Environmental crimes a comparision between swedish and vietnamese legislation

HA NOI LAW UNIVERSITY LUND UNIVERSITY FACULTY OF LAW ENVIRONMENTAL CRIMES - A COMPARISON BETWEEN SWEDISH AND VIETNAMESE LEGISLATION SPECIALTY: INTERNATIONAL AND COMPARATIVE LAW CODE: 60 38 60 MASTER OF LAW THESIS STUDENT: DAO LE THU THƯVIỆN TRƯỜNG DAI H O r HÀ MỘ! SUPERVISORS: DR TRUONG QUANG VINH DR PROF PER - OLE TRASKMAN HANOI - 2004 Contents SUMMARY PREFACE ABBREVIATIONS INTRODUCTION 1.1 Background 1.2 Purpose and m ajor problems will be solved 1.3 Lim itation 1.4 Previous research 1.5 Materials and m ethods 1.6 Disposition SOME THEORETICAL ISSUES CONCERNING ENVIRONMENTAL CRIMES UNDER SWEDISH AND VIETNAMESE PENAL LAWS 2.1 Swedish and Vietnam ese historical remarks of legislation on environm ental crim es 2.1.1 Svvedish historical remarks 2.1.2 Vietnam ese historícal remarks - com pared w *h Sweden 2.2 Some points of vievv on environmental criminal law and environm ental crim es 2.2.1 8 13 17 From international to national points o f view: United Nations Europe - Svveden 17 Vietnamse points o f view - com pared with international and Svvedish ones 26 2.2.2 ENVIRONMENTAL CRIMES ACCORDING TO SVVEDISH AND VIETNAMESE PRESENT LEGISLATIONS 3.1 Characteristics of environmental crimes 33 33 3.1.1 Under the Svvedish present legislation 3.1.2 Under Vietnamese present legislation - com pared with Svvedish legislation 37 3.2 Speciíic environm ental 3.2.1 33 crimes 41 Under the Svvedish Environm ental Code o f 1999 41 3.2.1.1 Environmental offence (Section 1) 3.2.1.2 The offence of causing environmental disturbance (Section 2) 41 42 3.2.1.3 The offence of environmentally hazardous handling of Chemicals (Section 3) 42 3.2.1.4 The offence of unauthorized environmental activity (Section 4) 43 3.2.1.5 The offence of obstrution of environmental control (Section 5) 44 3.2.1.6 The offence of incomplete environmental iníormation (Section 6) 44 3.2.1.7 The offence of littering (Section 7) 45 3.2.1.8 The offences with designations (Sections 8, 9, 10) 45 3.2.2 U nder Vietnamese Penal Code o f 1999 48 3.2.2.1 Crim es of causing environmental pollution (Arts 182, 183, 184) 3.2.2.2 Importing technology, machinery, equipment, vvaste or substances wich fails to meet environmental protection standards (Art 185) 48 3.2.2.3 Crim es of speading serious disease to human beings or animal or plant (Arts 186, 187) 49 3.2.2.4 Crim e of destroying Aquatic Resources (Art 188) 49 3.2.2.5 Crim e of destroying forest (Art 189) 50 3.2.2.6 Violating provisions on the protection of rare wild animals (Art 190) 50 Violating the special protection of natural reserves (Art 191) 50 3.2.2.7 BIBLIOGRAPHY Internet Sources Liíerature Legal sources 48 57 58 58 59 Summary In Vietnam as well as in Sweden, in spite o f the fact that environmental criminal law and environmental crimes are the new phenomena, they are hot and urgent issues Environmental crimes are alarming problems, causing serious detriment to human health, fauna and ílora, and the environment as well Therefore, it is called for effective and tough measures Environmental penal law is among such measures However, the fact that it is used differently in different countries and it has different effects therein In Svveden law on environmental crimes is established sooner in comparison with it is in Vietnam Nevertheless, like Vietnam, Sweden also has similar problems in legislation on as well as in applying law to deal with such crimes Doing comparative research on environmental crimes in respect o f criminaỊ law between Swedish and Vietnamese legislation 1S thus necessary to show their good points as well as find out their shortcomings to revise This thesis compared Vietnamese and Swedish legislation on environrnental crimes during their origin and development, ĩmding out that although Vietnamese and Swedish points o f view on such crimes are quite similar, there are many differences between the two penal law systems on them For example, differences in the technique o f the legislation, in the manner of describiiig crimes, in the sanction system, etc Shortcomings o f two penal systems such as problems o f criminal liability, unclearly describing crimes, etc are found out Hopefully, thc vveaknesses of law and the suggestions for amending them mentioned and justified in the thesis will be considered officially in order to make the legislation on environmcntal crimes more effective This helps to protect the environment for our lives Pretace I hold it as a great honour to participate in The Swedish/Vietnamese Master Programme in International and Comparative Law It is a pleasure to express my gratitude to all the persons who helped me in pursuing my research First, I ’d like to give my very particular thanks to the Board of Directors, Professor Per-Ole Traskman o f Lund University, Professor Truong Quang Vinh o f Hanoi Law University and all proíessors participating the project who helped and gave me valuable knowledge I would like to extend my words o f appreciation to Librarians o f Lund University, Librarians o f Hanoi Law University, and all my íriends Finally, I am indebted to Lund University and Hanoi Law University for íinancing my study To my family whose love and comfort encouraged me to complete this academic study Abbreviations EC European Commission ECCP European Committee on Crime Problems ECOSOC the Economic and Social Council o f United Nations NJA Nytt Juridiskt Arkiv Skr Regeringens Skrivelse sou Statens Offentliga Utredningar UN United Nations Introduction Historically, using criminal law as a means to protect environment is new phenomenon not only in Vietnam but also in Sweden People usually think about criminal law as a severe system while they think about environmental offences as little dangerous activities The importance o f criminal law in the relation to environmental issue has only been considered recently when other legal measures for protecting environment becom e ineffective 1.1 Background The world faces serious environmental challenges The environm ent is now a