Áp dụng hình phạt theo pháp luật hình sự việt nam từ thực tiễn xét xử của các tòa án quân sự tt tiếng anh

VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES L TRUONG DUC THUAN IMPOSING PENALTIES UNDER VIETNAMESE CRIMINAL LAW – A CASE STUDY OF MILITARY COURTS Major: Criminal law and criminal procedure Major code: 9.38.01.04 SUMMARY OF THE DOCTORAL DISSERTATION IN LAW Hanoi - 2020 The dissertation completed at Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences Supervisor: Assoc Prof Dr Tran Van Do Reviewer 1: Prof Dr Bui Minh Thanh Reviewer 2: Assoc Prof Dr Tran Dinh Nha Reviewer 3: Dr Pham Minh Tuyen The dissertation will be defended at Graduate Academy Level Council of dissertation assessment at Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences, 477 Nguyen Trai, Thanh Xuan, Hanoi Time: ………… date ……… month ………year 2020 The dissertation may be found at: - Vietnam National Library; - Graduate Academy of Social SciencesLibrary INTRODUCTION The necessity of the research topic In recent years, the Court’s hearing capacity is still limited and defected, leading to a case must go through many levels of trial and many times In fact, the imposition of penalties also shows the inadequacies and limitations of our country’s legal regulations that affecting the effectiveness of penalties In general, cases are tried by Military Courts (MCs) have imposed penalties corresponding to nature and seriousness of offenders, not only have a general effect of deterrent, education and prevention for the armed forces but also have a profound effect to the people in general Currently, Vietnam’s MCs have their own powers when dealing with criminal cases The rightimposition of penalties under the provisions of the criminal law will ensure the Vietnamese Army’s power to protect the independence, sovereignty, territorial integrity and socialist regime Therefore, it is necessary to have a comprehensive, systematic study on the imposition of penalties in both theory and practice so as to propose basic solutions to solve problems arising from practice of imposing penalties, and enhancing the quality of imposing penalties through hearing of MCs in particular and the People’s Courts in general; completing the provisions of criminal law on imposing penalties Therefore, the author chooses the research titled“Imposing penalties under Vietnamese criminal law- A case study of Military Courts” as his doctoral dissertation in law Research purpose and tasks 2.1 Research purpose The dissertation aims to examine comprehensively and systematically theoretical basis on imposing penalties; assessing the imposition of penalties of MCs so as to give methodological and theoretical conclusions on the imposition of penalties and propose solutions to improve criminal law, and improving the quality of imposing penalties 2.2 Research tasks Collecting and systematizing scientific research works on the imposition of penalties and other relevant issues Interpreting common theoretical issues on imposing penalties and proposing solutions to improve the quality of imposing penalties Research subject and scope 3.1 Research subject The research subject of the dissertation is the theoretical issues related to imposing penalties and practices of imposing penalties of MCs in Vietnam 3.2 Research scope The dissertation analyzes the provisions of the existing criminal law of Vietnam and the imposition of penalties at MCs within 10 years (20092018) The 2015 Penal Code has just stipulated criminal liability for commercial legal entities committing crimes.Due to the characteristics of the military, the dissertationjust studies the imposition of penalties for individuals who commit crimes Methodology and research methods 4.1 Methodology The dissertation examines the imposition of penalties through approach of multi-disciplinary and interdisciplinary of social sciences and law along with theoretical knowledge of legal philosophy, sociology, criminology and psychology 4.2 Research methods The dissertation utilizes main methods such as synthesis, analysis, historical method, comparative method and observation New contributions of the dissertation Theoretical research findings and proposed solutions are the main contributions of the dissertation The dissertation seeks to analyze comprehensively and systematically imposition of penalties, set up a basic theoretical framework on imposing penalties and assessing the practice of imposing penalties as well as pointing out limitations and obstacles when applying penalties and then it proposes some solutions to contribute to complete criminal policies and laws so as to improve the quality of imposing penalties Theoretical and practical significance of the dissertation 6.1 Theoretically The dissertation is a comprehensive and systematic research work on imposition of penalties The research findings contribute to enrich knowledge of imposing penalties; establishing a new research direction on imposition of penalties into a necessary scientific content to build and complete criminal law 6.2 Practically The research findings of the dissertation can be used to assess the impact of imposing penalties on the criminal policy in our country today, the development of penalties in the Penal Code and efficiency of each type of penalty so as to overcome mistakes in imposing penalties and crime prevention It is considered the basis for further building orientations and solutions to improve the quality of imposing penalties in judicial reform and international integration today The dissertation can be seen as reference for researching, teaching and studying criminal law and professional works in the fields of criminal procedures Structure of the dissertation Besides the introduction and conclusion, references and appendix, the dissertation includes chapters, 10 sections and sub-sections Chapter LITERATURE REVIEW 1.1 Foreign research situation By reviewing abroad literature, the study has built the following methodological arguments: it points out necessary scientific bases to conduct a new and comprehensive research direction on imposition of penalties Recognizing how the importance of punishments and