MINISTRY OF EDUCATION AND TRAINING MINISTRY OF JUSTICE HANOI LAW UNIVERSITY HOANG HAI YEN PRIMARY PUNISHMENTS IN THE VIETNAMESE PENAL CODE IN COMPARISON WITH THE PENAL CODES OF SOME CO
Trang 1MINISTRY OF EDUCATION AND TRAINING MINISTRY OF JUSTICE
HANOI LAW UNIVERSITY
HOANG HAI YEN
PRIMARY PUNISHMENTS IN THE VIETNAMESE PENAL CODE IN COMPARISON WITH THE PENAL CODES OF SOME COUNTRIES IN THE WORLD
Major: Criminal and criminal procedure law
Code: 9.38.01.04
SUMMARY OF DOCTORAL THESIS ON LAW
Hanoi, 2024
Trang 2HEADING
1 Rationale
In criminal law, punishments have been considered as the most severe coercive measure, depriving or limiting the rights and interests of the offender, thereby expressing general and specific prevention purposes In particular, primary punishments play an important and decisive role
Comparing law to improve legal provisions on primary punishments in Vietnam is completely consistent with the Communist Party of Vietnam's guidelines on building a rule-of-law state, judicial reform, and international integration At the same time, it is extremely necessary to overcome the limitations in the provisions of the Vietnamese Penal Code; which provides a comprehensive, systematic study from a comparative perspective on primary punishments as well as further improvements in theory and practical law regarding primary punishments and related issues
Research on punishments generally and primary ones particularly has received attention in recent times Although there has been much-related research, they are still not comprehensive in many aspects; the study of primary punishments from a comparative law perspective is still incomplete It is necessary to continue to study primary punishments in the Vietnamese Penal Code in a comprehensive comparison with the Criminal Code of some countries around
the world Therefore, the author chooses the thesis "Primary
punishments in the Vietnamese Penal Code in comparison with the Penal Codes of some countries in the world" as an
essential matter both in theoretical and practical perspectives
2 Purposes and missions of the thesis
2.1 Purposes
The thesis’s purpose is to make suggestions and recommendations to improve the regulations of the Vietnamese Penal Code on primary punishments based on the results of analysis
Trang 3and evaluation of the provisions of the 2015 Penal Code (amended and supplemented in 2017) The basis for evaluating the provisions
of the 2015 Penal Code on primary punishments includes results of comparison with the theory of primary punishments and results of comparing the provisions on primary punishments with the Criminal Code of some countries in the world.
2.2 Missions
The thesis performs several missions including 1) a Comparative study of the theoretical system of primary punishments in the Vietnamese and some nations’ criminal justice to clarify issues like its concept, characteristics, purpose, and role; 2) Clarifying the content and evaluating the primary punishments provisions in the current Vietnamese Penal Code compared with the criminal laws of the French Republic, the Federal Republic of Germany, China, the United States, the United Kingdom, Iraq, and Indonesia, thereby objectively and systematically commenting on the provisions of the Penal Code
of some countries around the world, finding valuable and appropriate legislative experiences which can be referenced for Vietnam; 3) Identifying the pros and cons of the Vietnamese Penal Code’s provisions on primary punishments The thesis also proposes the amendment and supplementment of provisions related to primary punishments in the 2015 Penal Code
3 Objects and scope of the thesis
3.1 Objects
The research objects of the thesis are the main scientific perspectives on punishments; regulations of the 2015 Penal Code (amended and supplemented in 2017) on primary punishments in the General Part as well as relevant articles and punishment frameworks in the Crimes Part of this Code related
to primary punishments; and the provisions of the Criminal Code of some countries in the world from a comparative perspective with the provisions of the Vietnamese one The selected countries are representatives of typical legal systems
Trang 4in the world; have a certain influence on Vietnamese criminal law in terms of legislative history; or have the same development and legal reform trends as Vietnam; as well as have certain similarities in culture and society due to the same geographical location
3.2 Scope
The research scope of the thesis is theoretical issues and regulations on primary punishments for people/individuals (natural persons) who commit crimes The thesis does not research people under 18 years old and legal persons who commit crimes
4 Theoretical basis, research questions, and research hypotheses of the thesis
The thesis is based on theories about legal models of countries around the world, and domestic and international scientific arguments about the punishments’ nature and purpose
The thesis focuses on answering the following research questions:
- What are the punishments? What is its nature and purpose? What is the role of punishments in criminal measures? What are the criteria for distinguishing punishments from non-penal criminal measures?
- What are the primary punishments? What is its role in the penal system? What is the relationship between primary punishments and additional punishments in the penal system? What are the criteria for classifying primary punishment groups?
- Is the theory of punishments and primary punishments
in Vietnamese criminal law consistent with the theory that matters in criminal law of some countries in the world?
- What are the similarities and differences in the provisions on primary punishments in the Vietnamese Penal Code with the Criminal Codes of some countries in the world? What basis do these similarities and differences come from? What legislative experiences are suitable for Vietnam?
