the execution of

capital punishment in Vietnamese criminal ÌaW - co 563.2.4 Specific proposals to improve provisions on methods of

execution in capital punishment in Vietnamese criminal law Conclusion of Chapter 3

CONCLUSION

REFERENCES

1 Rationale of the Thesis

Capital punishment, also known as the death sentence or death penalty hasbeen used as a method of enforcing the law in many countries around theworld for many years It’s the ultimate form of state-sanctioned punishment,

remains a deeply divisive issue in the 21st century This thesis seeks to delve

into this terrntory through a comparative perspective, specifically byexamining the first part of the thesis, the rationale for capital punishmentwithin the criminal law systems of Vietnam and China Both nations share

historical, cultural, and ideological ties, yet have adopted distinct approaches

to the death penalty.

Understanding the rationale for the thesis requires a multifaceted

approach that transcends legal codes and statistics This thesis delves into not only the historical and ideological underpinnings of capital punishment in

both nations It also explores the types of crimes falling within the scope of

capital punishment and the circumstances in which it is not applied, the legal

procedures and processes involved, as well as the methods of execution incapital punishment, along with altemative sentencing options in Vietnamese

and Chinese criminal law.

Therefore, these collectively justify the selection of the topic “Capital

punishment in Vietnamese and Chinese Criminal Law” for the Bachelor'sThesis

2 Literature review of previous studies to the topic

2.1, Foreign researches

Hugo Bedau’s work in 2004, “Death Penalty in America” isn’t just a

comprehensive analysis, it’s a relentless interrogation of the very foundations

of capital punishment B edau dives into the deterrence research, exposing the

lack of conclusive evidence and raising concerns about unintendedconsequences He meticulously unpacks the legal complexities, scrutinizing

due process and highlighting the risk of irreversible errors in a systemsusceptible to human fallibility Bedau’s work serves as a powerfulindictment of the death penalty, compelling readers to grapple with its ethicaland practical shortcomings.

“Evaluating the Deterrent Effect of Capital Punishment on Crime” byPermiterio Leocadio (2010) This thesis focuses on the deterrent effect ofcapital punishment on crime It addressed the theoretical arguments for and

against the use of capital punishment as a deterrent and examined its collateral consequences, especially on juveniles, insane individuals or minonties The

thesis also weighs the benefits and costs of capital punishment’s application

“Capital Punishment in China: Towards Effective Public Policy and Law”

by Lilou Jiang (2020), this research delves into the evolution of the Chinesecapital punishment law and policy from 1979 onwards; and investigates the

institutional and procedural shortcomings that led to pre-tnal torture, wrongful convictions, and executions of innocent or vulnerable people, and

explores the prospects for restricting the application of the death penalty inretentionist China by focusing on feasible legal and policy changes to assurefair trials in capital cases

“Strong Court mild punishment: The death penalty and the role of court

in contemporary China” by Xi Li (2021), this thesis is from the University of

Hong Kong and it examines the use of the death penalty in China since the establishment of the People’s Republic of China This thesis studies the dynamic decision-making process in the death penalty cases and assesses the

development and potential of Chinese courts in restricting and reducing theapplication of the death penalty in China It also looks into the reforminitiatives taken by the Chinese court to restrict the application of capital

punishment and then explores the interaction between the court and political institutions, other criminal justice institutions, defense lawyers, and

increasingly influential public opinion in the death penalty decision-making

how capital punishment is viewed and applied within Vietnamese society and

law It also discusses how the death penalty has historically been used as a

tool by the state to oppress actions against the govemment and to maintain political stability.

“Capital Punishment: A comprehensive Analysis of Vietnamese andSingaporean Criminal Ly” by Nguyen Quy Khuyen (2009) this work

delves into a comprehensive analysis of the fundamental theoretical

arguments surrounding the death penalty in Vietnam and Singapore It alsoexamines intemational law and the global trend of capital punishment,highlighting its continued prevalence worldwide The thesis explores theintricate issues surrounding the question of whether capital punishment

should be implemented or abolished, and to what extent, considering the co-existence of both abolitionist and retentionist trends.

“Limiting the Death Penaity in the Criminal Codes of Vietnam:

Application in Recent Cases“ by Nguyen Thi Phuong Hoa (2023) focuses onthe gradual limitation of the death penalty as a sanction in Vietnam Itparticularly examines the changes in the Vietnamese Criminal Code of 2015,

as amended in 2017 significantly restricts the number of crimes that canreceive the death penalty This article compares and analyses the categories of

crimes in respect of which the death penalty can be imposed, using a

historical approach that begins with the country’s first Criminal Code, of

1985 This thesis also likely explores the evolving legal landscape in Vietnamregarding capital punishment, analyzing how recent legal reforms and caseapplications reflect a shift in the country’s approach to the death penalty.

“Death penalty in Vietnam's Feudal Criminal Lav” by Hoang DinhDuyen, a Ph.D candidate at the School of Law, Vietnam National University.This article is an excerpt from the Ph.D thesis which the author is working on

It shows that capital punishment in Vietmam’s feudal history is heavily

influenced by China’s feudal law, which represents the social context’s objectivity and identical features It also provides that the death penalty in

Vietnam's feudal criminal law is exceptionally severe and applied to differentcrimes, including corruption, furthermore, there is no distinction between

crime and ethical violations.

It can be concluded that the majority of researche on capital punishment in

Vietnamese criminal law has not given a comparison view with Chinese

criminal law yet Hence, the study “Capital punishment in Vietnamese and

Chinese criminal lav: A comparative perspective” does not coincide withthese previous studies This is a completely new study that focuses on capitalpunishment in Vietnamese criminal law in comparison with Chinese criminal

Drawing upon the theoretical frameworks explored in these studies,

particularly regarding the ethical and practical considerations surrounding

capital punishment, the author can establish a comprehensive overview of

capital punishment These studies highlight the complexities inherent in capital punishment, including its historical roots, societal attitudes, deterrence

effectiveness and legal reforms Additionally they underscore the ethical

dilemmas and human rights implications associated with capital punishment.