hot issue o f all countries, both developed and developing Environmental pollution, degradation and accidents occurred with increasingly high írequency that put the human beings coníronting w ith the revenge o f the nature The emission o f gases threatens the global climate and causes deplction of the ozone layer Rising global temperature m ay cause íloods, droughts, greater storm intensity, and eventually rising sea level Ozone depletion may have various health and ecological effects, including increasing occurrence o f skin cancer and decreased productivity o f íbod crops Biological production is also at danger through such developm ent as land degradation, đeíbrestation, loss o f biological diversity aud over-fishing The above facts tell us that we are bearing the consequences that have been causing by our environmental damage activities Aí the moment, there is a requirement that “the health o f human beings, animals and plaints and the beauty o f landscapes rrust be protected by all possible m eans.” It means that we should use various and effective measures and policies to prevent acts causing environmental pollution, to save our environment In order to solve envữonmental problems, we should to some extent recourse to criminal law By íịcusing on acts causing or likely to cause the most-harm, criminal law can at least reduce, if not eliminate, the environmental damage “Criminal law, considering also the socio-ethical character o f offences against the environment, must intervene to protect the com m unity.”2 Sweden as well as Vietnam, despite many differences in politics, economic development, culture, etc, share environmental problems Both countries are aware o f the necessity o f the environmental protection They both have national policies to protect environment through criminal law However, C ouncil o f E urope, R esolution (77) 28 on the co n trib u tio n o f crim in al law to the protection o f the env iro n m en t, adopted on 28 S ep tem b er 1977 at the lh m eetin g o f the M in isters’ D eputies E uropean C om m ittee on crim e problem s, R ep o rt on the co n trib u tio n o f crim in al law to the protection o f the en v iro n m en t (prepared by S u b -co m m ittee N o X X X IV ), attached to R esolution (77) 28 they also have the difficulties in applying criminal law on environmental offences In fact, in spite o f the existence o f legislation on crimes against environment and o f the increase o f hazardous acts causing environmental pollution, the two countries have few cases involving environmental crimes We can thereíbre say the two criminal law systems have really not acted the role as effective instrument to prevent and limit environmental damage This fact requires to find the reasons o f and the solutions thereto Hopefúlly, in the near future, dealing with environmental crimes through criminal law will be more effective, thus solving completely environmental problem s in Sweden and also in Vietnam 1.2 Purpose and major problems will be solved This thesis will go deeply into the two crimina' law systems relating to environmental crimes and then compare them The aim o f this research is mainly to present and make the legislation o f the two countries on such crimes much more clear so that the readers can easily understand them The discussion, based on the history o f and the views on the legislation, the current legal on environmental crimes, is to fĩnd out the reasons why it is difficult to punish such crimes through criminal law and then to give the suitable suggestions to deal w ith this problem In adđition, the research is also to make some recommendations for improving the legislation o f the two countries on crimes against the environment In order to obtain such purposes, the rescarch will concentrate on solving following major problems: When did the two countries consider criminal law as a tool for the protection o f the environment, thus making law on environmcntal crimes? How were the origin and the development o f law on such crimes? These can help us to understand Swedish and Vietnamcse consideration o f the importance o f criminal law in controlling the environmental offences From the UN, Swedish (also Council o f Europe ) and Vietnamese points o f view, clarify the role o f criminal law in the relation to environmental protection, the concept and outstanding features o f environmental crimes, the punishment policy for such crimes M oreover, the questions o f where environmental crimes should be provided (in Penal Code or other codes), o f criminal liability (individual or corporate responsibility) will be presented and commented Present speciííc environmental crimes according to Swedish and Vietnamese cuưent laws with the main questions: W hat are the emerging features of environmental crimes under current laws? W hat are the similarities and differences between them? How can they be explained? What are the main elements o f each crime? How severe are the punishments for each crime? During analysing Swedish and Vietnam ese current laws on environmental crimes, the difficulties in applying them in practice will be found out, discussed and some possible solưtions to these problem s will be given Especially, by way o f comparative analysis with Swedish legislation, íínding out Swedish solution which may be used in the future in Vietnam 1.3 Limitation There are many issues conceming environmental crimes However, in the scope o f this thesis, the analysis only íịcuses on environmental crimes in terms o f the legislation - the law on such crimes Therefore, the delinquency as well as the reasons o f and the solutions to criminality o f environmental crimes will not be discussed in this research In addition, some more interesting but not immediate things involving such crimes, such -as the investigating technique, public reaction, etc, will be left out In other word, the aspects o f criminality and procedure will not fall into the scope o f the research This thesis just mentions to some theoretical and practical issues on Swedish and Vietnamese