Các tội xâm phạm nhân phẩm, danh dự của con người theo pháp luật hình sự Việt Nam (1)

Header Page of 166 VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES VU HAI ANH OFFENSES AGAINST THE DIGNITY AND HONOR OF THE PEOPLE UNDER VIET NAM PENAL CODE Major: Criminal law and criminal procedure Code: 62 38 01 04 ABSTRACT OF JURIS DOCTOR'S THESIS HANOI - 2017 Footer Page of 166 Header Page of 166 The works is completed at: Vietnam Academy of Social Sciences Graduate Academy of Social Sciences Scientific Instructor: Ph.D Tran Van Do Counter - argument 1: Ph.D Tran Dinh Nha Counter argument 2: Ph.D Hoang Thi Minh Son Counter - argument 3: D Nguyen Van Hien The thesis shall be protected in front of Examination Council of Academy level at at……… hour…………minute, date………month……….year…… The thesis can be available at library: - Vietnam National Library - Library of Vietnam Academy of Social Sciences LIST OF PUBLISHED SCIENTIFIC WORKS Footer Page of 166 Header Page of 166 Vu Hai Anh (2015), Some entanglements in judgment of raping childrens who are less than 13 and these case are incestuous Magazine of law occupication, No.: 01, page 43 - 47 Vu Hai Anh (2016), Some new points of Criminal Code 2015 about sexual crime, Magazine of law occupication, No.: 03, pages 32 - 36 Vu Hai Anh (2016), Some theory matters regulated on making intercourse or having sex with children who are from 13 to under 16, Investigation magazine, No.: 17, pages 30 - 34 Vu Hai Anh (2016), New points of the crimes infringing upon human dignity and honour under the 2015 Criminal Code, Jurisprudence journal, Special issue on the 2015 Criminal code, pages Footer Page of 166 Header Page of 166 INTRODUCTION The urgency of the subject Crimes against human dignity are dangerous acts to society, which not only infringe healthy growth of people, but also mentally hurt victims and their family These criminal behaviors have negative impacts on community by indignant and controversial cases Recently, the nature and extent of human dignity violations are becoming more and more serious which implies the moral degradation of some groups of people, affects on community rules, ruins morality and becomes one of the most-concerned issues in the society Regulations of Penal Code in 1999 are legal basis in tackling cases of human dignity violation Yet, there is some inadequatenesses of Penal Code that leads to difficults and obstacles in related regulation application Therefore, our current society has urgently required to undertake scientfically, wholly and systematically theoretic and practical studies in which crimes against human dignity are researched in terms of legal signs, insufficiences in judgement procedure and relavant causes, then solutions shall be built to complete legal regulations and they can be applied effectively Consequently, the author has chosen the thesis “Offenses against the dignity and honor of the people under Vietnam penal code” to carry out the project Purpose and duty 2.1 Purpose of the project On the basis of clarifying theoretical and legal aspects of crimes against human dignity and the status of applying related regulations from 2005 to 2015, the project is aimed to propose solutions which ensure proper application of crimes against human dignity-related regulations 2.2 Duty of the project In order to reach all the forementioned purposes, the project is focused on: analysing theoretical aspects concerned to crimes against human dignity, analysing related regulations in Penal Code of Vietnam, revising application of related regulations and giving out solutions for proper application of these regulations Object and scope 3.1 Object of the project Footer Page of 166 Header Page of 166 The thesis is focused on researching scientific viewpoints about legal signs of crimes against human dignity, related regulations of Vietnam, practical application of these regulations from 2005 to 2015 3.2 Scope of the study The study shall be carried out based on Penal Code and Code of Crimial procedure during the period from 2005 to 2015 all over Vietnam Methodology and research methods The project applies dialectical materialism and historical materialism of Marxism – Leninism, Ho Chi Minh Ideology, views of our Party and the Government related to crimes and penalties and the fight against crimes as the methodology of the research The project use varied method in research, such as analysis, synthesis, statistics, diagrammation and comparison New scientific contribution of the project For approach viewpoint: Based on the dialetics of Marxist philosophy, the project conduct studying the thesis by variety of approach methods and being focused on mutlisectoral approach (in sociological legal view) and right protection-based approach For method: All the methods used in this project as mentioned at section of introduction part are mutual supportive and independent which enable to clarify theoretical and legal aspects on crimes against human dignity These methods are applied to revise practical application of related legal regulations then promote solutions for proper application of these regulations in the next time In general, the project is a profound study that researches crimes against human dignity all over the country The project has been built a system of theory and law concerned to crimes against human dignity In order to make this system become a useful weapon in the nexty time, the projects has been established solutions for proper, scientific-based and realizable application of these regulations Scientific and practical