In addition to this, regarding the current provisions of criminal law on

capital punishment, studies conducted both domestically and internationally have conducted thorough analyses and assessments of the relevant provisions

in the criminal law of Vietnam and China Works by previous researchers

offer valuable insights into the legal and policy frameworks goveming capital

punishment Therefore, these comprehensive investigations serve as a crucialresource for the author to refer while developing Chapter 2 and also inChapter 3 of this Thesis

Concerning proposals to enhance provisions of criminal law regardingcapital punishment, a significant body of research advocates for reforms

aimed at mitigating the severity and scope of capital punishment, emphasizing

the human rights standards and practical considerations in addressing crime

In Vietnamese criminal law, a number of domestic researches have identifiedbasic orientations and principles in improving Vietnamese criminal law.These studies shall be extremely useful references for Section 3.2 in Chapter

3 of the Thesis

3.2 The issues implemented and developed by the Thesis

One of the basis of assessing the previous domestic and foreign researches

related to the topic, the Thesis identifies several issues that need to be furtherdeveloped as follows:

#rsfù', regarding the overview of capital punishment, the Thesis starts bywith the broadest definition of punishment before delving into a more specificdefinition of capital punishment, the concept of capital punishment and its

significance, and the historical evolution of capital punishment in Chapter 1

of the Thesis

Secondly, regarding the current provisions of capital punishment, theThesis broadens the research object and scope to compare the currentprovisions of capital punishment in criminal law domains of two countriesVietnam and China, which are detailed in Chapter 2 Which, the thesis delvesinto the types of crimes eligible for capital punishment, its exceptions, theexecution of capital punishment and the methods of execution of capital

punishment.

Thirdly , regarding the proposals to improve provisions of criminal law on

capital punishment, the Thesis continues to study the guiding principles for

the proposals to improve provisions of Vietnamese criminal law on capitalpunishment; thereby, indicating specific proposals to amend the current PenalCode of Vietnam on the types of crimes eligible for capital punishment,capital punishment’s exception, the execution of capital punishment andmethods of execution in capital punishment in Section 3.2 in Chapter 3 of this

Thesis.

4 Scientific and practical significance of the Thesis

4.1 Scientific significance

The Thesis holds great scientific significance for multiple reasons It offers

a nuanced understanding of how two culturally and geographicallyintertwined legal systems grapple with the complex ethics and practicalities of

capital punishment by delving into their legal frameworks, application pattems, and evolving public discourses, the research contributes valuable insights to the global debate on capital punishment

The comparative perspectives illuminate the impact of historical andpolitical factors on capital punishment policies Exploring the legacies offeudal law, socialist ideologies, and recent economic transformations in both

nations enriches our understanding of how historical and political contexts shape contemporary approaches to criminal justice The comparative analysis

can provide valuable recommendations for policymakers seeking to optimize

their capital punishment systems in light of evolving ethical considerations,

empirical evidence, and international human rights standards.

4.2 Practical significance

The Thesis offers recommendations for legal reform in Vietnam andChina, empowering a more transparent and equitable application of capitalpunishment It shows how both countries handle the death penalty, good andbad This helps them fix their laws and gives tips to other countries andstrengthens the voice of human nghts advocates For example, if it is found

that one country has more stringent safeguards against wrongful convictions

in death penalty cases, the other country might consider adopting similarmeasures And of course, by comparing the approaches of Vietnam and China

to capital punishment, this thesis can shed light on the strengths and

weaknesses of each system

5 Research objectives of the Thesis

#ìrsfiy, it endeavors to conduct a comprehensive comparative analysis ofcapital punishment in Vietnamese and Chinese criminal law Specifically incomparing the legal frameworks governing capital punishment in bothcountries, in order to shine a light on how each uses the death penalty, fromthe crimes it applies to the way sentences are decided Then, the exploration

of historical, cultural and institutional contexts within both legal systems.

Uitimnately , the Thesis seeks to critically assess the practical implications of

capital punishment in Vietnamese and Chinese legal landscapes.

6 Research objects and research scope of the Thesis

6.1 Research objects of the Thesis

The research objectives of the Thesis include the different opinions related

to the overview issues of capital punishment and also the current provisions

on capital punishment in Vietnamese and Chinese criminal law from a

comparative perspective It not only delves into the practical implications but

also involves the exploration of the historical development of capital

punishment policies in both countries, examining how often the penalty isused and who it falls upon, the surrounding death penalty applications andsentencing procedures It delves into a “bigger picture” of the issue which isthe real world, exploring how and what citizens in Vietnam and China thinkabout capital punishment Additionally, the Thesis examines policyrecommendations for enhancing the effectiveness of capital punishment inVietnamese and Chinese criminal law.

6.2 Research scope of the Thesis

The Thesis casts a wide net and explores and compares capital punishment

in both Vietnamese and Chinese cnminal law It dissects the historical

development, investigating statistics on death sentences and executions in

Vietnam and China, identifying factors influencing the application of thedeath penalty such as the type of crimes and institutional influences It seeks

to learn from each nation’s experiences and identify the best practices for this

issue The thesis is not only approached and implemented from the

perspective of comparative law but also delves into criminal procedure law,criminal enforcement law, criminal law and practical application

7 Methodology and research methods

7.1 Methodology

In the Thesis, the writer utilizes the methodology of dialectical materialism

and historical materialism rooted in Marxist-Leninist philosophy Furthermore, to carry out the set research tasks, the Thesis applies Ho Chi

Minh’s thoughts on the State and Law, viewpoints of the Communist Partyand The State of Vietnam regarding the establishment of a rule of law state,judicial reform, and intemational integration Last but not least, criminal lawtheory serves as the pivotal methodological foundation for the writer toexplore legal provisions related to capital punishment within the domain of

criminal law.

7.2 Research methods

rst, the analysis method, including theoretical research with practice is

the main method used in this Thesis to give us a detailed examination of the

current laws and regulations governing capital punishment, interpreting legal

texts and understanding how they are applied in criminal law

Second, the historical method, the historical method used in the process ofgathering historical data, the development of capital punishment in Vietnamand China, reveals shared influences or distinct national trajectories

Third, a synthesis method was used mainly in the process of collecting

documents, opinions and solutions to complete the law on capital punishment

and to understand how each system operates within its respective legal and

cultural framework and potential areas for cross-jurisdictional learning and

improvement

8 Thesis structure

In addition to the Preface; Literature review of previous researches related

to the topic; conclusion and references, the contents and results of the Thesisinclude three chapters

Chapter 1: Overview of capital punishment

Chapter 2: Capital punishment in Vietnamese and Chinese criminal lawChapter 3: Implications to improve on capital punishment in Vietnamesecriminal law

CHAPTER 1: OVERVIEW OF CAPITAL PUNISHMENT

111 The concept of punishment

1.1.1 The definition of punishment

Punishment is one of the crucial components specifically regulated in the

criminal laws of countries worldwide The construction of punishment varies

depending on the legislative perspective, political-legal, and socio-economicconditions of each country However, the concept and purpose of punishmentare not always officially recognized in the criminal laws of all countnes.Defining the concept of “punishment” is not straightforward due to itscomplex and multifaceted nature.1

Punishment is a topic that concems everyone in society Why and how we

should punish crimes remains pertinent, particularly when considering who it

should be delivered by and to Thom Brooks, a philosophical-legal academic,

addresses questions such as these in his critical introduction to the philosophy

of punishment For Brooks, punishment is a response to a crime that mustinvolve a loss (including a loss of liberty or money for example); must only

be administered when someone has broken the law, and, can only be used by

an authority with a legal system? This statement reflects a fundamentalprinciple in the philosophy of punishment, emphasizing that punishment, byits nature, implies imposing a form of deprivation or suffering as a response towrongdoing, this loss can take various forms, such as freedom, financialpenalties or other forms of retribution This perspective aligns with traditional

views of punishment that see it as a necessary response to maintain legal and moral order, ensuring that crime does not go without consequence However,

he only refers to punishment as imprisonment and does not consider non-penal responses to crime, such as community sanctions or probation, as a

form of punishment — this is a worrying assumption, which could underminethe attempts of non-custodial sanctions to instead be seen as a “softaltemative"3.