legislations on environmental crimes The subjects o f comparison in this thesis are Sweden and Yietnam Accordingly, the analysis will direct forward Swedish and Vietnamese criminal laws Furthermore, because Sweden is a member o f European Community, European legislation on environmental crimes and European decision conceming the protection o f the environment through criminal law will be considered to some extent 1.4 Previous research Environmental crimes are not traditional crimes Consequently, using criminal law to control environmentally hazardous activities is new phenomena in both countries, Sweden and Vietnam There are thus not many researches on this topic Some Svvedish articles can be referred here, such as “Can criminal law protect the e n v iro n m e n t? ” (2 0 ) written by Helene Du Rees, a doctoral student o f criminology o f University of Stockholm, Sweden; or “Big stick, little stick: Strategies for controlling and combating environmental crimes” (2001) made by Lars Emanuelsson Korsell from The National Council for Crimes prevention, Stockholm, Sweden; or “The BT Kemi Scandal and the establishment o f the environmental crime concept” (2001) by Erland Marald from Department of Historical Studies, University o f Umes, Sweden From Vietnam, there is a study named “Quantiíication o f penal frames in respect o f environmental crimes under Vietnamese Penal Code o f 1999”(2000) carried out by the Cooperation between National environment Agency and SEMA prọịect but only íbcussed on how frames o f punishments for environmental crimes can be applied There are also some other comments and articles, books, regarding one or some issues concem ing environmental crimes but just íbcusing on current legal laws Furthemiore, they did not considered environmental crimes entirely and deeply from the aspect o f the legislation Finally, they mainly focused on the domestic law on environmental issue 3.2.1.7 The offence of littering (Section 7) The conduct o f offence is leaving litter outdoors In the content o f this offence, there is a requirement conceming the place in which the conduct happens It is nesessarily a public has access or which is within its view Such an act can be operated with the intent or through negligence Due to committing the offence o f littering, the offender shall be punished with a fíxed term o f imprisonment at most one year This offence is based upon criminalization o f the prohibition laid down in Chapter 15 section 30 o f the Code Accordingly, it is stipulated that ”leaving litter out o f doors in places to which the public has access or which are within its view shall be prohibited” 3.2.1.8 The offences with designations (Sections 8, 9, 10 ) These offence are infringements different rules on the proletion o f the environment in or issued in pursuance with the Environm ental Code The objects o f the offences are various and belong to different m edia o f the environment ưnder Section 8, the offence consists o f the following actions: - Infringing rules for the total defence issued in accordance with Chapter 1, section o f the Code - Violating rules conceming ”protection o f areas” under Chapter o f the Code The action can violate restrictions on land use rights laid down in decisions conceming naaire reserver or culturc reserver following section second or third paragraph, for example the violation o f prohibition against the use o f pesticides in a decision relating to n;iture reserve Also the action can violate the prohibition conceming habitat proteclion areas lain down in section 11, rules for special protecũon o f ílora or fauna pursuant to section 12, the prohibition conceming a shore protection area under section 16, rules concem ing precautions in envií Dnmental protection zones following section 20, rules imposing restrictions in water protection areas issued under section 23 or temporary prohibition imposed according to section 24 - Violaung rules conceming the protection o f aninal and plant species under Chapter o f the Code, such as the violation o f rules imposing prohibitions for the protection o f species issued following section or 2, rules concem ing special conditions for the release o f aninal or plant species issued under section 3, etc - Iníriging rules conceming environmental hazardous activities under Chapter o f the Code, i.e the iníringement o f rules prohibiting discharges o f wastewater etc Issued according to section 4, etc - Iníringing restrictions, conditions or a notiĩication requirement relating to an environmental hazard zone lain down pursuant to Chapter 10, section 12 o f the Code - Inữinging the obligation to maintain a water structure pursuant to Chapter 11 o f the Code - Violating prohibitions conceming quarries, agriculture and other activities under Chapter 12 o fth e Code 45 - Violating rules conceming genetic engineering issued under Chapter 13 o f the Code - Violating ruler conceming chemical Products and biotechnical organisms according to Chapter 14 o f the Code - Violating the prohibition againts the dumping or in cineration of waste laid down in Chapter 15, section 31 o f the Code - Iníringing some provisions conceming the protection o f the environment in some Council Regulations (EEC) or Commission Regulation, for example the action o f violating the prohibition againts providing or the duty to provide iníbrmation laid doun in council regulation (EC) No 3093/94 o f 15 december 1994 on substances that dedlete the ozone layer, etc All violations above can be carried out intentionnally or through negligence The actions above shall be punished accoriding to Section or Section if they cause the damages as considered such actions The penalty for the offence can be a fine Oỉ a tem i o f imprisonment at most two years Under Section 9, the crime contains the following atcs: - Violating rules conceming public order issued pursuant to Chapter 7, Section 30; - Violating rules conceming the prohibition o f animal husbandry issued pursuant to Chapter 9, Section 11; - Violating rules issued for the purpose o f protecting human