significancies of the project - The project has clarified theoretical aspects and analysed evidently regulations in crimial laws of Vietnam concerned to crimes against human dignity Regulations in Penal Code are perceived in varied ways (multisectoral and Footer Page of 166 Header Page of 166 intersectoral approach) so that the role and purpose of laws are essential to human growth and protection Hence, the project may be used as lecture or reference in criminal major and related ones - The project may be used as reference for legislative agencies, social groups and citizens join in discussing to amend or append to regulations in Penal Code and Criminal Judgement Law of Vietnam - The project has supplied theoretical and pratical basis for legal application as well solutions for proper application of regulations related to crimes against human dignity Consequently, the results of the project may be used as a perception unifying mean of legal regulations concerned to crimes against human dignity that contributes in resolving weaknesses and questions of practical application Therefore, it helps to increase effect of anti-crime mission especially crimes against human dignity This is the first doctorally scientific research that has approached wholly and systematically crimes against human dignity Abstract Introduction Chapter General research situation; Chapter Theoretical and historical aspects of crimes against human dignity; Chapter Regulations of the Penal law Code in 1999 and the practical application of the provisions on the infringement dignity and honor of human; Chapter Solutions for proper application of regulations related to crimes against human dignity; Conclusion Footer Page of 166 Header Page of 166 CHAPTER GENERAL RESEARCH SITUATION There has been many research researches concerned to crimes against human dignity so far 1.1 Domestic research situation Researches engaged in general theoretical aspects about crimes against human dignity: The author of the projects has refered to criminal law lectures, Scientific reviews of Penal Code, jurisprudence essays and articles The authors of these documents have analysed and clarified theoretical aspects of criminal law, criminal issues, penalties which has become basis to perceive all of the related regulations Besides, theoretical and political aspects of human rights and legal mechanism for protecting human rights in the world and Vietnam have been comprehended These researches have brought practical value and benefit during the completion of the project Researches engaged in practical application of regulations related to crime against human dignity: All of the refered researches have enabled the author to create a total perspective of application of regulations related to crime against human dignity Not only having analysed the situation of application, the authors have analysed and clarified causes that lead to difficults to application, such as legal weaknesses, poor qualification of related staff Researches engaged in solutions for completion of regulations related to crime against human dignity: The thesis is aimed to give out solutions for proper application of regulations related to crime against human dignity Hence, the project is based on issued scientific researches concerned to solutions for proper application of regulations related to crime against human dignity In general, forementioned researchess have clarified many aspects related to crimes against human dignity These shall be documents that enable the authors with new perception in crimes against human dignity and is beneficial to the project 1.2 Foreign research situation To uphold successfully a doctoral thesis, it is required to master domestic research situation as well as foreign research situation in order to compare, contrast among them and create theretical and practical basis for related aspects of the project Footer Page of 166 Header Page of 166 Thre has been a great deal of researches related to crime against human dignity in the world The author has refered to those researches which are involved in criminal law theory, human rights namely thay human dignity, legal mechanism for human rights protection including moral rights Therefore, it can be stated that not only in Vietnam, crimes against human dignity is a specially concerned subject of researchers in the world Approaching these researchess, the author of the project has got a broader perspective of crime against human dignity 1.3 Review of thesis-related research situation Through researching domestic and worldwide scientific studies related to crime against human dignity, the author finds that the researches are conducted in varied view and extend in term of some groups of related crimes Nevertheless, there are some divergent points inside these researches Thus the author intends to acquire the advantages and handle unresearched aspects or insufficient and too general aspects Sub-conclusion of chapter Actually, crimes against human dignity is one of the most popular crimes There has been many researchers leading researches related to this subject in many aspects all over Vietnam and the world Footer Page of 166 Header Page of 166 CHAPTER THEORETICAL AND HISTORICAL ASPECTS OF CRIMES AGAINST HUMAN DIGNITY; Dignity is human worth and the appreciation of society towards a person based on his mind and morality Human dignity is sacred and precious that no one has right to abuse or hurt 2.1 Concept of crimes against human dignity 2.1.1 Dignity and honor of the people Every person living in society have