: Tam Hai Yen (2021) Comparative Study af the Penal Spstem in Viemam with Some Comutries in the World, Eimoi Lave Unwersty,p 25.

2 Tham Brociks (2012), Prmisloent NY, Routledge p 1-2.

” Catlin Gamley, The Kehingrove Review of Thom Brooks’ book “Punishment” Issue 11 titled (New Horizons) , available at }£tos:/levzrw gia ac vicén ectin/Mecia_ 279240 s:cc pdf, accessed om 18 Jawary 2024.

Another approach to the definition of punishment is from Chris Vaden

“Punishment is utilized in many settings in the world today, whether it is at

home when a parent is not pleased with the behavior or actions of her child orwhen a man breaks a law and become a target of the justice system.Punishment is acceptable in numerous situations that occur every day, it is

ingrained into the human psyche that justice is served when punishment is

applied Punishment is used to teach, reform, and persuade individuals to

accept what members of society view as acceptable or tolerable behavior’.

With this perspective, we can see that punishment operates in various aspects

of human life, including parenting, education, criminal justice, societal norms,international relations, and environmental conservation Even though ChrisVaden’s thesis mainly focuses on the dynamics of punishment within a

business domain However, the core principles and insights he discusses can

be extrapolated to broader applications of punishment outside the business realm This perspective aligns with broader discussions in criminal justice and

social policy

According to another interpretation by Raymond G Miltenberger - aprominent psychologist and behavior analyst known for his significantcontributions to the field of applied behavior analysis and behaviormodification “Many people define punishment as something meted out to aperson who has committed a crime or other inappropriate behavior’ >.

Applying this definition means that the punisher not only intends to end the

behavior but also seeks retribution and hurt to the wrongdoer The personbeing punished is seen, to deserve the negative effects caused by the use ofpunishment Punishment, by this definition, is therefore used as a device toend unacceptable conduct and as a tool of retribution The negative auratriggered by the use of the word punishment is a result of this definition

+ Chris Vaden (2004), Panshment: Benefit, Risks, and Alternatives in a Business Setting, Libati University p.4-5.

? Miterbeger, Rayaawd G (2004), Behmior modification: Prouciples and procedwes, Bema, CA 'YadswertVThem sơn Leaming.p 114.

In general, we delved into a wide net of punishment, each author offering

a brushstroke to our understanding And Thom Brooks did provide acomprehensive definition of punishment and its use throughout the bookwhich follows a legal and Hegelian paradigm: the justification of punishmentrelies upon criminalization only under a just legal system §

1.1.2 Characteristics of punishment

By analyzing the definitions of punishment, it is obvious that punishmenthas the following characteristics Firstly, punishment is the most severe

means of coercion After all, the legal system codifies penalties as formal

punishments, ranging from fines and community service to imprisonment andcapital punishment These consequences carry undeniable gravity, with thepotential to strip individuals of freedom, impose financial hardship, and inflictsocial stigma The threat of punishment alone casts a long shadow, deterringcrime through fear and anticipation of negative outcomes Secondly,

punishment can only be imposed on those who commit unlawful offenses No

one deserves to be punished unless they have broken a clear and establishedlaw, it’s like playing a game: the rules have to be set forehand, everyone has

to know them, and only when those miles are broken can there be

consequences Finally, the punishments should only be enforced by thecompetent authority While emotions and righteous anger might demand

immediate reactions, a society truly committed to faimess entrusts the power

to punish those vested with the responsibility and authority to do so with due

process and respect for human dignity

1.2 The concept of capital punishment

1.2.1 The definition of capital punishment

Capital punishment is the most severe punishment in the State’spunishment system, depriving the most important right, the right to life In

each country’s criminal law, capital punishment exists as an objective

2 VImE Wikeke Huảih Hegel (1821) Philosophy of Right Gell London mADĐE at https /envor mancists oxgsteference farchize lege Vererksiprhhilosophyy.cf right pdf accessed on 18 Tammy 3024.

phenomenon since it is the means for society to defend the common good

against the violation ofits existing conditions

A more specific definition of this punishment “Capital punishment, orsentence, is a sentence that imposes the death penalty, the execution of anoffender sentenced to death after conviction by a court of law ofa criminaloffense Capital punishment should be distinguished from extrajudicialexecutions carried out without due process of law"” This definition of capital

punishment indicates several qualities that capital punishment sustains in the contemporary world In principle, it is a criminal penalty and the most severe

form of punishment Provided for in a legal instrument, often a Statute of anAct, imposed by a court of law through a legal process on an offender fortheir committing a prohibited criminal act prescribed in a code oflawŠ

Besides, we all know that in the system of criminal penalties, the death

penalty is considered the most severe and exceptional punishment It is not aimed to rehabilitate or reform the offender but is intended for retribution,

effectively revoking their right to life and completely eliminating theirpotential to commit further crimes From the above considerations, we deriveyet another definition of capital punishment “The death penalty is apunishment that deprives the convicted person of the right to life’? Fully, itcan be acknowledged that the death penalty is the deprivation of a person’s

life under a judgment declared by a lawfully established court, to punish that

person for committing a serious crime.”

1⁄22 Characteristics of capital punishment

To understand more about how its weight upon both society andcondemned, by analyzing the definition of capitial punishment It’s obvious

> Ewyclepedia Brame about Capinl Rmihment, available at lttps //enewrbeitamica com topic eeptalamides ent, accessed on 18 Jarmury 2024.

5 va Cong Gino (2019) The Changing Nature of Death Penalty in Viemam: A Historical and Legal Juguiry, MDPLAG,

Ỳ Law dctionmry, Lustinte of Legal Sciences of Ministy of Justice, Vietvex Encyclopedia Publishing House and Todicial

Publishing House p.$20.

no Lawyers Association (2008), Death penalty in the nternational law, Hong Duc Publishing House, Hoi p.

that capital punishment has the following characteristics #3r3Ù, capital

punishment is intended to deter recidivism by eliminating the possibility of

future offending, but it does not have a rehabilitative purpose as it removesthe opportunity for offenders to reintegrate into society and reform!.However, this pursuit of deterrence comes at the cost of abandoning anyrehabilitative goals By eliminating the possibility of reintegration, capitalpunishment denies offenders the chance to atone for their crimes and

contribute positively to society Secondly, capital punishment has the potential

to be highly effective in general deterrence The undeniable severity of this

penalty carries profound psychological weight, unlike other punishments, thefinality of capital punishment delivers a stark message — that certain crimescamy consequences beyond just rehabilitation or incarceration This messagehas the potential to resonate deeply with potential offenders, serving as apowerful deterrent and preventing them from crossing the line into

irreversible transgression Additionally, the deterrent effect can extend

beyond the immediate offenders, the public’s awareness of the consequences

of crimes can instill a sense of societal accountability and responsibility,

knowing that such actions will not be tolerated without severe repercussions

can influence the general public’s behavior Thirdly, capital punishment is a

non-reversible penalty, meaning that it can’t be undone if the person is later found to be innocent When the consequences are as serious as ending someone’s life, everyone in the system has to be more careful than ever.