health or the envirơnment pursuant to chapter 9, sectionl2; - Violating the notiíícation requirement laid down in chapter 11, section 15 third paragraph with respect to works that may cause darríage to íishing; - Violating rules conceming the management o f agricultural land issued pursuant to chapter 12, section 8; - Violating rules limiting the number o f animals on a holding etc issued pursuant to chapterl2, sectionlO; - Violating the prohibition or rules conceming the removal o f waste laid down in chapter 15, section 21 by collecting and removing waste professionally or othenvise on a large scale; - Violating rules conceming the removal o f waste issued pursuant to Chapter 15, Section 25 íĩrst paragraph, point 2; - Violating new or altered conditions relating to game enclosures issued pursuant to Chapter 24 Section 12; - Violating the prohibition against ĩishing laid down in chapter 28, section 13; - Violating the obligation imposed by Council Regulatic- ’ (EC) N o.338/97 o f December 1996 on the protection o f species o f wild fauna and flora by regulating trade therein, at last amended by Council Regulation (EC) 938/97 o f M ay 26 1997, to provide iníbrmation in applications or other documents conceming matters relevant to permits or supervision This crime is not required the effect It can be committed deliberately or though negligence 46 According to secíion 10, crime is acts of dealing with specimens o f an animal or plant species or eggs, spawn, roe or nests Particularly, there are the two following acts: - Act violates rules prohibiting the killing, irýury or capture o f wild animals or the taking o f or causing o f damage to the eggs, spawn, roe ro nests o f such animals in the country or any part o f it - Act violates rules prohibiting the removal of, the causing of damage to or the taking o f seeds or other parts from wild plants in the country or any part o f it The provision does not require the effect This crime is commited intentionally because the provision on that crime provided that: ” he knows, or has reasonable grounds to assume,” It means that the offender exactly and clearly understands such acts are dangerous but still wants to so This penal provision is to protect wild animals or plants, especially'in the present situation when such creatures are being killed or hunted seriously 47 3.2.2 Under Vietnamese Penal Code of 1999 3.2.2.1 Crimes of causing environmental pollution (Arts 182, 183, 184) There are three crimes concem ing environmental pollution: "Causing air pollution (Art 182), "Causing water pollution" (Art 183) and "Causing land pollution" (Art 184) In comparison with " Environmental offence" under Section Chapter 29 o f the Swedish Environmental Code, these crimes are criteria o f the environmental: air, water, land, they are all "effect crimes", the conducts and effects are similar; they are all committed intentionally However, under Arts 182, 183, 184 o f Vietnamese Penal Code, the conducts are described little more speciíically For example, crime o f causing air pollution consists o f discharge into the air different kinds o f smoke, dust, toxic substances or other harmful elements; emitting radiation or radioactive substances, etc In addition, one more difference between these crimes is that effects o f crimes are described generally under Vietnamese law while they are speciĩic under Swedish law The biggest đifference between these crimes is that there are three distinctive crimes under Vietnamose law while there is only one crime under Swedish law In my opinion, crimes provided in Arts 182, 183, 184 o f Vietnamese Penal Code should be combined into One and stipulated in one article The reasons for this combination are as follows: fìrst, air, water and land as criteria o f the environmental shoulcl not be distinguished, they should be considered as same important elements Second, an act can pollute not only but two or even all three elements So, if these crimes are gathered in one article it is easier for the conviction o f the criminal in question 3.2.2.2 Importing technology, machinery, equipment, waste or substances wich fails to meet environmental protection standards (Art 185) Crime consists o f the following activities - Importing technologies, machinery, equipment, waste, substances and biological product - Giving permission for importing such things Crime committed deliberately For the second activity, the offender must be corapetent offícial who is responsible for giving permission for importing things that fulfíll legal requirements In comparison with some activities conceming similar issue stipulated in Chapter 29 o f the Swedish Environmental Code (Section points 22, 23, 28) there are two basic differences between them as follows: First, under Vietnamese law objects o f crime are entirely prohibited from importing because they not meet environmental protection standards Whereas, under Swedish law these objects may not be imported or may be imported conditionally Second, Vietnamese law only provides acts o f importation, while Swedish Iaw also stipulates acts o f exportation and o f re-exportation This shows that 48 Sweden observes principle o f intemational environmental law that required each State to respect and protect not only its environment but also other countries’ environment In the future Vietnam should receive this good point o f Swedish environmental penal law 3.2.2.3 Crimes of speading serious disease to human beings or animal or plant (Arts 186, 187) They are crime o f spreading serious disease to human beings and crịme o f spreading serious disease to animal or plant The provisions concem ing such crimes are aim at protecting human beings and animal or plant from serious disease that is easy to be transmitted (epidemics) Arts o f these crime can be as follows: - Taking animal, plant or their product that have disease, thus being able to spread this disease to human beings or animal, plant - Importing or giving permission foi mporting animal, plant or their product carrying the terms or serious disease that