imposing penalties impact on social life, as well as the development trend of the punishment systems and applying them for practical social life of each country so as to further open a comprehensive and intensive research direction on imposition of penalties 1.2 Domestic research situation In this study, the author points out some typical works and divided them into research groups such as studies on imposing penalties; studies on penalties; studies on the decision of punishments Generally, research works on imposing penalties and issues related to the imposition of penalties over the past years have mainly examined through statutory law approach Previous studies have analyzed regulations and practice of applying and enforcing penalties so as to assess the effectiveness of penalties in the criminal legal life There were a number of the intensive research works on the concept, legal basis and contents of imposing penalties These research works have expanded the methodological orientation, multidisciplinary and interdisciplinary approach along with comparative research of imposing penalties Other studies seek to examine issues related to imposition of penalties by different levels, specific punishments and sociological issues but not yet been examined comprehensively and intensively MCs hearing in practice 1.3 Assessing research situation and the issues need to be further examined in this dissertation 1.3.1 Assessing research situation on imposition of penalties and issues related to the imposition of penalties There were a large of numbers of research works on criminal law in general and on punishments and imposing penalties in particular These research works are not the whole system of studies on punishments and imposition of penalties abroad and in our country today They have basically shown a part of status, trend and scale of scientific research In Vietnam, recently, there have been basic research works on imposition of penalties and Mater theses examine imposition of penalties in a new direction compared to previous studies on decision of punishment These works have initially made a foundation for reasoning of imposing penalties 1.3.2 The issues need to be further examined in this dissertation First, the study seeks to examine comprehensively and intensively the theoretical issues on imposition of penalties Second, what are factors affecting the quality of imposing penalties? Third, how to improve the quality of imposing penalties of the Courts? There are major research issues that will be examined and analyzed in this dissertation First of all, the study focuses on the analysis of theoretical basis and utilizing general materials to prove and consolidate theoretical arguments The dissertation tries to propose recommendations and solutions so that suggesting the direction of sociological research of imposing penalties to completing the provisions of the criminal law in order to improve the quality of imposing penalties in the coming years Chapter THEORETICAL ISSUES OF IMPOSING PENALTIES 2.1 The concept, characteristics and principles of imposing penalties 2.1.1 The concept of imposing penalties The application of criminal law has many stages in which the stage of imposing penalties is one of the basic stages and having a particularly important position in the process of applying the criminal law According to the author: The imposition of penalties is a stage and a content of the application of criminal law, is a cognitive and practical activity of the authorities based on condemnation and identifying case’s circumstances as a basis for deciding punishments of the Court so as to particularize the sanctions of criminal law by orders and procedures for the convicted persons 2.1.2 Characteristics of imposing penalties 2.1.2.1 Characteristics of subjects and objects of imposing penalties The court is the only subject imposes penalties on convicted persons and deciding to applycriminal judicial measures and matters related to penalties in the execution of criminal cases, and force medical treatment upon defendants However, according to Article 29 of the Penal Code on the basisof the exemption from criminal liability, subjects have the right to exemption from criminal liability for offenders are not only the Court but also other proceeding-conducting agencies After condemning, the Court will impose penalties At the same time, stemming from the principle of presumption of innocence, the accused will not be guilty person unless he/she is convicted by the Court with legal effectiveness proven by the order and procedures, so the penalty just can impose on convicted person In other words, the object of imposing penalties is the person convicted in the Court’s judgment 2.1.2.2 Characteristics of selection and discretion The imposition of penalties with very high selection and discretion Through the provisions of the criminal law, the Court has a certain selection of applying sanctions for offenders For a crime, in criminal sanctions, there may be many different types of punishments and different levels that the Court can choose the specific type of penalty and level corresponding to the nature and danger of offenders for society, and other specific statutory bases 2.1.2.3 Characteristics of science and creativity in imposing penalties In the Penal Code, there are major penalties and additional penalties for offenders; major penalties and additional penalties for crimes committed by commercial legal entities Penalty system is a means for Adjudicators and Jurors can promote their scientific thinking, creativity, cognitive ability, judicial skills, social experience, independence, objectivity, bravery, professional ethics, clear conscience, kindness and altruism while hearing and imposing penalties 2.1.2.4 Characteristics of orders and procedures of imposing penalties The imposition of penalties will be conducted after the end of condemnation and given a conviction After having the conviction, Adjudicators and Jurors just know which criminal sanction of the Penal Code can apply for the convicted person The Penal Code strictly regulates conditions for deciding penalties, because of