Lawyers double-check their arguments, and judges scrutinize every detail,knowing one mistake could end a life forces everyone to be extra careful,preventing injustice that might happen in less serious cases This also sends apowerful reminder that ending a life, even under the law, is a serious and

irreversible decision.

1.3 Significance of capital punishment

:: Hoang Vit Bach (2022), Capital Panishment under the 2015 Penal Code, Hmoi La Universty.p 6.

In the context of the complex development of high-risk crimes in society

today, the regulation of capital punishment has a particularly important

significance Especially in the criminal law domain, when considering thedecision of a type of punishment for the offender, it must be ensured to becommensurate with the nature and level of danger of the crime B ecause thereare kinds of people out there, who are willing to commit crimes wheneverthey have the opportunity, some offenders whose gangsterism and somewhose stubbomness has become inherent, and that is impossible to reform and

educate them For these offenders, other types of punishment are not enough

to ensure justice and public safety To ensure social order and security, in

such cases, capital punishment can have the potential to achieve the purpose

of specific prevention The regulation of capital punishment makes aconstructive contribution to the duty of protecting citizens’ safety, life, health,honor, dignity and property.2

14 The history and development of capital punishment

1.4.1 The history and development of capital punishment through early

societies

Capital punishment had one of its earliest delineations in the Code of KingHammurabi of Babylon, which specifies death for twenty-five differentoffenses, although murder was not one of them The first death sentence

historically recorded occurred in the 16th Century BC in Egypt where the wrongdoer, a member of the nobility, was accused of magic, and ordered to

take his own life

In the 14th Century BC, the Hittite Code also prescribed the death penalty.The 7th Century BC Draconian Code of Athens made death the penalty forevery crime committed In the Sth Century BC, the Roman Law of the Twelve

Tablets codified the death penalty Again, the death penalty was different for nobility, freemen and slaves and was punishment for crimes such as the

': Tran Thu Hayen (2006) Some theoretical and practical issues on capital punishment in the Vietnamese Criminal Law, moi National Unizersity p 23.

© Jol MP Smith (1961) The Origin and History of Hebrew Law, Chicago: University of Chicago Press, p 183-222.

publication of libels and insulting songs, the cutting of grazing of crops

planted by a farmer, house buming or a stack of com near a house, cheating

by a patron of his client, perjury, making disturbances at night in the city,willful murder ofa freeman or a parent, or theft by a salve!! Death was oftencruel and included crucifixion, drowning at sea, burial alive, beating to deathand impalement The Romans had a curious punishment for parricides — themurder of a parent: the condemned was submerged in water in a sack, whichalso contained a dog, a rooster, a viper and an ape 1 The Romans were made

treason and murder capital crimes By automatically making murder a capital

offense, they hope to reduce the incidence of tribal feuds!® Even so, the deathpenalty was rarely imposed on citizens and was abolished altogether in 299

BC — one of the earliest “abolition” moves in the history of the movement.”

Not every ancient civilization used capital punishment extensively or even

in the same way The Assyrians, although influenced by the Code of

Hammurabi, did specify death as a punishment; among them mutilation was a

more common punishment!® The Hittite empire was also restrained in its use

of the death penalty, applying it in only eight offenses Murder, the one cnmefor which modem states most often retain the capital penalty, was in Hittitesociety punishable by a fine’ Still, these facts do not mean that Hittite, oreven Assyrian, society was lenient regarding to criminal punishment.Secondary penalties such as flaying, castration and impalement must have

often had the same effect as the death penalty in the end, since the subject

criminal probably died from infections caused by such treatment

Mosaic Law codified many capital crimes There is evidence that Jewsused many different techniques including stoning, hanging, beheading,crucifixion (copies from the Romans), throwing the criminal from a rock, and

'+ John Lmarence (1960), A History of Cpital Prnishent, Neve York: The Cadel Press p.3.

* Jol Laurence (1960) A History of Cupital Prousiuent, New Youk: The Citadel Pressp 1-3.

!* Jom MP Smith (1961) The Origm and Hstory of Hebrew Law, Chicago: University of Chicago Bress p 247-374 Thorsten Sellin (1967) Discussion of the Romum debate on abolinion “An Ancient Debate of Cupital Pntisinnr”, New York: Huper and Row 46-54

!* JedhaMP Smith (1961), The Origin and Hstory of Hebrew Law, Chicago: University of Chicago Press p 183-222.

© Jol MP Smith (1961) The Origin and History of Hebrew Law, Chicagp: University of Chicago Bress p 247-274

sawing asunder The most infamous execution in history occurred

approximately 29 AD with the crucifixion of Jesus Chnst outside Jerusalem.

About 300 years later, Emperor Constantine, after converting to Christianity,abolished crucifixion and other cruel death penalties in the Roman Empire In

438, the Code of Theodosius made more than eighty crimes punishable by

death.

Britain influenced the colonies more than any other country and has along history of punishment by death, stretching back to 450 BC, from hurling

the condemned into mud pits to hanging from the gallows by the 10th

Century, this was the most frequent execution method William the Conqueroropposed taking life except in war and ordered no person to be hanged orexecuted for any offense However, he allowed criminals to be mutilated fortheir crimes Dunng the Middle Ages, capital punishment was accompanied

by torture Most barons had a drowming pit as well as gallows and they were

used for major as well as minor crimes For example, in 1279, two hundred

and eighty-nine Jews were hanged for clipping coins Under Edward I, twogatekeepers were killed because the city gate had not been closed in time toprevent the escape of an accused muderer Buming was the punishment forwomen’s high treason and men were hanged, drawm and quartered Beheadingwas generally accepted by the upper classes One could be bumed formarrying a Jew Pressing became the penalty for those who would not confess

to their crimes Boiling to death was another capital punishment approved in

1531, and there are records to show some people boiled for up to two hoursbefore death took them ?