could spread to human beings or animal, plant, etc For crime o f spreading serious disease to human beings, effect (detriment) is not reqi red, but for crime o f spreading serious disease to animal or plant it is required Both crimes are committed deliberately Artion o f giving permission for importing the above objects requires being committed by competent official who is responsible in the íĩeld o f quarantine law These crimes are not provided in the Swedish Environmental Code as environmental crimes They are now provided in the Penal Code as crimes involving public danger (Chapter 13 Sections and 8) In m y opinion, Vietnamese legislators should put crime o f "Spreading serious disease to human beings" in Chapter XIX (Crimes against public security and safety) o f the Penal Code, since this act only causes detriment to human health, thus giving danger to public safety It does not cause damage for the environment; therịre, it should not be considered as environmental crime 3.2.2.4 Crime of destroying Aquatic Resources (Art 188) This crime consists o f iníringements o f regulations on the protection o f aquatic resources It can be act o f using toxic substances, explosives in catching físh or act of íishing in prohibited areas during the spawning seasons o f some aquatic species, etc Effect o f crime is required It can be the serious lack o f some aquatic species or in a large scale, etc Crime is carried out intentionally In comparison with Swedish law, it can be seen that there is no particular provision involving only this crime The similar acts are stipulated sparsely in some different sections, such as section (points 4, 9, 11), Section (points 4, 10) or section 10 o f chapter 29 o f the Swedish Environmental Code Vietnamese legislative seems preferable because it collects related 49 acts in one provision, thus making provision on such comprehensive acts more 3.2.2.5 Crime of destroying forest (Art 189) This is the most dangerous crime in Chapter XVII o f Vietnamese Penal Code As a consequence, penal sanctions imposed on this crime are the most severe Term o f imprisonment can be up to 15 years This shows the fact that íịrest is considered as the most important natural resource in Vietnam Crime can be committed through acts o f illegal buraing, dealing with specimens o f plant species, cutting down a range o f trees, etc Detriments o f crime can be íịrest flame, loss of trees in a large area o f the íbrest, damage for special íbrest, etc Crirae is committed intentionally Comparing with Swedish legislation on environmental crimes, it can be seen that in contrast to Vietnamese law there are no speciíic provision conceming only íbrest destructive acts Some o f these acts are laid down in Section (points 4, 9, 11), Section 10 o f Chapter 29 of the Swedish Environmental Code Some others are considered in the Forest Act Thereíbre, crime of destroying íorest is provided more unitedly under the penal code of Vietnam In my opinion, all acts conceming destroying íịrest should be considered as an environmental crime and provided only in the Swedish Environmental Code, instead o f being in different laws as they aie now 3.2.2.6 Violating provisions on the protection of rare wild animals (Art 190) The conducts o f this crime are illegally hunting, 'lling, transporting or trading in rare wild animals protected by the Government or illegally transporting or trading in their Products For this crime, effect is not required Thereíbre, although in case the conduct has not caused detriment to such animals yet, it is still punished under Art 190 Crime is committed intentionally Like Vietnamese penal law, the Swedish Environmental Code also provides such acts in Art point 11 and Art 10 o f Chapter 29 So, they both consider rare wild animals as a very important element to keep ecological balance 3.2.2.7 Violating the special protection of natural reserves (Art 191) Crime consists o f acts that violate rules conceming the use, exploitation natural conservation zones, national gardens, and zones o f natural relics of other natural places under the special protection established by the State Similarity, these acts are also provided in Chapter 29 Art points 2, 3, of the Swedish Environmental Code However, crime under V ietnam eseiaw is required the effect while it is not under Swedish law Moreover, this crime is committed intentionally under Vietnamese law but it can be committed through intent or negligence according to the Swedish Environmental Code 50 Besides the similarities and differences in the content o f each provision on specific crime as analyzed above, there are some more differences between them as follows: First, in comparison with Swedish enviromnental penal law, Vietnamese criminal law does not consider the act o f handling a chemical product or a product that contains or is treated with a chemical product as an environmental crime I personally think these dangerous acts should be criminalized because it is increasingly happening and causing danger for human health and the environment According to Arts 182, 183, 184 o f the Penal Code, only act o f discharge o f toxic substances causing environmental pollution The rem aining acts, such as: m anufacture, Processing, treatm ent, packaging, storage, transport, destruction, sale, transfer and similar procedures that not comply with rules on the protection o f the environment Therịre, those acts should legally be considered as an environmental crime Second, unlike Swedish law, under Vietnamese penal law some activities concerning vvaste, such as acts provided in Section 6; Section points 24, 27; Section points 7, 8, not stipulated The reason for this lack is that some o f such acts causing pollution are regulated as crimes o f causing environmental pollution under Art 182, 188, 184 o f the Penal Code of Vietnam Some others are now considered as administrative violations To sum up, although there are some acts that provided in Swemsh environmental criminal law but not in Vietnamese law or vice versa, is highly appreciated that the two