different rights, one of which is a personal right According to law, moral rights are civil rights, inherent to each individual and can not be transferred to another person, namely: honor, dignity, reputation and honor Dignity are two different moral categories but have mutual relationships Dignity as human values, and honor is the result of the process of building and protecting human dignity It is the elements that make up the value of a human being 2.1.2 The offenses against the dignity and honor of the people Human dignity violation is appeared in different behaviors Regulations specified in Penal Code have become legal basis for struggle against seriour behaviors against human dignity Based on the concept of crime defined at Article of Penal Code: “Crimes against human dignity are acts dangerous to the society prescribed in the Penal Code, committed intentionally or unintentionally by a person having the penal liability capacity, infringing upon dignity of other people” 2.2 Legal signs of crimes against human dignity 2.2.1 Object of crime Object of crime is social relationships that are protected by Penal Code and infringed by criminal behaviors Object of crimes against human dignity is human rights, particularly human dignity 2.2.2 Objectively of the crime Objectively of the crime is present outside of the crime, including the expression of crime occurs or exists outside the objective world, which is the objective behavior of crime; dangerous consequences for society; a causal relationship between human behavior and the objective of the criminal consequences dangerous to society; the other symbols of the objective of the crime as a tool and Footer Page of 166 Header Page 10 of 166 means of crime, crime time and place of crime The objective of the offenses against the dignity and honor of man is characterized by objective behavior of crime It could be the act of dignity and honor of others; acts of slander; acts of sexual abuse and acts of human trafficking 2.2.3 Subject of crime Subject of crime is person having the penal liability capacity, reaching legal age and conducting specific criminal act Those criminal who conducts sex crime such as rape and child rape is so far determined as specially sexual criminal, in which men are regarded as subject and women are regarded as accomplice 2.2.4 Subjective of crime Subjective of crime is psychological processes inside of offenders include: bug, engines and criminal purpose The fault of the offender in the group trespassing dignity and honor of the people are directly willful misconduct The offenders are aware of their behavior is risky behavior for society but because the motives and purposes which are keen to implement the behavior 2.3 Generally historical legislation related to crimes against human dignity 2.3.1 From after August 1945 Revolution to before Penal Code in 1985 taken legal effect After August revolution 1945 to the before Penal Code in 1985 taken legal effect Since the success of the August Revolution to the time of the first codification, our State has issued many legal documents punish criminal offenses in the new social conditions, including many provisions relating to the crimes groups dignity and honor of the people Every year, the People's Court issued the final report in order to draw on experience In 1967, a document with important implications in the treatment of offenses against the dignity and honor of the people (but only focused about sexual crimes) were summarized and guidance Map way rape trials and other crimes of sexual terms (number 329-HS2 May 11, 1967) of the Supreme people's court This summary description of the legal signs of crime and mentioned some aggravating or extenuating the penalty materialized 1975 reunification In order to resolve the legal basis of the act causing immediate loss of value of social security, dated 15.03.1976 Council Provisional Footer Page 10 of 166 10 Header Page 13 of 166 circumstances On the basis of refering to legislative experinces of some countries and studying Vietnam criminal legislation history related to crimes against human dignity, it is helpful to complete current relevant legal regulations Footer Page 13 of 166 11 Header Page 14 of 166 CHAPTER REGULATIONS OF THE PENAL LAW CODE IN 1999 AND THE PRACTICAL APPLICATION OF THE PROVISIONS ON THE INFRINGEMENT DIGNITY AND HONOR OF HUMAN To be able tostudy comprehensively and overall the matters of the researched topics, the thesis authors defineto analyze the provisions of the applicable Penal Code to the offenses against the dignity and honor of the people, let it show the legal mechanisms of human rights in protection, that is relate to the personal rights, dignity and honor of the people by the criminal law 3.1 The offense of violating the dignity and honor of the human according to the Criminal Code in 1999 3.1.1 The circumstances of the crime of violating the dignity and honor of the human The Penal Code in 1999, the offense of violating human dignity, human honor are regulated inChapter XII, the social crimes group that is violated to the life, health, dignity and honor of the people, included ten rules: from Articles 111 to Article 116 and Articles 119 to 122 of the all Articles in Penal Code 3.1.1.1 The Groups of sexual crimes The Groups of sexual crimes of the Penal Code in 1999 included six law articles and six counts;they are: the guilty of sexual assault (Article 111), the crime of child rape (Article 112), the crime of rape (Article 113), the crime of rape with children (Article 114), sexual intercourse with