As we trace the path of capital punishment’s early joumey leaves us with

a truth: societies have long grappled with how to punish, often resorting to

gruesome and barbaric methods While we've traced some of this path, from mud pits to boiling cauldrons, many questions remain buried in history's

> Michael H Reggio (1997), Societv’s Final Solution: A History and Discussion of the Deatk Penalty, availible at itp ema ps orgferpbh frente rt le history-of-the-death-peralty AEn3, accessed on 20 Jarmary 2024.

shadows F or understanding the history is not just about morbid curiosity It’s

about seeing how our legal systems and values grew.

1.4.2 The history and development of capital punishment in Vietnam

During ancient times and throughout vanous Vietnamese dynasties,capital punishment was influenced significantly by Chinese legal traditionsdue to centuries of Chinese mile and cultural exchange In every certainhistorical time of human society, the law is developed on universal standards

National unity and stnct social management, created a strong anti-aggression power It is not a coincidence that Dinh Tien Hoang, the founder of The Dinh

Dynasty, one of the first dynasties that prepared the foundation for thedevelopment of Dai Viet later had to use such devastating measures asthrowing offenders in a cauldron of boiling oil or leaving them in a cage tofeed the beast of death sentence as ways of popular punishment to suppressoffenders.*!

Since 938, The Vietnamese country — The nation has been officially

independent until the present time, despite many historical events and changes

in dynasties, and various political and social regimes, the death sentence is still maintained despite a gradually declining trend, but it has not been

removed from the punishment system, reflecting the consistency of criminalpolicy in general and the death sentence in particular The death sentence has

established its position in Vietnamese cnminal law in particular and social life

in general with values and counter-values generally recognized In history, there have been periods when it was used as a tool to repress classes.

Vietnamese kings and lords did not hesitate to arrest, imprison, and murderthose opposing the interests of the ruling class, families and individuals ofkings and lords The fiercer the class struggle, the more popular the deathsentence is used and the level of cruelty and barbarism in enforcing the

punishment also increases The application of the death sentence, in this case,

`L Chpital Panvishment in Viemam: a Smdy from the Perspective of Tradiontal aud Modern Values, The Tounal of Midd East and Nath Africa Sciences, availible at hitps:/évwer jomenas org/2010 volS.05- htm) accessed on 21 Ternary 2014

is a political error, carried out by the civil service Typically, after The TranDynasty usurped the throne from the Ly Dynasty, “in August of Nham ThinLunar Yeah, under the posthumous name of Kien Trung 8th (1232) of KingThai Tong, Thu Do kill all people in Ly Dynasty’s royal family The deathsentence was not enforced ona strict legal basis but in many cases, it was “actfirst and report afterward”? In general, Early Vietnamese legal codes, such

as those during the Ly (1009-1225) and the Tran (1225-1400) Dynasties,included capital punishment for a range of offenses, both violent and political.These practices continued under the later Le and Nguyen Dynasties, reflecting

a blend of native Vietnamese customs and Confucian legal principles

During the French Colonial Era (mid 19th Century to 1954), theVietnamese legal system, specifically capital punishment, underwentsignificant changes, it was used by colonial authorities for serious crimes,including those against the colonial government This era also saw the use of

capital punishment as a tool for suppressing anti-colonial movements After

that, there was the Geneva Accords in 1954, Vietnam was divided into thecommunist North and the anti-communist South, each with its own legalsystem In the communist North, it became a tool for consolidating politicalpower, targeting those deemed counter-revolutionary In the South, with itsseries of governments and strong American influence, capital punishmentremained in use Following the reunification of Vietnam in 1975, the newly

formed Socialist Republic of Vietnam adopted a legal system reflective of its

socialist ideology Capital punishment remained a part of this system,reserved for particularly serious offenses like murder, drug trafficking, andthose deemed threats to the state This continued use of capital punishment inthis system was not simply a legal tool, it was also viewed as a strategy for

maintaining social order and bolstering the fledgling political stability of the

= Capital Pndtimant in Vietnam: a Suâp from the Perspective of Tradiontal and Modern Values, The Tounal of

Midi East ad Nath Africa Sciences, avaible at https /érmvvr jamenss org/3010 vol5.05-hem) accessed cn 22 Tamuny 2004

unified nation In recent years, Vietnam’s approach to capital punishment has

evolved a noticeable shift, and it is partly influenced by intemational human

rights discourse and Vietnam s increasing integration into the global

community.

1.4.3 The history and development of capital punishment in China

Capital punishment has been a part of the Chinese culture for thousands ofyears It’s one of the Five Punishments of China’s Dynastic period InChinese philosophy, capital punishment was supported by the Legalists, but

its application was tempered by the Confucians, who preferred rehabilitation

and mercy over capital punishment”.

The use of the death penalty was especially pronounced during the QinDynasty (221- 207 BCE), according to whom its legality was applied as anideology concerning governing through laws without morals Han Fei, thefounder of this ideology describes it as follows: “The ruler govems the rulesand regulations and, by extension, life and death’** The use of brutalpunishment was to serve as a deterrent for the prevention of future crimes.During the Han Dynasty (206 BCE - 220 CE), Confucianism began tomoderate the harshness of the legal system, but capital punishment remained akey component of criminal law Under the Punishments of Lu (Lu Xing),written sometime in the Warring State Penod (475 — 221 BCE), there were

200 capital offenses?”, punishable by death, indicating a strict and

comprehensive legal system This high number of capital crimes also reflects

the hamess of legal practices in many of the states during the Warring StatesPeriod, where severe punishments were often used to maintain order DuringThe Tang Dynasty (618 - 907 AD), Chinese law took a significant stepforward with the creation of more structured legal codes These codesprescribed capital punishment for a range of serious offenses, including

» Borge Baldken (2013), The Norms of Death: On Attinudes to Capital Prnishment in Chinua in Chpita Punishment: A Heccard oa Sustainable Cron stce Sistem, LA\Scherda Acheste,p 169.

>+ Michal: Sting (2016) China coud the Death Penalty History and Gnrrent Developments, Grin Verlag p

`' Hong Lu & Terace D Misthe (2007), China’s Death Penalty: History, mẹ and Comtemporay Practices,

Rowtlegp.p 32-33.

murder, treason, and certain forms of corruption The Tang Code is one of theearliest and most influential legal documents in Chinese history And despiteits long-standing presence of capital punishment, the use of capitalpunishment in China has undergone significant shifts over time The number

of capital offenses spiked again under the Ming Dynasty (1368 - 1644 with

282 capital offenses and the Qing Dynasty (1644 — 1911) with more than 800capital offenses5 The Qing Dynasty (1644 — 1912) saw the last imperialversion of Chinese criminal law, The Qing Dynasty was a useful period with

which to begin a review of China’s traditional use of the death penalty Not

only have its institutions been regarded as the culmination of the Chineseimperial system, but it also marks a time when Westemers first madesubstantial contact with China?” Following the fall of the Qing Dynasty in

1911, the Republic of China attempted to modemize and reform the legalsystem, capital punishment was retained, but efforts were made to standardize

its application and incorporate more humane methods of execution Today,

China continues to utilize capital punishment for specific offenses, thoughongoing discussions concerning its ethical and practical implicationsunderscore the complexity of this deeply rooted historical practice

Conclusion to Chapter 1

In the exploration of the overview surrounding capital punishment, thischapter has shown that throughout history, capital punishment has evolvedfrom brutal forms of retribution to carefully regulated legal systems bydelving into the history of capital punishment Its significance has shifted withtime, reflecting changing societal values and evolving perspectives on justicewhile its characteristics have changed across eras, it has consistently fueledboth fervent debate and profound introspection

» Hong Lu & Terance D Miethe (2007), China’s Death Penalty: History, Law and Contemporary Practices, Rowledge p.32-33.