discretion and diverse selection of criminal sanctions The Adjudicator and Juror’s decision must rely on thorough understanding of conditions for deciding penalties, otherwise they are very easy to make mistakes and imposing wrong penalty 2.1.3.Principles of imposing penalties 2.1.3.1 The concept of principle of imposing penalties Principle of imposing penalties is defined as the guiding thought so that the Court applies criminal sanctions for persons and commercial legal entities committed crimes, and have the following characteristics:Principle of imposing penalties is the guiding thought of the legislative activities related to penalties and imposing penalties of the Court; the guiding thought must be drawn from the provisions of the law; the guiding thought must direct the Court’s imposition of penalties; it must be consistent with criminal policy of our State and closely link to the thought of criminal policy in each stage of development of the country Principles of imposing penalties are relatively independent and coexistence, and as logical and dialectical system of the guiding thoughts stipulated by the criminal law that the Court must comply with when applying punishments 2.1.3.2 Principles of imposing penalties - Theprinciple of socialist legislation In the Penal Code, the principle of socialist legislation shows that the Court just imposes penalty on offenders, must condemn properly offender’s act and the rationality of penalty decision The Court must be aware of and adhere to regulations on the purpose of penalties while applying them - The humanitarian principle in imposing penalties For this principle, while applying penalties, the Court must use humanitarian thought and harmonious combination of punishments When imposing penalties, the Court must consider all characteristics of personal record, beneficial circumstances, mental and physiological features, and special circumstances of the offender so as to have the right imposition of punishments on the offender This is the socialist humanity in imposing penalties in our country - The individualization of punishment The Penal Code shall classify crimes based on the nature and danger of offender’s act The individualization of punishment stipulated in the Penal Code to be the legal basis for the Court imposes properly penalties upon offenders and this process brings criminal law into real life, the imposition of penalties of the Court must be agreed by the people In order to achieve penalty’s goals, especially educating and re-educating offenders, when individualizing punishment, the Court must apply appropriate types of penalties and fines - The principle of fairness This principle means that the Court must choose the type of penalty and the level of penalty to be commensurate with the nature and danger of offenders and their personal record to the society so as to ensure assertiveness, argument and reasoning The Court must study comprehensively, objectively, and fully all circumstances of the case and considering the overall nature and danger of offenders and their personal record to the society, the aggravating/extenuating circumstances of criminal liability, a sense of law, conditions, education capability of the offenders, thereby Adjudicators and Jurors may decide a fair and suitable penalty for the offenders The principle of fairness requires the punishment imposed by the Court reflecting the correctness of public opinion, the sense of law, social morality and persuasion - The principle of ensuring social determinant Social determinant is a principle in imposing penalties of the Court This principle shows that when the Court applies a penalty for the offender, the role of persuasion and coercion is associated with reasonable education measures while executing punishment to achieve the social effect of the punishment In order to implement well this principle, the Court must realize the imposition of punishment is always a profound social process and must seek, consider, and assess the grounds to individualize punishments corresponding to the dangerous nature of the crimes for the society based on objective and comprehensive consideration of personal record and extenuating/aggravating circumstances of criminal liability of the offenders - The principle of independence, impartiality, objectivity and comprehensiveness When imposing penalties, the Court must ensure the important elements are independence and impartiality This is one of the prerequisites for imposing the right penalty so as to ensure the objectivity, fullness and comprehensiveness of circumstances of the case On the basis of an objective and comprehensive review of all circumstances of the case, and dangerous action of offenders, when imposing penalties upon convicted person, the Court must strictly comply with independence and impartiality, not allow any individual or organization to disturb its decision Panel play a very important role and directly impact on the effectiveness of imposing penalties 2.3.3 Independence and compliance with the law of Judges and Jurors Judges and Jurors’ hearing and compliance with the law are one of the basic and important principles of the CPC, as a very important factor that directly affects the effectiveness of imposing penalties Judges and Jurors must always strictly comply with principle of independent hearing and the law They must also comply with principle of collective hearing of the Court and decide by majority without being governed by any agency, organization or individual Judges and Jurors must have a firm bravery while enforcing the law and an inner belief when imposing penalties, that is factors to maintain independence while adjudicating 2.3.4 Ensuring conditions for Judges and Jurors Ensuring well interests, living and working conditions for Judges and Jurors will have a positive impact on the quality of imposing penalties Additionally, it is necessary to pay attention to the strategy of creating Judge forces, focusing on training and building up the judicial staffs, Court Clerks and Judges who have qualification, capacity, professional ethics enough and “immune reaction” to negative problems of the