child crime (Article 115) and salacious crimes against children (Article 116) In general, these criminals are built by lawmakers as CTTP form Therefore, the circumstances of this criminal offense are stipulated in the Penal Code in 1999, related to the behavior of the criminal objective Overall, the objective behavior of this crime is defined as the following behavior forms: Firstly, the act of sexual intercourse with the victim: Although the Penal Code in 1999 does not describe how is the mating behavior, actually in our country so far, in theory and in practice, are admitted the copulatory behavior according to the instructions of summary and guide to judge the rape and the other crimes about the sexual side No HS2 329 dated 05 May 11 1967 at the Supreme people's court Footer Page 14 of 166 12 Header Page 15 of 166 Secondly, the lewd acts against the children: This is the circumstance of the salacious crimes against children (the only crime in the criminal group for no committing acts of sexual intercourse) This behavior is interpreted as sexual acts, not as the act of copulation These behaviorsare the characteristics ofsatisfying or provoking, stimulating sexual desire Thirdly, about the criminal tricks: the tricks of sexual crimes are varied that is depended on the kinds of crime Overall, the crimial group has some tricks such as: violence, threatening to violate, taking advantage of the situation can not be the victim of self-defense, threat or promise to the people who depended on them or in the context of deprivation stituation forced them to have sexual intercourse reluctantly or the others (like abusing woman in a state incapable of expressing the corrected spirit properly, or abusing the woman is intoxicated or mentally ill ) Be diferente from the above tricks, Only the crimes intercourse with children, due to theobjectively criminal behavior is a voluntary sexual intercourse,The offenders don’t need to useany tricks to carry out their criminal hostilities 3.1.1.2 The other crimes violate the dignity and honor of the people The other crimes violatethe dignity and honor of the people in the Penal Code in 1999 include four law articles such as: human trafficking (Article 119); trafficking, fraudulently child exchanging or child usurping (Article 120); humiliating others (Article 121) and slander (Article 122) Similar to the sexual crimes, these criminals are also built by lawmakersas the CTTP forms so the criminalcircumstancesof the offenses areprescribed in the Criminal Code in 1999 that is related to the objectivly criminal behaviors On the overall, the objective behavior of this crime is included the following forms of behavior: Firstly, the human trafficking: These are the action of using money or the other means of payment such as gold, foreign currency to traffick the human as a commodity (if trafficked human’s age is over 16 years or more, this behavior will constitute the crime of human trafficking, if people are trafficked under 16 years of age, this behavior constitutes child trafficking) Secondly, fraudulently child exchanging or child usurping: fraudulently child exchanging is understood as the action of duplicity these kids with the others whose Footer Page 15 of 166 13 Header Page 16 of 166 parents or both of a child don’t not know The child usurpingis understood as the action of Illicit child separation from the management of the family or legal managers or to establish it for yourself or others by different tricks like stealthy, deception or using of violence Thirdly, the nature behavior seriouslyviolate the human’s dignity and honor: These forms of expression of this behavior are varied, may be abused languages, humiliating, disdaining tomake the human’s honor lower, dignity as verbal abuse, ridicule or maybe the nature infamous gestures or attitude insult to the dignity and honor of others seriously The fourth, slanderous behavior: theslander is defined under three types Firstly,the behavior is fabricated to offend the honor or to cause damage to the rights and legitimate utility of others Secondly, the spreading the information that knows to be fabricated to offend the honor or to cause the damage to the rights and legitimate utility of others Thirdly behavior is another fabricated crime and accused them before the state agencies 3.1.2 The frame of aggravating circumstance of the crimes that violates the human’s dignity and honor The offenses violate the human’s dignity and honor that is regulated from Article 111 to Article 116, and fromArticle 119 to Article 122of the Penal Code in 1999 3.1.2.1 The sexual crimes In general, the frame of the aggravating circumstances of sexual crime groups are similar, including the specific circumstances: the organized crimes; be guilty of whom is responsible care, educated and treated by offenders, many people rape a person or the persons raped a person; they repeat the infringements frequently; incestuous nature; make the victimpregnant; be bad effect to thevictim’s health with an infirmity rate from 31% to over 60%; relapse dangerously; to cause the harm of thevictim’s health with an infirmity rate more than 61%; had HIV who still sin; cause the victim died or make them killthemselves; raped multiple times and lot of persons; causing serious consequences (serious consequences or especially serious consequences) 3.1.2.2 The other crimes infringing the human’s dignity and honor Footer Page 16 of 166 14 Header Page 17 of 166 The other crimes infringing the human’s dignity and honor of the Penal Code in 1999 include the