* Alm W Lepp (1990), The Death Penalty in Late Inperial, Modem, and Post- Tianarouen China Volume 11 Eowe 3, University of Michigm Law School, p 991.

The overview of capital punishment in Chapter 1 of this Thesis forms the

basis for the analysis of current provisions in Vietnamese and Chinese

criminal law in Chapter 2 and the proposal to improve new provisions inChapter 3

CHAPTER 2: CAPITAL PUNISHMENT IN VIETNAMESE AND

CHINESE CRIMINAL LAW2.1 Provisions on capital punishment in Vietnamese criminal law

2.1.1 Provisions on types of crimes eligible for capital punishment in

Vietnamese criminal law

According to Clause 1, Article 40 of the 2015 Criminal Law, capitalpunishment is a special punishment only applicable to those who commitparticularly serious crimes belonging to one of the groups of offenses againstnational security, offenses against human life, drug-related crimes, corruption,and some other particularly serious crimes as prescribed by the Criminal Law.Specifically, capital punishment entails the permanent elimination of highlydangerous individuals who are incapable of rehabilitation from society,thereby fostering a sense of security for the community and protecting those

at risk of future dangerous acts should the individual persist The UnitedNations Human Rights Committee has issued three General Comments No.6,

14 and 36, to clarify the content of the right to life and issued related to thedeath penalty More specifically, General Comments No 36 provides that theconcept of “most serious cnmes” must be understood very narrowly and onlyapplies to particularly serious crimes, including intentional homicide” ”

Researching the history of capital punishment in Vietnamese criminal lawfrom 1945 shows that Vietnam tends to gradually eliminate some types ofcrimes where the sentence is applicable Suppose the 1985 Penal Code (thefirst Penal Code of Vietnam) provided 44/216 Articles capable of applying

* Le Khác Dai (2016), Cpital Prouishment in International amd Viemuamese Law, Hanoi Law Unizersity p 10.

> ng Nas Hassan, Bags, Geer] comet No36 - Artich 6: ngt to Me, avbbl st

Serre cele comments-and-recamm comm extn0-36-wticle-6-right- lit

&, accessed on 30 Jeaey 2024.

the death penalty In the 1999 Penal Code, there were 29 Articles, The 2009Criminal Revision Code eliminated eight offenses of not using the deathpenalty?!, And the 2015 Criminal Law, amended and supplemented in 2017, eliminated applying capital punishment for seven cñmes32 In the 2015Criminal Law, there are still 18/314 crimes applying capital punishment,specifically, capital punishment is provided for in the Criminal Law for thefollowing types of offenses: Treason against the country — Article 108;Espionage — Article 110; Terrorism against the people’s administration —

Article 113, cnme of damaging material and technical facilities of the

Socialist Republic of Vietnam — Article 114; Murder - Article 123; Rapeagainst people under 16 years old — Article 142; Crime of manufacturing andcounterfeit trading products as curative medicines and preventive medicine —Article 194, Crime of illegal transportation of narcotics — Article 250;Terrorism — Article 299; Embezzlement — Article 353; Accepting bribes —

Article 354, Cnme of undermining peace, causing a war of aggression —

Article 421; Crimes against humanity — Article 422 and War crimes — Article423

2.1.2 Provisions on capital punishment’s exceptions in Vietnamesecriminal law

In addition to the condition that capital punishment can only imposed forthe most serious crimes, ICCPR also provides specific conditions on who cannot be sentenced to death? and the procedures for requesting commutation or

7 Le (ghi Mai ert Ten Tìny Tăng (2001) Death Penies end the Relation with inion of Rights wader

Vietnamese Law, availble

Jinw+xuneb +divV, file 0006/3609419/Le- ‘Mai Trav’ accessed on F

‘appropriation of narcotics, rape af children are the offenses subject to the death penalty most.

© Inchuiing: The crime of robbery of property: The come of production and trading in courterfex good is food food additives: Tle gally possessing narcotics, legally approprinting narcotics: Crine of destroying works, facilities or meas

‘mpartant to national security, ame of fightng orders aud strexingto memiss.

© Artick 6 5 Intemational Coverwet on Civil and Political Rights 1976.

reduction of sentence3f Vietnamese law has also recognized cases in which

capital punishment is not carried out

Based on Article 40, Clause 2 and Clause 3 of the Criminal Code of

2015, it can be seen that this article is divided into: cases in which capitalpunishment is not applicable and cases in which the execution of capitalpunishment is suspended Capital punishment does not apply to all offenders,and to the first type of cases, it does not apply to minors under the age of 18

who commit crimes, to pregnant women or women who are breastfeeding children under 36 months old at the time of the crime or when being tnal and

persons aged 75 years old or older at the time of the crime or trai?” Theexecution of capital punishment is also not carried out against pregnantwomen or women who are breastfeeding children under 36 months old,persons aged full 75 years old or more and a person who is sentenced to deathfor the crime of embezzlement or bribery, after being sentenced, voluntarily

returns at least three-quarters of the embezzled or bribed property and actively

cooperates with the authorities in the investigation, prosecution, andpunishment of crimes or achieve great merit, may be given a lesser sentence

36 This also shows that lawmakers, while regulating capital punishment, havealso paid attention to a basic principle of socialist law — the principle ofhumanity, the provisions demonstrate the remarkable progress of Vietnamese

criminal law in terms of humanitanan values It specifically prohibits the imposition of the death penalty on “individuals age 75 or over”, a category

not explicitly addressed in the ICCPR and other intemational legalinstruments?’ While ensuring faimess, convicted individuals must not onlyretum the embezzled or bribed assets but also demonstrate sufficient positivefactors to be considered for exemption from capital punishment The

implementation of capital punishment for corruption cases in the past has

Sr Article 64, heenveiatel Coverurt on Civil end Poltical Rights 1976

© Article 40.2, Vwtve Criminal Law 2015.

* Artick 40.3, Vienven Criminal Lew 2015.

© Duong Viet Dung (2019), Capital Punishment im the 2015 Croumal Law, Hoi Law Universty,p 29.

largely served to appease public outrage against corrupt individuals.