penal law systems also penalize environmentally hazardous activities that is at the moment commonly and seriously causing detriment to human health and the environment 51 Supplement A THE PENAL CODE OF THE SOCIALIST REPUBLIC OF VIETNAM Chapter XVII - Environm ental crimes Article 182 Causing airpollution Any person who releases smoke, dust, toxic gas or other hazardous elements into the air (atmosphere) exceeding the permissible level, or who committed such act after having been punished with an administrative as prescribed in the decision o f the State competent authority and thereby causes serious consequences, shall be punished with a fíne o f not less than VND 10 millions but not more than VND 100 millions, probation for not more than years or imprisonment for not less than months but not more than years If the consequences are very serious, the offender shall be punished with imprisonment for not less than years but not more than years If the consequences are extremely serious, the offender shall be punished with imprisonment for not less than years but not more than 10 years The offender may additionally be punished with a fine o f not less than VND millions but not more than VND 50 millions, and may also be prohibited from assuming certain offices, practicing certaiii proíessions of doing certain businesses for not less than year but not more than years Article 183 Water Yollution Any person who discharges oil, lubricant, huzardous chemical substances or radioactive agent exceeding the permissible level, waste, dead bodies of animals or plants, đangerous bacterium, micro - bacterium or hazardous parasite (that may cause contagious diseases) or other hazardous elements, and thereby causes serious consequences, or who committed such act after having been punished w ith an administrative penalty for this act but wantonly refused to take the pollution counter measures as prescribed in the decision o f the State competent authority, shall be punished with a fme of not less than VND 10 millions but not more than VND 100 millions, probation for not more than years or imprisonment for not less than inonths but not more than years If the consequences are very serious, the offender shall be punished with imprisonment for not less than years but not more than years If the consequences are extremely serious, the offender shall be punished with imprisonment for not less than years but not more than 10 years The offender may additionally be punished with a fíne o f not less than VND millions but not more than VND 50 millions, and may also be prohibited from assuming certain offíces, practicing certain professions or doing certain businesses for not less than year but not more than years Article 184 Land Pollution Any person who buries or discharges toxic substances into land exceeding the permissible level after having been punished with an administrative penalty for this act but wantonly refused to take the pollution 52 counter measures as prescribed in the decision o f the State competent authority and thereby causes serious consequences, shall be punished with a fme o f not less than 10 millions but not more than VND 100 millions, probation for not more than years or imprisonment for not less than months but not more than years If the consequences are very serious, the offender shall be punished with imprisonment for not less than years but not more than years If the consequences are extremely serious, the offender shall be punished with imprisonment for not less than years but not more than 10 years The offender may additionally be punished with a fine o f not less than VND millions but not more than VND 50 millions, and may also be prohibited from assuming certain offices, practicing certain professions or doing certain businesses for not less than year but not more than years Article 185 Illegal Im port o f Technology, Machine, Equipment, Waste or Substances Which F ail To M eet Environment Protection Standards Any person who imports or allows the import o f technology, machine, equipment, chemical or biological Products, hazardous substances radioactive agent or waste which fail to meet the environmental protection standards after having been punished with an administrative penalty for this act and thereby causes serious consequences, shall be punished with a fine o f not less than VND 10 millions but not more than VND 100 điillions, probation for not more than years or imprisonment for not less than months but not more than years If the consequences are very serious, the offender shall be punished with imprisonment for not less than years but not moie than years If the consequences are extremely serious, the offender shall be punished with imprisonment for not less than years but not more than 10 years The offender may additionally b punished with a fĩne o f not less than VND millions but not more than VND 10 millions, and may also be prohibited from assuming certain offices, practicing certain professions or doing certain busincsses for not less than year but not more than years Article 186: Spread fìf dangernus diseases to human beìngs Any person who cairies out any o f the follow»ng acts resulting in the spread o f dangerous diseases to human beings shall be punished with imprisonment for not less than year but not more than years: a Taking animals, plants, their Products or other articles that could spread dangerous disease to human beings out o f the area where such disease is spread: b Imports or allovvs the import into Vietnam o f animals, plants or their products carrying the germs o f the dangerous disease that could spread to human beings: c Committing other acts resulting in the spread o f dangerous diseases to human beings If the consequences are very serious, or extremely serious, the offender shall be punishes with imprisonment for not less than year but not more than 12 years The offender may additionally be punished with a fme o f not less than VND 10 millions but not more than VND 100 millions, and may also be 53 prohibited from assuming certain offíces, practicing