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 pro
Trang 1GRADUATE 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
Trang 2Vietnam 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
Trang 31 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
2 Vu Hai Anh (2016), Some new points of Criminal Code 2015 about sexual crime, Magazine of law occupication, No.: 03, pages 32 - 36
3 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
4 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 3 -
8
Trang 4INTRODUCTION
1 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
2 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
3 Object and scope
3.1 Object of the project
Trang 5The 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
4 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
5 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 4 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
6 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
Trang 6intersectoral 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
7 Abstract
Introduction
Chapter 1 General research situation;
Chapter 2 Theoretical and historical aspects of crimes against human dignity; Chapter 3 Regulations of the Penal law Code in 1999 and the practical application of the provisions on the infringement dignity and honor of human;
Chapter 4 Solutions for proper application of regulations related to crimes against human dignity;
Conclusion
Trang 7CHAPTER 1 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
Trang 8Thre 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 1
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
Trang 9CHAPTER 2 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 8
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
Trang 10means 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
Trang 11Revolutionary Government of South Vietnam Republic promulgated Act No 03 / SL- 1976 specifies the offenses and penalties to be applied in the South of Vietnam, including provisions on the crimes of the dignity and honor of the people Overall, the legal handling of criminal offenses against the dignity and honor of the missing person, the trial court mainly to policies of the Party and the Government, according
to the case-law through review and guidance of the Supreme people's Court but only focuses on sexual crimes
2.3.2 The period from when the Criminal Code in force until 1985 prior to the Penal Code in 1999 have legal effect
Penal Code in 1985 by Congress VII 06 through May 27, 1985 at the 9th session and takes effect from 01 May 1986 This is 01 the first Criminal Code was enacted in our country on the basis of codification the criminal legal documents were issued earlier In the 1985 Penal Code, the offense of violating the dignity and honor
of man is defined in chapter 2 section includes the crime of crimes: rape (Article 112), the crime of rape (Article 113), sexual intercourse offenses a person under 16 years of age (Article 114) and trafficking in women (Article 115); also guilty poaching, trading or swapping of children are stipulated in Article 149 of the Penal Code in 1985 in Chapter 5 - The trespassing to marriage and family regime and the crimes against minors Regulation of this crime are also changing and more and more complete to meet the requirements of the new situation
2.4 The offenses against the dignity and honor of the people according to the provisions of the criminal law in some countries in the world
2.4.1 The offenses against the dignity and honor of the people under the Criminal Code of the Russian Federation
Criminal Code of the Russian Federation State Duma is through May 24, 1996, the Federal Council approved June 5, 1996 In it, the crimes of the honor and dignity
of human beings is defined in Chapter 17 - The offenses against freedom, honor and dignity of individuals and Chapter 18 - The offenses against sexual freedom The provisions on the crimes of the dignity and honor of the people in the Penal Code and the Criminal Code of the Russian Federation Vietnam have many similarities In particular, we can see, the criminal legal-technical and technical general building regulations on the crimes of the dignity and honor of the people in Vietnam in
Trang 12particular, is subject to the influence of the Federal Russia should the penalty provisions of the basic frame and aggravation as well as many aggravating factors are the same framework Moreover, many provisions in the Criminal Code of the Russian Federation and Vietnam is no difference as the names crimes, crimes arrangement in each chapter of the Code
2.4.2 The offenses against the dignity and honor of the people under the Criminal Code Federal Republic of Germany
Unlike Vietnam Penal Code, the Penal Code of the Federal Republic of Germany, the crimes of the dignity and honor of the people are regulated in many chapters Sexual crimes are defined in the 13th chapter, the private part of the PC with the name of the offenses against sexual self-determination included 26 laws (Article 174 to Article 184g); the offense of human trafficking is defined in the chapter of offenses against personal freedom (Chapter No 18, own section of the Penal Code) with four rules (Articles 232, 233, 233a, and Article 236); other crimes infringing the dignity and honor of the people known as the crime of insulting the provisions of Chapter 14 separate section covers some typical offenses such as insulting, defamatory Crime; Slander The Criminal Code offenses in the Federal Republic of Germany is separated from the special case of multiple offenses
2.4.3 Crimes against human dignity on Sweden Penal Code
Swedish Penal Code was adopted in 1962, entered into force on January 01st
1965 and the first amendment was taken on May 01st 1999 Crimes against human dignity have been specified in many chapters of Swedish Penal Code Specially, sex crimes are defined in chapter 6 with 15 articles of crimes; human trafficking crimes are defined in chapter 4 which is included of crimes against freedom and peace; crimes against human dignity are defined in chapter 5 with 5 relevant articles It is different from 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 2
Crimes against human dignity were firstly specified in Penal Code in 1985 which has an important criminal legislation significancy These regulations have been amended or appended by the time to adapt the changes of social and economic
Trang 13circumstances 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