society so as to meet the requirements of judicial reform 2.3.5 The quality of proceedings of Investigative Agencies and Procuracies It is necessary to have accuracy and objectivity in investigating, prosecuting and condemning because they play an important and decisive role to the comprehensive and objective truth of the case, help the Court to hear and apply accurately penalties so as to promote the effects of punishment and enhancing the efficiency of education and prevention 2.3.6 Ensuring uniform application of law To uniformly and properly apply the law, the state’s agencies must regularly review practical experiences and issuing uniform guiding documents on the application of the law, especially building a coherent and strict system of case law 11 The source of law is case law and the case law plays an important role in applying the law and has a certain effect on the quality of imposing penalties 2.3.7 Public opinion Public opinion plays a significant role and multidimensional influence on social life Although the Court’s imposition of punishments bases on regulations of the criminal law, in addition to considering Vietnamese socio-economic, traditional and moral conditions, the Court must consider public opinion to impose accurately penalties and corresponding to the reeducation and specific circumstances of the convicted person The sentence must be supported by public opinion, as such the penalty just has the highest effect in social life 2.3.8 Preventing and combating crimes The requirement of preventing and combating crimes is a factor that has a significant impact on the quality of imposing penalties of the Court The specific requirements of fighting against crimes also change in each period of history and depend on the social development, political security situation, social order and safety in the country, and the international situation and the socio-economic development of the country in the context of revolution 4.0 – the development of modern IT, qualifications and knowledge of citizens in society 12 Chapter THE REALITY OF LEGAL BASIS OF IMPOSING PENALTIES AND MILITARY COURT’S IMPOSITION OF PENALTIES IN PRACTICE 3.1 The reality of legal basis of imposing penalties 3.1.1 Regulations on thepenalty system The penalty system has important significance for both theoretically and practically When applying penalties, the Court must comply with conditions, scope and limits of each penalty stipulated by the PC The penalty system provides for natural person, commercial legal entity who commit crimes and offenders under 18 years of age, the way of dealing with each type of crimes and offenders 3.1.2 Sanction of criminal law norms for crimes The PC provides major penalties and additional penalties for natural person, commercial legal entity who commit crimes, as well as types and limits of penalties for each crime In principle, the Court can only apply penalties in such sanction, unless the offender is eligible and the Court decides to switch to a lighter penalty The criminal law provides types of sanctions including absolute sanction, optional sanction and arbitrary sanction 3.1.3 Regulations on the basis for deciding penalty When deciding penalties, the Court bases on the provisions of the PC, nature and seriousness of the offender for society It also bases on personal identity of the offender and extenuating/aggravating circumstances of criminal liability To give the right penalty, Judges and Jurors must rely on their legal consciousness that is a crystallization of legal thought and awareness to be built from practical experience, ethics, bravery, and responsibility of citizens for society, choosing the right penalties to ensure rationality and fairness 3.1.4 Regulations on penalty decisions in some special cases In addition to the penalty system, sanctions and bases for deciding penalties, the criminal law also stipulates conditions and capabilities of imposing penalties in special cases such as exemption from criminal liability and punishment and deciding a lighter punishment than provisions of the law, suspended sentence 13 3.1.5 The provisions of the CPC should comply with in imposing penalties The imposition of punishment is a stage and a content of applying criminal law, and it is carried out by orders and procedures stipulated by the criminal law, so the provisions of the CPC are legal basis for imposing penalties and very important to this activity The Court strictly comply with provisions of the CPC will assure that the imposition of punishments is lawful, objective, reasonable and fair; ensuring the CPC’s mission is to protect justice, human rights, civil rights, socialist regimes, the State’s interests, and legitimate rights and interests of organizations and individuals so as to not accuse innocent people and enhancing the efficiency of the fight against crimes 3.2 Military Court’s imposition of penalties in practice 3.2.1 Overview of the situation of imposing penalties at military courts Military Court’s imposition of penalties over the years has achieved positive results, most of the trial panels achieved good results, ensure trial of right person, right offenses and right law to minimize missed crimes, especially, through the trial levels, no one was unjustly sentenced The Military Court tends to increase the use of non-custodial sentences but gradually reduces suspended sentences The Military Court’s decisions are based on the results of public litigation at a court hearing Judges and Jurors have upheld their responsibility in hearing and expressed their bravery, fortitude, stance and right awareness of the provisions of the criminal law while condemning and applying contents of penalties Imposing correctly penalties will achieve purposes of hearing and punishments to ensure accurateness, objectiveness, fairness and humanity of our country’s criminal policies to educate and re-educate offenders 3.2.2 Defining circumstances of the case as a basis for penalty decision in practice Defining the nature and danger of offense to the society is a very important content of the Military Court’s awareness and imposing penalties in practice Based upon the nature