certain professions or doing certain businesses for not less than year but not more than years Aríicle 187 Spread o f Dangerous Anim al or Plant Dìseases Any person who carries out any o f the following acts resulting in the spread o f dangerous animal or plant diseases, and thereby causes serious consequences, or who committed such act after having been punished with an administrative penalty for this act, shall be punished with a fme o f not less than VND 100 millions but not more than VND 100 millions, probation for not more than years or imprisonment for not less than months but not more than year a Taking animals, plants, their products or other articles carrying the germs o f the disease in or out o f the area where circulation o f such objects are restricted; b Imports or allows the import o f animals, plants or their Products into Vietnam in violation o f the quarantine law ' c Committing other acts resulting in the spread o f dangerous animal or plant diseases If the consequences are very serious, or extrem ely serious, the offender shall be punished with imprisonment for not less than years but not more than years The offender may additionally be punished w ith a fme o f not less than VND millions but not more than VND 50 millions, and may also be prohibited from assuming certain offices, practicing certain professions or doing certain businesses for not less than I year but not m ore than years Article 188 Destroying Aquatic Products Any person \vho violates the provisions on the protection o f aquatic products in any o f the following cases, causing serious consequences, or who committed such act after having been punisheđ w ith an administrative penalty for this act or convicted for this crii ne but whose criminal record has not been cleared, shall be punished with a íine o f not less than VND 10 millions but not more than VND 100 millions, probation for not m ore'than years or imprisonment for not Iess than months but not more than years a Exploiting or destroying aquatic products by using chemical or hazardous substances, electric cuưent or other prohibited tools or methods b Exploiting rare aquatic Products in the íbrbidden area, during the breeding period o f some aquatic species or during other íorbidden periods c Exploiting rare aquatic species protected by the Government; d Destroying habitant places o f rare aquatic species protected by the Government; e Violating other provisions on the protection o f aquatic products If the consequences are very serious, or extremely serious, the offender shall be with a fine o f not less than VND 50 millions but not more than VND 200 millions or imprisonment for not less than years but not more years The offender may additionally be punished with a fme o f not less than VND millions but not more than VND 20 millions, and may also be prohibited from assuming certain offices, practicing certain professions or doing certain businesses for not less than year but not more than years Article 189 Desiroyỉng Forest 54 Any person who illegally bums, damages or commits other act of destroying íbrest, and thereby causes serious consequences, or who committed such act after having been punished with an administrative penalty for this act, shall be íinished with a fme o f not less than VND 10 million but not more than VND 100 million, or probation for not more than years or imprisonment for not less than six months but not than years Those falling under any o f the following circumstances shall be punished with imprisonment for not less than years but not more than 10 years a Commits the act in an organized group o f persons: b By abusing his/her power or position or abusing the name o f a State agency or a social organization c Destroying or damaging forest in a very large area; d Cutting or damaging rare plants protected by the Government; e Causing very serious consequences Those falling under any o f the following circumstances shall be punished witk mprisonment for not less that years but not more than 15 years; a Destroying íịrest in an extremely large area; b Destroying the protective íịrest or special íòrests; c Causing extremely serious consequences The offender may additionally be punished with a fme o f not leẩs than VND mullions but not more than VND 50 millions, and may also be prohibited from assuming certain offices, practicing certain professions or doing certain businesses for not less than year but not more than years Article 190 Violating theprovisions on protection o fra re wiìd animals Any person who illegally hunts, kills, transports or trade in rare wild animals protected by the Government or illegally transports or Irades in their products, shall be punished with a fme o f not less than VND million but not more than VND 50millioii, or 11011 custodiíil rcformation for not more than years or imprisonment for not less than months but not more than years Those falling under any o f the following circumstances shall be punished with imprisonment for not less than years but not more than years a Commits the act in an organized group o f persons b By abusing his/her power or position; c By using prohibited hunting tools or methods d Hunting in the prohibited areas or periods; e Causing very serious consequences or extremely serious consequences The offender may additionally be punished with a fine o f not less than VND millions but not more that VND 20 millions, and may also be prohibited from assuming certain offices, practicing certain professions of doing certain businesses for not less than year but not more than years Article 191 Violating the specỉalproíecíion o f naíural reserves Any person who violates the provisions conceming the use, exploitation natural conservation zones, national gardens, zones o f natural relics o f other natural places under the special protection by State, after having been punished with an administrative penalty for this act and thereby causes serious consequences, shall be punished with a íĩne o f not less than VND 55 millions but not more than VND 50 millions, or