Consequently, some argue against abolishing capital punishment even when

at least three-quarters of the embezzled assets are retumed, advocating for itsretention as a deterrent.®

2.1.3 Provisions on the execution of capital punishment in Vietnamesecriminal law

The current Criminal Code of Vietnam has abolished the provisions thatthe execution of a death sentence must be carried out immediately after thetrial® Instead, the execution of a death sentence must be carried out by thegeneral procedures and procedures specified in the 2015 Criminal ProcedureCode and the 2019 Law on Enforcement of Criminal Sentences This ensuresthat there are special procedures in place to review and carefully check thedeath sentence before it is carried out, to avoid any irreversible errors.”

Additionally, the 2015 Criminal Procedure Code in Vietnam mandatesspecific procedures to ensure the utmost fairness and “reasonableness” of theoutcome*! These safeguards include mandatory legal representation for thedefendant, even if they have not appointed one themselves In such situations,the investigating agency, prosecution, or court will appoint a defenselaywer* Additionally, the trial panel itself is augmented beyond the standardcomposition, featuring two judges and three appellate judges to provide abroader perspective.*

If the defendant is subject to the death penalty, the law provides for theprocedures for considering the death penalty before the execution of the

* Hưeœ Thi Tush Mum (2017), New Developments in Capital Prnishouent in the 2015 Penal Code, The Law Jounal of Hanoi Law Lhửzersty Vokane $2017, p 63.

% Axticle 27 of the 1085 Criminal Code of Vietm provitiedthut the deathpenalty may be curried out immedintely after trial only i exceptional circumstances specifed by lew.

* Le Quynh Mai and Tran Thuy Hing (2021) Death Em: Rgiodi== ttoo Fimitarion of Rights ie

Viemamese Low,

pe Gatalassetsipat ie 0006 3600420/L2- yas Mas 7 Tre Tay Hepat accessed on b}

Traxmry 20:

+ Lê (ioe Nai and Tren Thay Hing (20311 Death Penalties and the Relation with Limitation of Rights mác

Viemamese Law, availble

Tay 2021

© Artirk 76, Viervm (rieal Procechre Code 2015.

© Artick 254 Vietam Criminal Procechre Code 2015.

judgment After the judgment takes legal effect, the case file must beimmediately sent to the Chief Justice of the Supreme People’s Court, and thejudgment must directly be sent to the Chief Procurator of the SupremePeople’s Procuracy for consideration and decision on the appeal whether ornot according to cassation procedures, re-review (time limit for review is twomonths) The convicted persons have seven days from the effective date ofthe judgment to send their application to the State President And in the case

where the convicted person has a petition for commutation of the death

penalty, the death penalty will be executed after the President of Vietnamrejects the petition for commutation *

According to Article 82, Clause 2 and Clause 3 of the 2019 VietnamCriminal Execution Law, before carrying out the execution, the DeathSentence Council must verify the identity, fingerprints and personal records

of the condemned person In case the condemned person is a woman, the

Council must also venfy the relevant documents related to the conditions for

not carrying out the death sentences as prescribed by the Penal Code At itscore lies a focus on meticulous verification, emphasizing identityconfirmation and personal record examination to prevent potentialmisidentifications and uphold due process And also before being taken to

execution, the condemned person is allowed to eat, drink, write a letter, and record a voice message to be sent to their family These article shows that these actions empower individuals to express their final wishes, potentially

seek forgiveness and maintain a semblance of dignity in their last moment.Specifically, Article 8 of Decree 82/2011/ND-CP on the execution of thedeath penalty that the person being executed is entitled to a food and beveragestandard 5 times higher than the standard for holidays and Tet holidays

prescribed for detainees In 2015, the Vietnamese public was shocked by the Binh Phuoc massacre, also known as the Nguyen Hai Duong case This

* Article 367, Vwtvm Cram imal Procecure Code 2015.

© Artick 367 2 Vwtrvm Cramimal Procechre Code 2015.

criminal case of murder and robbery took place on July 7, 2015 in Minh Hungcommune, Chon Thanh district, Binh Phuoc province Motivated by revengerand a desire to seize property, the mastermind Nguyen Hai Duong, along withtwo accomplices Vu Van Tien and Chan Dinh Thoai, planned to kill 6 people

in Duong’s ex-girlfriend’s family The Binh Phuoc Peoles’ Court sentencedthe two defendants, Duong and Tien to death for the crimes of murder androbbery Nguyen Hai Duong accepted the sentence and requested early

execution Then before the execution, he had a last meal and wrote a letter to his family and his last meal consisted of nearly ten dishes, including white

tice, fried eggs, boiled chicken, chicken salad, soup, orange juice and coffeemilk Granting the last meal requests of death row inmates is considered afinal act of grace and has become a common practice in many countries

around the world.

Also under Article 82, Clause 4 of the 2019 Vietnam Criminal

Enforcement Law, there are regulations on the procedure for enforcing

criminal sentences as follows:

Firstly, the procedure for escorting the person to be executed, based on thedecision to execute the death sentence and the request of the President of theDeath Sentence Execution Council, the Judicial Police for Enforcement ofCriminal Judgements and Judicial Assistance or the Judicial Assistance Guardshall escort the person to be executed to the place of work of the Death

Sentence Execution Counail.

The second step in the execution process involves specialized officersfrom either the People’s Public Security or the People’s Army undertakingseveral crucial tasks These officers meticulously collect fingerprints andverify the identity card and fingerprints of the condemned individual To

ensure accuracy, they carefully cross-reference this information with relevant records and documentation Additionally, for transparency and record keeping

purposes, they capture photographs and video recordings of the entire

fingerprinting and verification procedure Finally, they will draft a reportsummarizing their findings and submit it to the Death Sentence Council.

Jn the third step, The President of the Death Sentence Execution Councilplays a pivotal role in ensuring transparency and legal adherence dunngexecutions, announces the decision to carry out the execution, the officialdecision to execute, the decision of non-appeal by the Chief Justice of theSupreme People’s Court and the decision of non-appeal by the ProcuratorGeneral of the Supreme People’s Procuracy, the decision of the Judges’Council of the Supreme People’s Court not to accept the appeal of the ChiefJustice of the Supreme People’s Court or the appeal of the Procurator General

of the Supreme’s People Procuracy, the decisions of the Presiden of the State

to reject the petition for clemency of the death penalty

And for the fourth step, the condemned person shall read the decision ontheir own Immediately after the President of the Death Sentence Execution

Council announces the decisions, the Cnminal Enforcement Police and

Judicial Support Police or the Judicial Support Guard shall have the duty tohand over the aforementioned decisions to the convicted individual for them

to read on their own In cases where the person is illiterate, does notunderstand Vietnamese or is unable to read on their own, the Death SentenceExecution Council shall designate a person to read or interpret the

aforementioned decisions for them.