and danger of offense to the society means must base on the nature and consequences or threats; base on mistakes of offense and the nature of offense such as mode, ruse, means, tools, and circumstances of offenders 14 Defining grounds of personal identities of offenders means the Court based upon personal identities of offenders which consider their conditions and circumstances besides other grounds in order to assess accurately dangerous acts for the society and making penalties consistent with education and re-education of the convicted persons In practice, when deciding penalties, the Military Court not only bases on the provisions of the PC, the nature and danger of offense to the society, but also bases on other grounds that related to the quality of imposing penalties as well as punishment’s purpose and social justice Defining criminal liability extenuating/aggravating circumstances to assess dangerous level of offense to the society Every offense has its own motive and purpose, each subject of a certain crime has its own features to make circumstances related to the case and offense, of which, according to the PC, are criminal lability extenuating or aggravating circumstances for those who have committed crimes 3.2.3 Imposing suspended sentences at Military Court in practice In fact, from 2009 to 2018, the Military Court sentenced termed imprisonment for 2,281 defendants out of 3,381, in which suspended sentence for 1,017 defendants, accounting for 35.30% of the total number of defendants of termed imprisonment and 30.08% of the total number of defendants who have been tried It can be seen that, the number of defendants enjoy suspended sentences of the Military Court is still low but this has created favorable conditions for many defendants can educate themselves to become useful people in the society and not recommit crimes The suspended sentence will encourage convicted persons to selfimprove and work in the community through warm-heartedly help of their family and society and also warn them that if they commit a new crime during challenging time, they will be forced to serve imprisonment sentence This challenging time of the suspended sentence is very important because it is possible to check the correctness of the suspended sentence, and to have a reasonable punishment for the convicted person if they violate the challenging time of the suspended sentence 3.3 Military Court’s common limitations and mistakes in imposing penalties and causes In practice, the Military Court’s imposition of penalties depends on the requirement of fighting against crimes and also reveal certain shortcomings 15 that reduce the effectiveness of punishments Although some punishments of the PC aim to educate, re-educate, and prevent offenders from committing new crime, punishments of expulsion, residence ban, and control are not applied Some punishments are rarely applied such as warning accounting for 0.27% only, non-custodial reform is 4.26% (main penalty), expelling is 0.03%, expropriation of some civil rights is 0.18%, confiscation of assets is 0.18% and fine is 2.07% (additional penalty) The Military Court’s imposition of penalties over the years also emphasizes the punitive purpose, so the punishments with educational significance in the community are still low From 2009 to 2018, the Military Courts imposed warning, fines and non-custodial reform on 484 defendants, accounting for 14.31% out of 3.381 defendants This rate is low and not shows well the duty of judicial reform under the Politburo’s Resolution No 49-NQ/TW dated2 June 2005 on the strategy of judicial reform by 2020 “Reducing imprisonment penalty and expanding the application of fines and noncustodial reform” According to statistics, between 2009 and 2018, the Military Courts tried 369 cases with 695 defendants, court of appeals corrected the crimes for 02 defendants, cancelled first-instance judgment for 54 defendants, innocent defendants, 78 defendants were transferred to serve imprisonment, 06 defendants were increased imprisonment level, 87 defendants were decreased imprisonment level, 05 defendants were transferred penalties and 02 defendants were amended the additional penalty Statistics also show that the Military Court tried on cassation and reopening criminal cases of 15 defendants, of which did not accept an appeal to defendant, cancelled first-instance judgment or appellate to investigate and re-trial 10 defendants, cancelled partially the first-instance or appellate judgement for 03 defendants The limitations and obstacles in the trials of the Military Court are shown in the awareness of the application of the provisions of the PC, CPC, civil law and judicial measures 3.3.1 Imposition of penalties There are still some cases of wrong awareness, evaluation and application of criminal liability aggravating/extenuating circumstances, application of suspended sentences, favorable circumstances of defendants, although not much, it directly affects the individualization of punishments Incorrectly assess the nature and danger of offense and personal identities 16 of the offenders to the society leading to the imposition of unreasonable penalties In appellate trial, there are cases that the Appellate Court cancels the first-instance judgment to investigate and re-trial but not persuade and insufficient solid grounds; extenuating circumstances of defendants at the lowest level have been applied by the first-instance court but the Appellate Court still applies for the suspended sentences 3.3.2 Implementing the provisions of the CPC in imposing penalties Most of cases that the Court decided to return files for additional investigation have grounds However, there are still cases of returning files to be not accurate, groundless or not necessary, especially civil evidence so the Procuracy does not accept In some cases, the postponement of the trial, detention of defendant or the declaration of appeal time of the defendant is not consistent with provisions of the law Proceeding-conducting procedures at the trial panel, some Judges have not done well adversarial process at a court hearing The incorrect or inaccurate determination