probation for not more than years, or imprisonment for not less than months but not more than years If the consequences are very serious or extremely serious, the offender shall be punished with imprisonment for not less than years but not more than years The offender may additionally be punished with a fine o f not less than VND millions but not more than VND 20 millions, and may aJso be prohibited from assuming certain offices, practicing certain professions or doing certain businesses for not less than year but not more than years 56 Bibliography In Englỉsh Liturature Barbara Rhodhe: Is Criminal Law an Appropriate Tool to Prevent and Limit Environmental Damages and Technological Risks? European Centre for Reseach and Documentation in Social Sciences, Vienna 1989 BFU and Max Planck Institute for Foreign and International criminal law: Organised environmental crime in the EU M ember States Kassel (Germany) 2003 Erland Marald: The BT Kemi Scandal and the Establishm ent o f the Environmental Crime Concept Joumal o f Scandinavian Studies in Criminology and Crime Prevention, Vol 2,2001 European Commission: Environmental crime at http://www.europa.eu.int 2004 European Commission: Commission will support M em ber States in the íĩght against enviroiimental criine, IP/01/358 at http://www.europa.eu.int 2004 Helena Du Rees: Can Criminal Law Protect the Evironment? Joumal o f Scandinavian Studies in Criminology and Crime Prevention, Vol , 2001 Helsinky Institute for Crime Prevention and Control, affiliated w ith the United Nations: Criminal Law and the Environment - Proceedings o f the European Seminar held in Lauchhammer, Land Brandenburg, Germany, 26­ 29 April 1992, Forssa 1992 International society o f social defence: The movem ent o f Social Deíence, the Protection o f the environment and Fundamental Rights, Paris (France) 1991 Lars Emanualsson Korsell: Big Stick, Little Stick: Strategies for Controlling and Combating Environmental Crime .ĩoumal o f Scandinavian Studies in Criminologv and Crime Prevention, Vol , 00 57 Madeleine Lilliehook Jacobsson: Sweden, Final Report (15-09-0.3) on “Criminal Penalties in EU Member States’ environmental law”, Reference Study Contract: ENV.B.4-3040/2002/343499/MRA/A by HUGLO LEPAGE and ASSOCIES CONSEIL in collaboration with some others Micheal Bogdan (Editor): Swedish Law in the New Millennium First edition.Norstedts Juridik, Stockholm 2000 Legal sources Council o f Europe, Convention on the protection o f the environment through criminal law, No 172,4.XI 1998, Strasbourg Council o f Europe, Council Framework Decision 2003/80/JHA o f 27 Junuary 2003 on the protection o f the environment through criminal law Council o f Europe Legal Affairs (1978), Resolution (77) 28 on the contribution o f criminal law to the protection o f the environment, Strasbourg European Committee on Crime Problems, Report on the contribution o f criminal law to the protection o f the environment, prepared by Subcommittee No XXXIV Regeringskansliets offsetcentral Stockholm, The Swedish Penal Code, 1999 Swedish M inistry o f the environment and natural resources, environmental legislation, Booket 1, Stockholm 1993 Swedish Internet Sources http://europa.eu.int/ http://europa.eu.int/comm/environment/crime/ In Vietnamese Literature Hanoi Law ưniversity: Textbook on Vietnamese Criminal Law Fourth edition, published by the People’s Security Publishing House, Hanoi 2002 Le Cam : Penalization o f environmentally hazardous activities under present Vietnamese Penal Law State and Law Review, Vol 6, 2001 Le Dang Doanh: Criminal liability under Vietnamese penal law Master thesis Hanoi 2000 58 Le Hong Hanh: Theoretical and practical issues concem ing the application of criminal liability on act causing air pollution State and Law Review Vol 6, 2002 Nguyen Ngoe Hoa: The Structure o f Crime - Theory and Practice Justice Publishing Housc, Hanoi 2004 Pham Hong Hai: Can legal person be liable for com m itting crime? Jurisprudence Review Vol 6,1999 Tran Hong Ha, Duong Thanh An: Role o f environmental protection inspectors in the eníịrcement o f Chapter XVII" Environm ental Crimes" o f the Penal Code o f 1999 Environmental Protection Review, Vol 4, 2001 Tran Minh Huong, Nguyen Van Hoang, Le Trung Kien: Studying environmental crimes First edition, Labour Publishing House, Hanoi 2002 Tran Thang Loi: Legislation o f some countries concem ing corporate and individual liabilities for violating environmental law Review o f Vietnamcse People Court, Vol 7, 2004 Uong Chu Luu (ed): Commcnt on the Penal Code o f V ietnam 1999 Part II Booklet National Political Publishing House, Hanoi 2003 Vietnamese Environmental Agency and SEMA project: Quantiíication o f Penal Frames in respect o f environmental crimes under Penal Code 1999 Published by Hanoi Law University 1999 Vo Khanh Vinh: Theoretical and Practical Gounds for Environmental Crimes in the Vietnamese Penal Code o f 1999 State and Law Review, Vol 4, 2002 Vu Thu Hanh: Legislation on punishing violation in the environmental protection- shortcomings should be revised Legal Science Journal, Vol 1, 2003 Providing íield of Legal sources Vietnamese Constitution o f 1980, National Political Publishing House, Hanoi 1995 Vietnamese Penal Code o f 1985 Third edition, Publishing House, Hanoi 1997 N ational Political Vietnamese Penal Code of 1999, National Political Publishing House, Hanoi 2003 Vietnamese Law on Environmental Protection, National Political Publishing House, Hanoi 1997 59 ...HA NOI LAW UNIVERSITY LUND UNIVERSITY FACULTY OF LAW ENVIRONMENTAL CRIMES - A COMPARISON BETWEEN SWEDISH AND VIETNAMESE LEGISLATION SPECIALTY: INTERNATIONAL AND COMPARATIVE LAW CODE:... in many articles, serainars and legal documents as well It is highly appreciated that "the role o f criminal law as an appropriate to prevent and limit enviionmental damage and technological risk... animals and plaints and the beauty o f landscapes rrust be protected by all possible m eans.” It means that we should use various and effective measures and policies to prevent acts causing environmental