Trang 5- What are the pros and cons of provisions on primary punishments in the Vietnamese Penal Code? What theoretical requirements should be met in perfecting the Vietnamese Penal Code on primary punishments and what experiences should be drawn from the Penal Codes of some countries in the world?
The thesis proves the correctness of the hypothesis:
- Sentence is the most severe coercive criminal measure with general and particular preventive purposes; in which, the purpose, nature, and method of prevention are important criteria to distinguish it from non-punitive criminal measures
- Primary punishments and additional punishments are important parts of the punishment system Which, primary punishments have basic content commensurate with the nature and level of danger to society of the crime to get general and particular preventive purposes, as well as can be classified into many groups based on different criteria
- Despite some similarities in theory and regulations on primary punishments in the Vietnamese penal system and some countries around the world, there are also significant differences stemming from differences in legal systems, legislative history, and economic, political, and socio-political situations
- Regulations on primary punishments in the Vietnamese Penal Code have originated from the theory of the concept, characteristics, and purpose of primary punishments but there are still some provisions that are not consistent with the theoretical basis
- Legislative techniques in Vietnamese criminal law regarding primary punishments still have many shortcomings Comparative research with the laws of some countries around the world is an important basis for perfecting our criminal law
in terms of primary punishments
5 Approach to the research problem and research method of thesis
5.1 Approach to research problem
Trang 6The thesis continues to solve theoretical issues that are still left open about the primary punishments with a more open and multi-dimensional approach, from clarifying the relationship between punishments and non-penal criminal measures to clarifying the correlation between primary punishments and additional ones
5.2 Research method
Based on the dialectical materialist and historical materialist methodology, the thesis uses the following scientific research methods: method of analyzing and explaining written law, method of comparing jurisprudence, method of synthetic analysis, systematization method, and historical method
6 Scientific and practical contributions of the thesis
Through comprehensive and systematic research, the thesis content has the following contributions:
Theoretically: The thesis further clarifies the theoretical basis for primary punishments in Vietnamese criminal law and presents results of comparing the laws between the Vietnamese Penal Code and the criminal laws of studied countries in terms
of primary punishments in a systematic and specific way The research results of the thesis will be an overall assessment of the content as well as legislative techniques for the main penalty regulations in the 2015 Penal Code (amended and supplemented in 2017)
Practically: The thesis’s proposals and recommendations on amending and supplementing the regulations of the Vietnamese Penal Code are the orientation for the construction and improvement of criminal law regulations on primary punishments to ensure the effectiveness
of punishments in practice
7 The structure of the thesis
In addition to the Introduction, Overview of research works related to the thesis, Conclusion, and References, the
thesis consists of 3 Chapters
Trang 7OVERVIEW OF RESEARCH WORKS
RELATED TO THE THESIS
1 Domestic research
Most domestic research is concentrated into the following groups: 1) Research on general theoretical issues about punishments and the Vietnamese punishment system; 2) Research on primary punishments or additional punishments in Vietnamese criminal law; 3) Research on each specific primary punishment in the Vietnamese punishment system; 4) Research
on perfecting the provisions of the Penal Code and solutions to improve the effectiveness of applying each specific primary punishments; 5) Research on foreign laws on punishments as references to perfect the provisions of the Vietnamese Penal Code; 6) Research on comparing punishments in general and primary punishments in particular between the Vietnamese Penal Code and the Penal Code of some countries around the world
2 Foreign research
Foreign research related to the thesis topic is also concentrated into two groups: 1) Research on general theoretical issues about punishments and the sentencing system; and 2) Research on each specific popular punishment
in international law as well as each country’s laws
3 Evaluation of the research results of scientific works related to the thesis topic
Many domestic studies have shown basic agreement on the concept and characteristics of punishments; and have clearly and fully clarified the structure and characteristics of the punishment system, the relationship between punishments, and the relationship between primary punishments and additional ones Research related to each specific primary
Trang 8punishment has clarified the concept, nature, characteristics, and scope of application of each type of punishment.However, there have not been many comprehensive studies on both the theory of punishments and the regulations of foreign criminal laws Although from a comparative law perspective, there have been a number of typical works pointing out the similarities and differences in the theory and regulations of the Vietnamese punishment system with some nations in the world regarding punishments generally and primary punishments particularly, there has been no overall research on theory and regulations of the primary punishments in the Vietnamese Penal Code compared to the laws of some of the studied countries according
to different legal systems in the world
Regarding foreign research, although the authors did not specifically research the relationship between punishments and non-penal criminal measures, they initially raised the issue that there have been some conflicting debates on this issue At the same time, there are only a few punishments that have been studied in-depth and have an impact on the research scope of more than one country like the death penalty, life imprisonment, and fines
4 Further issues that the thesis needs to continue to solve
- The thesis needs to research the purpose of punishments
in an expanded direction to answer the question: In addition to the purposes of punishments that have been researched, can punishments have other purposes to be suitable for the fight against crime? crime?