four articlessuch as: human trafficking (Article 119); trafficking, fraudulently child exchanging or child usurping (Article 120); humiliating others (Article 121) and slander (Article 122) In general, In general, the frame of the aggravating circumstances of sexual crime groups are similar, including the specific circumstances: on the purpose of prostitution / to use as the prostituted purposes in organization; in a professional nature; to take the body parts of the victims to the foreign countries; for many people; they repeat the infringements frequently; for despicable motivation; to be used for inhuman purposes; relapse dangerously to cause serious consequences; repeated infringements many times; for many people; take the advance their positions and powers; for the people who is on their duty; who teaches, takes care and healsthemselves (For grandparents, fathers, mothers, who teaches and educates,takes care and healsfor themselves) 3.1.3 Penalties for the guilities to the human’s dignity and honor The guilities to the human’s dignity and honorare regulatedfrom Article 111 to Article 116, and from Article 119 to Article 122 of the Penal Code in 1999 3.1.3.1 Group of the sexual crimes For this crime, the popular imprisoned punishment with many different levels the lowest is six months, the highest is 20 years in prison The most severe punishment for this crime is the death for the crime of child rape In addition to death, life imprisonment is prescribed as the most severe punishment for the crime: rape, child rape The remain guilities have the penalties at lower level 3.1.3.2 The other crimeGroups infringing the human’s dignity and honor Theseoffender is generally punishment lower than the sexual offender The most severe penalty is life imprisonment prescribed for the human trafficking, trafficking, fraudulently child exchanging or child usurping The warning and reform custodial punishment is prescribed in the humiliation and slander others 3.2 Practical application of the provisions on the violation to the human’s dignity and honor To appreciate the comprehensive and practical application of the provisions on the violation to the human’s dignity and honor, the author of the thesis is based on Footer Page 17 of 166 15 Header Page 18 of 166 trial data on this crime group to study the situation of trial the crimes of the human dignity and honor 3.2.1 The trialsituation for violating the human’s dignity and honor According to statistics of the high Court from 2005 to 2015,the The People's Court system has trial 18,794adjustcatoriesfor 23,416 cases,with the violating the human’s dignity and honor When assessing the crime situation of a specific crime, we can not ignore the crime index is the comparison of the cases, the number of criminal persons that the total number of cases, and the number of culprit that occurred at the same period From the statistics of Table 13 in Appendix 1, can be seen the crime proportion ofviolating to the human’s dignity and honor from 2005 to 2015 is not high, comparision with total the cases and the number of defendants In comparision the guilitis of the human’s dignity and honor with the group of offenses against the human’s life, health, honor and dignity that show us the overviewed picture should be studied.To look at the statistics of the Supreme People's Court and to find out the number of the group crimes that is violatedthe human’s life, health, honor and dignity during 11 years, it is decreasing or increasingly in every year, but generally, it increases seemly (to see at the table 12 in appendix 1; chart 12, chart 13 in appendix 2) 3.2.2 Practicallycondemn the trespassing the human’s dignity and honor Thiscondemnation is a cognitive activity, the application of the criminal law come to achieve the truth objectively on the basis of correctness, completeness and specific circumstances of the offense was made In fact, the judge basically understand the theoretical issues about the crimes done relatively well and this activity should be the majority in the case to trial, surely the condemnation is the right people, the true crime without doing injustice to the innocent Besides, the practice of crimes cause the arising difficulties, much of this offense but the competent authorities have trial the criminal offenders wrongly and vice versa In particular, the same offense but we has the different views andthe different decisions of various crimes, mostly we focus on the problems such as wrong or inconsistent in setting condemnation or crimes of the aggravating circumstances frame; wrong or inconsistent in determining the stage of implementation of crime Footer Page 18 of 166 16 Header Page 19 of 166 3.2.3 Practicalcondemnation for the offenses against the human’s dignity and honor The penaltydecision is one of the basic period of the process of applying the law The fact of the trial during recent times for the crimes of the human’s dignity and honor that show, when thwy give the decision of the punishment, the court is always based on the crime decisions regulated in Article 45 Penal Code to make an appropriate judgment, commensurate with the nature and degree of social danger of the act However, besides the positive achievedresults, as well as the impeachment comment to apply penalties for some defendants with certain restrictions that maketheinconsistent penalties; mainly on the incorrect application of the aggravating circumstances, the criminal responsibility in Article 48 of the Penal Code to determine the punishment; the unsuitably applicable regulations