of the scope of appellate trial according to contents of appeals and protests leading to the appellate judgment is incomplete, inconsistent, and inaccurate one or beyond jurisdiction of the appellate court 3.4 The cause of the limitations and mistakes 3.4.1 Objective reasons The PC and authorities had specific regulations and guidelines but grounds and conditions of imposing penalties are inflexible, this leads to limit the promotion of such characteristics and cannot individualize the imposition of punishment In some cases, the provisions of the PC have overlapped contents so it is hard to apply There are provisions in favor of offenders but the legal knowledge of some Judges and Jurors is not similar so the imposition of punishment is still inconsistent and timely 3.4.2 Subjective reasons The force of Judges, Jurors and officials of Military Courts has not really met both the quantity and the quality.The capacity of a number of Judges and Jurors is still limited, they have not promptly studied and updated legal documents, their working responsibility is not high, simple thinking, carefulless, and their study of case is not comprehensive and objective In some cases, the independence and responsibilities of the Judges and members of the trial panel are not high, especially some Judges still rely on 17 opinions of leader and the Judge Committee, so they are not independent and dare not take responsibility Thus, the evaluation of evidence, nature and danger of offense to the society is not correct, the perception of legal provisions is not uniform, even contradictory The implementation of inspection, scientific research, seminars and learning experiences of some Military Courts is still limited and not paid adequate attention, a number of research contents is not associated with trial in practice The implementation of inspection, supervision and dealing with criminal cases of the leaders of Military Courts sometimes has not yet taken regularly and promptly, they have not detected limitations, mistakes, obstacles so as to have guidelines and draw experiences in time for subsequent cases Chapter REQUIREMENTS AND SOLUTIONS TO IMPROVE THE QUALITY OF IMPOSING PENALITES 4.1 Requirements of improving the quality of imposing penalties 4.1.1 Building a socialist rule-of-law state and protecting human rights In order for the PC to fulfill its mission to the society, the Court must well its role in the trial The imposition of right penalty will make an important contribution to completing mission of the PC and principles of socialist legislation are always strictly adhered to Ensuring human rights in proceedings, especially in imposing penalties on offenders of the Court needs to be paid special attention The Court’s imposition of punishment must ensure the correctness, reasonableness and feasibleness in practice The declared sentences must be consistent with education and reform of offenders, combining harmoniously and closely among penalties, focusing on tolerance, persuasive education, and covert offenders, and always upholding human rights in all circumstances 4.1.2 Judicial reform In recent years, the situation of law violations, crimes and disputes have occurred seriously and complicated developments, the judicial quality has not reached the people’s requirements, there are still many cases of missing crimes, innocent people are tried unjustly and violating citizens’ freedom and democracy This leads to reduce the People’s confidence to the Party 18 and State and Judiciary Therefore, it is necessary to further promote judicial reform to meet the requirements of building the Socialist rule-oflaw State of Vietnam Building a clean, strong and modern judiciary contributing to building and protecting the Party and State Judicial reform means reforming organization and operation of the judicial agencies and reforming the Court is a breakthrough step of judicial reform because the Court has a special role in the judiciary system, the Court’s verdict shows the final outcomes of the proceeding Judicial reform to further protect human rights and civil rights, and as an indispensable requirement in building and perfecting the rule-of -law state in our country 4.1.3 Implementing socialist humanitarian policy and fight against crimes Criminal policy and criminal law are closely related together Humane criminal policy must effectively prevent and fight against crimes A comprehensive criminal policy is a condition to improve the effectiveness of criminal law and to achieve the purpose of punishment in the real life The State issues criminal policy to determine accurately, objectively and reasonably social relations that need to be adjusted Criminal policy contributes to building the mutual and reciprocal relations of the state agencies, to build a solid legal and political basis so as to protect Vietnam’s Constitutional regime, rights and freedoms of the people and citizens, contributing to bringing principle of rule-of-law state into social life and successfully building a socialist rule-of-law state in our country 4.1.4 Ensuring the social decisiveness of penalties Considering the relationship between people, society, social reality and various aspects of penalties, it shows the social decisiveness of penalties, nature, contents, impacts and development of penalties is determined by social basis and premise From a sociological perspective, we can see the penalty is manifested through the complex process of sociology from building penalties, imposing penalties to the penalty execution The basic social function of penalties is to prevent crimes, educate and reform them, and enforcing justice While imposing penalties, the Court must consider the efficiency of penalty in fighting against crimes The imposition of right penalty means such penalty is suitable to the ability and conditions of education and re-education of the convicted person, must achieve the 19 purpose of penalty and is always effective in preventing and combating crimes Regarding the close interaction between social relations and penalties, when imposing penalties, the Court must always ensure the social decisiveness of penalties