- Studying to clarify the characteristics of punishments
about non-penal criminal measures; the theory of punishments and non-penal criminal measures in Vietnamese criminal law
Trang 9with a comparative approach with the theory of criminal law in some nations in the world
- Clarifying theoretical issues about primary punishments and their role, the relationship between primary punishments and additional punishments in the punishment system In addition, the thesis also researches to clarify the views and perceptions in criminal law science in some countries around the world regarding primary punishments
- Researching to clarify the criteria and purposes of classifying primary punishments from a comparative perspective with the laws of the researched nations
- Continuing to comment and research to point out more shortcomings and limitations in the provisions of the Vietnamese Penal Code on primary punishments and explain those shortcomings and limitations by both theory and legislative techniques
- Comparing primary punishments in the Vietnamese Penal Code with the Criminal Codes of some nations in the world, thereby finding reasonable and unreasonable points in the primary punishment provisions of those Criminal Codes and making proposals for further improvement of the Vietnamese Penal Code
Trang 10RESEARCH RESULTS
Chapter 1 PRIMARY SENTENCES AND COMPARISON
OF PROVISIONS ON PRIMARY SENTENCES FROM THEORETICAL PERSPECTIVE
1.1 Sentence - one of the criminal measures
1.1.1 Concept and connotation of criminal measures
In a broad sense, any measure recognized and regulated
by criminal law is a criminal measure Measures related to the execution of punishments, pardons, and exemptions should also be considered criminal measures when they are independently regulated by the criminal law in addition to penalties
In a narrow sense, criminal measures are not all
measures recognized and regulated by criminal law but are a form of expression of penal liability or a form of legal liability Only measures specified and approved by the criminal law to concretize legal liability are called criminal measures
The author adopts the viewpoint on the purpose of legal liability and the narrow view on criminal measures In terms of purpose, criminal measures aim to fight and prevent crime and help distinguish criminal measures from other coercive measures recognized by criminal law Therefore, the thesis will approach the concept of criminal measures in a narrow sense
In terms of characteristics, criminal measures are coercive by the State when they are guaranteed by the State to
be effective and have the highest level of coercion compared to other legal measures
In terms of content, criminal measures contain content that deprives or limits the legal rights and interests of the subject being applied This also stems from the State's coercive nature of criminal measures
Trang 111.1.2 Characteristics of punishments
Each theory has different explanations for the
characteristics of punishments The doctrine of absolute
punishment holds that a punishment has only one purpose to
punish the offender The theory of relative punishment holds
that the core purpose of punishment is not to punish the offender but to promote the preventive nature of the
punishment The association doctrine holds that punishment
not only has the purpose of punishment but also has the purpose of preventing crime
The concept of crime in Vietnamese criminal law has been often based on the legal and content characteristics of the punishments Specifically:
Regarding legal characteristics, a punishment is “the
State's most severe coercive measure”, only the Court can apply the punishment, and the applied subject is offenders only
Regarding content characteristics, there are currently
two opposing views on the nature and purpose of the punishment:
The first group of viewpoints: The content of the
punishment is the expression of legal liability, so the purpose
of the punishment is to “deprive” or “restrict” the convicted person’s rights and freedoms The deprivation or restriction of such rights and freedoms must be specifically recognized in the Penal Code and clearly expressed in the legally effective criminal judgment of the Court
The second group of views: Depriving or restricting the
rights and interests of offenders is not the purpose of the punishment but its content The purpose of punishment is to prevent crime in two directions with different mechanisms and content: Preventing the offenders from committing a crime
Trang 12again and preventing others from committing a crime The author agrees with the second point of view
Regarding the purpose characteristics, the Vietnamese
criminal law science is the acquisition and inheritance of the association doctrine However, there have been different
answers in each study to the question: Does punishment have
a punitive purpose? There are two groups of viewpoints:
Sentence has a punitive purpose and Sentence has the purpose
of reforming and educating offenders to become useful people for society; new offender prevention and general prevention education According to the author, the above views all agree
on the inevitable existence of “punishment” when applying
punishments to offenders
The author defines the concept of punishment (for
offenders) as follows: Sentence is the most severe coercive
measure of the State, decided by the Court to apply with the content of deprivation or restriction rights and interests of offenders to deter, educate, reforming them, and preventing new crimes
1.1.3 Distinguishing punishment from non-penal criminal measures
Sentences and non-penal criminal measures have similarities: (1) Both are criminal measures and are all manifestations/forms of legal liability; (2) They are the measures prescribed in the Penal Code; (3) They are measures that are only applied to offenders; (4) Both have specific and general prevention purposes
There are also differences between punishments and non-penal criminal measures such as: 1) In terms of purpose, nature, and prevention methods, non-penal criminal measures are direct and broader in nature than punishments; 2) Sentence needs to be commensurate with the nature and level of danger