In the fifth step is the execution of the sentence Upon the order of the

President of the Execution Council, specialized personnel from the

provincial-level criminal execution agency, as well as the regional-level military district cnmunal execution agency, are designated to carry out the

execution and report the result back to the President of the Execution Council.Forensic doctors are designated to determine the condition of the individual

who has been subject to capital punishment and report the findings to the

Council

Jn the sixth step, the Death Sentence Execution Council drafts a record of

the execution of the sentence and reports on the process and results of the

execution to the Supreme People’s Court, the Supreme People’s Procuracy

and the criminal execution management authonty.

The seventh step, custody of the deceased body and burial arrangements.The provincial-level agency is responsible for the custody of the deceasedbody, organizing the burial and creating a burial site plan for the individual

who has been subjected to capital punishment.

The final step, notification of the convicted person’s family Within 03working days from the date of the execution, the provincial-level CriminalEnforcement Police Agency or the military-level Criminal EnforcementPolice Agency shall notify the family of the executed person, in cases wherethe family has submitted a request to receive the body of the person executed

by capital punishment While capital punishment remains a legally sanctioned

practice in Vietnam, the emphasis on procedural faimess and respect for

human rights extends to considerations after execution This includes ensuringdignified and respectful treatment of the deceased individual’s remains, even

in the context ofa criminal sentence

In addition there also thee procedures in case ofa stay of execution if theperson sentenced to death falls into one of the cases specified in Article 81,Clause 1 of the 2019 Vietnam Cnminal Enforcement Law

The first step, when deciding to postpone the execution of the death

sentence, the Death Sentence Execution Council must prepare a record thatclearly states the date, time, month, year and location of the execution; thenames, positions, and titles of the Council members and the reason forpostponing the execution That record of postponement must be signed by allmembers of the Council and kept in the files of the death penalty execution It

must also be reported back to the Chief Judge of the Supreme People’s Court

who issued the execution order, the Chief Prosecutor of the provincial-level

People’s Procuracy, the Chief Prosecutor of the military district People’sProcuracy, the provincial-level criminal execution agency and theregional-level military district criminal execution agency *

Jn the second step, according to Article 81, clause 3 of the 2019 VietnamCriminal Enforcement Law, the law enforcement officers responsible forcriminal execution and legal support or the Legal Support Guard assist in thetransfer and handover of the individual whose execution of the death penaltyhas been postponed to a temporary detention facility for continued custody

And on the final step, in cases where the execution has been postponed

due to uncontrollable or objective obstacles, or when the individual sentenced

to death provides new information about the crime immediately before theexecution, and the reason for postponement no longer applies, the Chief Judge

of the Court issues a decision to proceed with the execution, requiring theExecution Council to continue the execution process If there is a change in

the members of the Execution Council, the Chief Judge of the Court who

issued the execution order decides to either change the members of theCouncil or establish a new Death Sentence Execution Council.*”

2.1.4 Provisions on methods of execution in capital punishment inVietnamese criminal law

Before 2010, the primary method of capital punishment in Vietnam wasthe firing squad However, evolving global perspectives on human rights andhumanitarianism led to the need for a more humane approach to execution.The 2010 Vietnam Criminal Enforcement Law marked a significant turningpoint Based on an evaluation of execution methods employed in othercountries, considering factors such as effectiveness, cost and humaneness,

Vietnam decided to adopt the lethal injection method This change was

officially implemented in the 2010 and also 2019 Vietnam CriminalEnforcement Laws

* Artick $1.2, Vienwm Criminal Enforcement Law 2019.

© Artick $14, Vienwm Criminal Enforcement Law 2019.

Lethal injection is considered a progressive and humane method, as it

minimizes pain for the condemned individual and reduces psychological

stress for those involved in the execution process*® Nguyen Van Hung”, 21years old, residing in Thach That district is likely become the most “famous”death row inmate in the history of the Cau Nga Execution Ground when onJune 24, 2011, he was the last person to be executed by firing squad On thatday, stepped onto the legal stage, the rain poured down heavily from the sky

He slowly emerged from the specialized vehicle, the 21 years old “death man walking” appeared quite calm, requesting to smoke a cigarette before “leaning

against the pole’ And Nguyen Anh Tuan*!, 27 years old, a native of MeLinh, Ha Noi was the first death row inmate in the country to be executed bylethal injection at Detention Camp No 1, Hanoi Municipal Police Tuan wassentenced to death by the Hanoi Municipal Peoples’ Court for the charges of

“murder” and “robbery” on January 20, 2010

According to Article 82, clause | of the 2019 Law on the Execution ofCriminal Judgements, currently in Vietnam, there is only one method ofcatrying out the death penalty, which is by lethal injection The process ofadministering a lethal injection is regulated by the Goverment In addition tothis, on Apnl 8, 2020, the Govemment of Vietnam issued Decree No

4+ Tayen Blum (2023), How is the death penalty regulated in Vietuonese Law?, Form of the Veto Youth Union, avaible at bttps:/Alvehoin miup-but-viet sam -cury-dinhra-sno-ve-hinh-phut-uhinh- 185230705112127741 hie, accessed on 4 February 202+.

” Inmidhae 2008, Hing left his home andi begm wandering With no money, he conceived the atta af robbing a motorbike taxi doer A few days later, amed with a machete, Hing hired a driver to take him to Flux Tho distxt Timoi Upon reaching a field in Lien Hếp commute, Hing braniished the machete, causing the victia to pan end flee Deteminedto caxy out the henious act, Hing pursued end inflictedthree merciless stabs, ruthlessly taking the life of the IMocetmotabike teci dover.

“2 Anh Tm (2013), Memories of the Last Death Row ñmmafe to be executed by fring squad, Vitrum Bepress Online Newspiper, avaible at bitps:/imequess neticy-uc-ve-te-te-cuvi-cng:binax bar 2862080 hm} accessed ơn 4 Febuary 2034.

5! Nguyen Anh Tom end his accomplice Nguyên Hai Dom commited a henious cre that outraged public opinion at thattme Around Eetruey 2009, Nguyen Hài Dom and Nguyen Anh Tum Deceese accuainted with Ms Bui Thi Nguyet.

“After several outings, Tom leemed that Ms, Neuyet often Kent a significent amour of money auher wallet To cary ot ther phn Tm and Hom strategzzed and threatered Ms Nguryet woth a loufe after they brought flowers to win over the

gx affection md askedher to gp out for a coffee They tied her hand end tock her phone along withher moneys After a val, Ms Nguryet requested to remove the restrazs ancl at vduch pot Hing unexpectedly approached fram behind and stabbed her nthe back.

*> Nguyen Quyet (2013), The first death row inomate in the connty to be executed by lethal injection, The Labourer Newspaper, available at

Jind com muthoi-sutrong mmc ineny-6-8 tu-tu- dane tien-carmmoc-bi tiem tine ddoc-20130805040359604 him,

accessed an $ February 2024.