and the requirement for prevention and fight against crimes in each historical period of the society 4.1.5 International integration In fact, hearing activities in our country over the years showed difficulties and challenges when dealing with cases involving foreign elements, especially highly complicated cases, subjects are foreigners or Vietnamese who commit offenses fleeing abroad and acts against Vietnam State in foreign countries which Vietnam has not yet signed mutual legal assistance agreement, international cooperation, this is hard to protect rights and interest of Vietnamese citizens In fact, the imposition of penalties on persons or commercial entities committing crimes involving foreign elements under Vietnamese criminal law, the Court must always consider penalties related to international treaties which Vietnam is its member or international practice, especially penalties for foreigners and foreign legal entities committing crimes such as deportation and death penalty or permanently suspending against foreign legal entities The Court’s imposition of penalties on foreign offenders will directly affect Vietnam’s diplomatic relations with other countries, as well as bilateral and multilateral relations It also affects economic, political and socio-cultural relations in international relations If Vietnam applies right penalties, it will contribute to promote international cooperation and deeper integration, otherwise it will have a negative effect, the opposite effectiveness of penalties This contrasts with provisions of the international treatiesand practices which Vietnam is a member or not stipulate in the international treaties, leading to legal conflicts between Vietnam and other countries, even international retaliation Therefore, deeper and broader international integration plays an important role in helping the Court to improve the quality of imposing penalties 4.2 Solutions to improve the quality of imposing penalties 4.2.1 Completing the Penal Code The 2015 Penal Code still has some shortcomings that need to be further studied to modify, supplement, complete, and has uniform guidance for timely application in practice Some regulations are not clear, so there are 20 different interpretation leading to imposition of punishments will be different In addition, the 2015 Penal Code should be amended by increasing selective sanctions, reducing imprisonment penalties, increasing monetary penalties and other non-prison penalties These limitations and shortcomings have certainly impacted on the quality of imposing penalties of the Court Some basic issues that need to be amended and supplemented including regulations on criminal liability exemption; penalty decision; death penalty; synthesis of punishments and developing case law 4.2.2 Guiding theimposition of penalties and developing case law 4.2.2.1 Strengthening guidelines of applying law The Judge Council of the Supreme People’s Court and the Judge Committee at all levels should have timely and uniform guidelines on the contents of legal documents just took effect Unifying awareness of the purpose and role of penalties in fighting against crimes; guiding procedures for exemption from criminal liability and assessment of grounds of penalty decisions as well as applying suspended sentences Completing the provisions of the CPC on demonstration such as responsibility to demonstrate and the objects to demonstrate Training and retraining intensively trial skills for Judges and Jurors To promptly apply IT for reviewing trials in practice, self-evaluation to draw experience so as to unify awareness of applying law and improving the quality and efficiency of imposing penalties 4.2.2.2 Developing case law The Judge Council and Chief Justice of the Supreme People’s Court pay great attention to study, review and proclaim case law Resolution No 49NQ/Taiwandated June 2, 2005 of the Politburo, the 2013 Constitution, the 2014 Law on Organization of the People’s Court and Resolution No 03/2015/NQ-HDTP dated October 28, 2015 of the Judge Council of the Supreme People’s Court have determined the Supreme People’s Court is responsible for reviewing practical trial experience to ensure the consistency of imposing penalties, proclaim and develop case law 4.2.3 Improving the capacity of Judges and Jurors In order to build ethical standard for Judges who can strive and perform better and better their mission, on July 4, 2018,the National Council for selection and supervision of Judges issued “the Code for ethical conduct of Judges” The Judges should regularly improve their ethical 21 quality and professional skills Regarding trial, the Court must constantly improve the quality of hearing and judgements The improvement of the quality of Judge and Juror forces will be a decisive factor to the quality of hearing Judges, examiners, clerks and officials of the court should regularly study and improve their knowledge, practical experience and enhance professional exchange Training, recruiting and building a staff force as a source of judicial titles of the Court are very important and must particularly be paid attention 4.2.4 Guaranteeingthe independent hearing of Judges and Jurors In order to improve the independence and just comply with the law in the trial of Judges and Jurors, as well as improving the quality of trial panel, it is necessary to ensure that mechanism of exercising the right to trial of the court at all levels is consistent with overall mechanism of exercising state power The Court just complies with the law while hearing, if the Court is independent, the Judges and Jurors can be independent According to Regulation No 49-NQ/TW dated June 2, 2005 of the Politburo on the Strategy of Judicial Reform by 2020,it is necessary to improve the relationship between the Party and the Court’s trial activities and among other state agencies It is necessary to improve the provisions of the law on Jurors’ standards in the direction that elected or appointed Jurors must have certain legal qualifications 4.2.5 Strengthening inspection, supervision and implementation of the trial Inspection, supervision and implementation of the trial