is lighter than the penalty decision Article 47 of the Penal Code non-appropriately 3.2.4 The cause of the limitations and obstacles in the application of the regulation on the offenses of the human dignity and honor The application of the law regulations on the offenses against the human’s dignity and honor, mainly the condemnation and penalty decisions that have achieved the certain results, it contributes to ensure the criminal law is an effective tool to maintain social stability However, as discussed above, the practical application of the provisions of the criminal law for this group is facing some difficulties and the fixed problems The cause of the difficulties and problems that come from many different areas, but mostly due to the scholarship the following: the cause of the unreasonable provisions of the Penal Code on this criminal group; the reasons are from the instruction activity of the application of the law in non consistency, on time and comes from others, related tothe staff who apply the law, from the propaganda and popularization of laws Sub-conclusion of chapter The offenses against the human’s dignity and honor is one of the criminal groups have more complicated in recent years in our country Through practical research in thetrialcondemnnation of this crime shows that the adjudication of the crimes the human’s dignity and honor, in general,we judge the right persons, rightcriminal offense, in accordance with the legally rules, and strictly, to ensure educational purposes as well as the general criminal liability and punishment in Footer Page 19 of 166 17 Header Page 20 of 166 particular Besides, there exist some cases that has no consistency in the application of the law between the agencies and theprocedural law The main cause of these problems is due to the above-mentioned provisions of the current law on this crime group has some gaps andlimited legislative technique, it bring the different interpretations between the agencies and theprocedural law so the practical application isnon-appropriatelyamong localities Footer Page 20 of 166 18 Header Page 21 of 166 CHAPTER MEASURES TO ENSURE THE CORRECT APPLICATION OF THE PROVISIONS OF CRIMINAL LAW ON OFFENSES AGAINST THE DIGNITY AND HONOR OF THE PEOPLE 4.1 Need and direction to complete criminal law and measures to improve application efficiency of provisions of the criminal law on offenses against the dignity and honor of the people Viet Nam Penal Code 2009 was approved in the 10 th National Assembly, 6th session on December 21, 1999 and announced by the President on January 04, 2000 and become effective since July 01, 2000 After 15 years of implementation, Viet Nam Penal Code 2009 has proven to be an effective tool to protect the State and the regime, protection of legal rights and interests of citizens However, practical application of the Penal Code in 1999 shows certain problems and shortcomings Therefore, on November 27, 2015, at the 10th session, 13th National Assembly, Penal Code 2015 was passed to limit and overcome above problems and shortcomings of Penal Code 2009 During deployment and implementation of Decree No 109/2015/QH13 of National Assembly on implementation of this Code, relevant authorities have discovered and shown a number of technical shortcomings, some unreasonable provisions or difficulties in application of Code Therefore, improvement of criminal law has become an urgent issue, specifically amendment of Penal Code 2015 Amendment and suppementation of Penal Code 2015 shall ensure an inclination to the good in dealing with offenders, respect and ensure the full implementation of human rights in the Constitution of 2013 4.2 Measures On the basis of empirical research of application of legal regulations on offenses against the dignity and honor of the people as well as analysis of causes of difficulties and problems in the practical application of the law, author of this thesis provides some measures to contribute to ensure correct application of laws on this crime group Footer Page 21 of 166 19 Header Page 22 of 166 4.2.1 Improvement of criminal law To ensure effective application of the provisions of the criminal law of the offenses against the dignity and honor of the people, improvement of relevant provisions under criminal law has become an essential need The followings are legal bases for ensuring united and logical application of laws 4.2.1.1 New provisions in Penal Code 2015 on offenses against the dignity and honor of the people Compared to the Penal Code 1999, there are some changes in regulations on a number of offenses among group of offenses against the dignity and honor of the people Firstly, as for objective acts of sexual abuse crimes: Under current Penal Code (Penal Code 1999), as for sexual abuse crimes, behavioral signs of sexual intercourse with the victim (except Obscenity against children under Article 116 of the Penal Code, 1999) are the same As discussed in Section 3.1.1.1, the concept of sexual intercourse act in Conclusion sheet No.329 was no longer appropriate Penal Code 2015 does not change connotation of sexual intercourse act but amends it in the direction of supplementing "have a sexual intercourse or perform other sexual acts" Secondly, as for objective behavior of Trafficking in persons (Article 150 of the Penal Code 2015) and Trafficking in persons under 16 years of age (Article 151 of the Penal Code 2015): Penal Code 2015 provides the following amendments in the direction of specifically describing type of behaviors under human trafficking including: Acts