director are regular, continuous and necessary works in proceedings In fact, there are still some judgments and decisions of the Court took effect but contain mistakes that affect the legitimate rights and interests of the convicted person or relevant individuals and organizations, this has seriously affected human right and basic rights of citizens Therefore,to improve the quality and effectiveness of the trial activities and promptly rectify these mistakes, it is necessary to strengthen the inspection, supervision and implementation of the trial director of the superior Court towards the lower Court to ensure that all judgements and decisions of the Court take effect and are strictly and lawfully executed 4.2.6 Dealing with liability for violating law in imposing penalties 22 It is necessary to dealing with liability for imposing wrong penalty Because there are still some criminal cases that Judge and Juror impose wrong penalties while hearing, especially condemning innocent people or neglecting crimes This is due to their capacity and irresponsibility, some cases are due to intentional violation, causing very unfortunate consequences Incorrect condemnation, imposition of wrong penalties and incorrect sentence have seriously affected human rights and basic rights of citizens Having strict measures of handling against Judges and Jurors who violate the law, will ensure that the law is always strictly and thoroughly enforced, and guaranteeing the socialist legislation principles, the People’s Court and Military Court at all levels have increasingly become clean, strong and meet well requirements of judicial reform in our country 4.2.7 Improving the efficiency of propaganda and education of the law In order to raise the people’s awareness and observance of the law, it is necessary to implement synchronously the following solutions: Strengthening the Party’s leadership, the relationship among agencies, units and forces, and accelerating comprehensively propaganda and education of the law Improving the operational capacity of Councils in charge of law dissemination and education Surveying and investigating localities, regions, and various subjects to know how the people’s legal knowledge and awareness It is necessary to select and renew the contents of propaganda and education in an easy-to-understand, simple and practical manner It is necessary to implement synchronously and diversely various forms of propaganda and education of the law that consistent with psychology, ages, customs and practices of the people Building a unified program, improving the quality of extra-education of the law, and implementing comprehensively legal education at schools It should be paid attention to the renovation of both contents and methods of propaganda and education of the law to raise legal awareness of young people Actively respond to the Law Day (November 9) of the Socialist Republic of Vietnam by practical actions and building a habit of “Living and working according to the Constitution and Law” 23 CONCLUSION In this study, the dissertation has achieved the following basic research findings: First, the dissertation has generally assessed research situation of penalties and imposing penalties in our country over the past 20 years through typical scientific research works Second, the dissertation has analyzed and explained the theoretical issues on imposing penalties in terms of the concept, characteristics, principles, meanings, legal basis, mission and contents of imposing penalties It has also examined factors affecting the efficiency of imposing penalties, requirements and methods to ensure the imposition of right penalties in the Court’s trial panel Third, the dissertation has basically clarified the theoretical and practical issues of imposing penalties and explaining the relationship between imposition of penalties and social reality Fourth, the dissertation has examined the Military Court’s imposition of penalties in practice and has interpreted impacts of legal awareness on the efficiency of imposing penalties as well as the awareness of determining circumstances of the case Fifth, the dissertation has supplemented and enriched the theoretical and practical issues of imposing penalties 24 THE AUTHOR’S PUBLISHED-RESEARCH WORKS RELATED TO THE DISSERTATION Truong Duc Thuan & Nguyen Son (2013), “Understanding the law on the offense of intentionally causing injury”, Journal of Vietnam Social Sciences, No (66), pp 44-50 Nguyen Thi Tuyet & Truong Duc Thuan (2016), “Applying the provisions of Clause 3, Article of the 2015 Penal Code”, Journal of People’s Court, No 17/2016, pp 16-20 Nguyen Thi Tuyet & Truong Duc Thuan (2016), “Applying favorable regulations for offenders when the 2015 Penal Code has not yet taken effect”, Journal of Law Profession, No 6, pp 25-28 Truong Duc Thuan (2018), “Imposing penalties under Vietnamese criminal law”,Journal of Vietnam Social Sciences, No 8, pp.32-41 Truong Duc Thuan (2018), “Discussing some factors affecting the quality of imposing penalties”, Journal of People’s Court, No 11 (Volume I), pp 21-26 Truong Duc Thuan (2018), “Discussing some factors affecting the quality of imposing penalties”, Journal of People’s Court, No 11 (Volume II), pp 28-32 Truong Duc Thuan (2018), “Some solutions to improve the quality of imposing penalties in Vietnam today”, Journal of Social Science Manpower, No (61), pp 11-21 Truong Duc Thuan (2019), “Vietnamese Penal Code’s provisions on human rights under the UN Convention against torture, Journal of Vietnam Social Sciences, No 4, pp 54-68 25 ... of Social Sciences, Vietnam Academy of Social Sciences, 477 Nguyen Trai, Thanh Xuan, Hanoi Time: ………… date ……… month ………year 2020 The dissertation may be found at: - Vietnam National Library; -... complicated cases, subjects are foreigners or Vietnamese who commit offenses fleeing abroad and acts against Vietnam State in foreign countries which Vietnam has not yet signed mutual legal assistance... rights and interest of Vietnamese citizens In fact, the imposition of penalties on persons or commercial entities committing crimes involving foreign elements under Vietnamese criminal law, the