of transfer or receipt of persons to deliver, receive money, assets or other material benefits; Acts of transfer or receipt of persons for sexual exploitation, labor enforcement , stealing of victim's body parts or for other inhuman purposes; Recruiting, transporting, harboring other persons to perform the acts mentioned above In addition, the Code also supplements cunning signs of "Using force, deception or by other means" in constituting a crime Objective acts of trafficking in persons under 16 years of age are similarly amended Thirdly, the Penal Code 2015 supplements two new crimes under the group of offenses against the dignity and honor of the people including crime of using people under 16 years old for the purposes of pornography (Article 147 of the Penal Code) Footer Page 22 of 166 20 Header Page 23 of 166 and crime of doing business, usurping human's tissue or body parts (Article 154 of the Penal Code) 4.2.1.2 Measures to improve regulations of Penal Code 2015 on offenses against the dignity and honor of the people The Penal Code 2015 provides comprehensive amendments of limitations and shortcomings of the Penal Code 1999 but the author finds that there remains a number of provisions which need to be improved more to create a firm legal corridor for resolving offenses against the dignity and honor of the people First of all, it is required to change "have a sexual intercourse or have other sex action" into "perform sexual acts" and explain what a sexual act is in Guidance Documents because sexual intercourse is also a form of sexual act Secondly, it is required to change "the contrary to the Will of the victim" Into "without the consent of the victim" Under this PROVISION, thay proving facts show có mà performance of sexual act is the contrary to the Will of the victim, only proving mà signs and expressions of the victim make offenders think victim to agree to have a sex Moreover, in terms of the victims, instead of requiring them to narrate what happened to prove their disagreement, it should aim at the offense and the offenders by forcing the offenders to narrate what happened to clearly state which detail makes them to think that the victims agree to have sex with them This change will help the victims not feel hurt again during criminal investigations Thirdly, as for modification of victim's age in the crime of sexual intercourse with children between full 13 and under 15 years old In accordance with Article 115 of the Penal Code, the victims in the crime of sexual intercourse with children are between full 13 and under 16 years old Based on study of a number of judgments of this crime, the authors found that most of the cases the offenders are lover, fiancé or even later husband of the victim Besides, the age at which people start to have sex in Vietnam is being decreased The author argues that regulation on the age of victims in the crime of sexual intercourse with children between full 13 and under 16 years old in current period is not really appropriate Fourthly, it is required to criminalize act of sexual harassment This act is relatively common at present It may occur in workplaces, schools, streets, means of transport and other public places It may include teasing, threatening calls or obscene Footer Page 23 of 166 21 Header Page 24 of 166 and cyberbullying In many cases, harassment is continuous for a long time seriously affecting the lives of harassed people, even making them demoralized and frightened 4.2.2 Guidance on the application of criminal law To ensure effective application of provisions under criminal law on offenses against the dignity and honor of the people, it is necessary to focus on guidance on application of laws Provisions included in Penal Code 1999 and a number of new provisions included in Penal Code 2015 are not really clear and easy to make different understandings Therefore, the authors suggest that the competent authorities should quickly compose guidance documents to make these provisions clearer Specifically, guidance on the subject of rape, child rape; guidance on performance of other sexual acts; guidance on salacious behavior; guidance on signs of serious offending in humiliation of people 4.2.3 Summary of practical application of criminal law To ensure effective application of the provisions of the criminal law on offenses against the dignity and honor of the people, it is required to strengthen to summarize practical application of criminal law Life in general and crime situation in particular are always changing with complicated happenings, so the criminal law cannot sometimes anticipate all the separate criminal cases Therefore, regular summary of practical application of criminal law will help to timely propose directions and ways of judging special cases with various interpretations and inconsistent solutions Courts at various levels should periodically summarize cases judged by them, report competent authorities on difficulties to learn from experiences as well as provide united guidances applied for all courts As for complex cases with many different perspectives, interpretations and solutions, the Supreme People's Court should provide united guidance applied to all courts to ensure fair judgement, right people, and right crime at every locality 4.2.4 Capacity improvement for officials applying criminal law To help ensure effective application of the provisions of the criminal law on offenses against the dignity and honor of the people, it is required to improve capacity of the officials applying criminal law The competent authorities should regularly organize training courses to improve knowledge and skill for the officials Footer Page 24 of 166 22 Header Page 25 of 166 working in agencies of legal proceedings in order to raise responsibility and qualification such as investigative agencies, procuracy and courts On the other hand, it is also necessary to develop a policy on commendation and reward as well as improvement of skill for the officials; policies on remuneration and other allowances so that they may be happy to work, improve knowledge, skill and ensure a strict, fair and objective application 4.2.5 Other measures It is necessary to focus on propagation and dissemination of law on the protection of and respect for dignity and honor of people Specific measures may be: further strengthen communicate and propaganda content of legal documents such as Criminal Law, the Law on Gender Equality, Marriage and Family Law, the Law on Protection, Care and education of children to raise people's awareness of sexual violence, human rights, personal rights In addition, it should have measures to enhance the parent's responsibility in management and education of their children; improve efficiency of coordination relationship among legal proceedings agencies in investigation, prosecution and trial of criminal cases in the offenses against the dignity and honor of the people Besides, the competent authoritues must strictly judge the offenses against the dignity and honor of the people under laws and organize travelling judgements as for these cases aimed at propagating laws to people Communication, education and dissemination of laws must be accompanied by specific and practical measures to raise legal awareness of the offenses against the dignity and honor of the people for both officials and citizens, agencies and unions Footer Page 25 of 166 23 Header Page 26 of 166 Sub-conclusion of chapter Human dignity and honour violation is one of ordrain expressed criminal policies of the Government in protecting human rights as well as basic rights of citizen In order to apply effectively regulations of the law to these criminals in the factual It requires to make amendment on regulations of criminal law to be fit with other solutions as issuance of guidance document for clear interpretation and consistence of legal regulations, strengthen the practice of judgement to get experience on factual judgment as well as consistence in way of application for special cases which havenot got the consistence in understanding and application Besides, it is necessary to improve quality of officers not only qualification but also professional ethics Outsides, strategies of propagation and education on law to people also need to be strengthened to enhance the law consciousness of people Throughout contributing effectiveness into protection and prevention crimines Footer Page 26 of 166 24 Header Page 27 of 166 CONCLUSION Human dignity and honour violation is one of the specially serious crimines, and dangerous to society in which regulated in Criminal Code, these crimes not only offence to the normal, healthy development of people but also effect pro- long mental process, physiology of victims and their family Besides, this behavior has worse impact to surround environment, many cases make the indignance, stings and pressing in the public The natures of Human dignity and honour violation seriously increases in the level and makes the alarm of moral deduction of people, significantly influence to the order of culture and society in the puplic Last time, fighting and preventing of authorities to this crime more and more improve but still meet the trobles during the factual application The main reason of these troubles mainly result from missing in regulations of criminal law on this crime Many regulations are not clear leading to the different understandings at proceedings - conducting agencies So application and solution of many similar cases is lack of the consistence Besides, there are regulations of law which are not suitable with the change of society Issuance of Criminal Code 2015 partly recovers those restricts However, Criminal Code 2015 has not completely removed the missing in regulations of law Some regulations need to get more specific interpretation to assure the consistent application in the fact Within the thesis, author has researched the theory on human dignity and hounor violation as well as some cases on this group of crime to have the factual measurements of criminal law application to this crime Basis, the thesis has expressed some petitions to make sure the application of law regulation about this crime group in the factual life as: petition on completing criminal law, guiding the application of criminal law, the summary of criminal law application and some other solutions to improve the qualification, capacity of officers as well as enhance the strategies of propagation, education law in the public Footer Page 27 of 166 ... Penal Code of Vietnam and other countries, Sweden one is not specified name of crime at the title but described criminal behaviors and name of crime inside each of article Sub-conclusion of chapter... significancies of the project - The project has clarified theoretical aspects and analysed evidently regulations in crimial laws of Vietnam concerned to crimes against human dignity Regulations in... of Vietnam - The project has supplied theoretical and pratical basis for legal application as well solutions for proper application of regulations related to crimes against human dignity Consequently,