CRIMINAL LAW

LLM. Bui Doan Danh Thao

OBJECTIVES
• What is criminal law and its nature?
1

• What is a crime and its features?

2

• How many types of crime are there?

3

• How will an individual be punished in case of

4 committing a crime?
2
1. WHAT IS CRIMINAL LAW AND ITS NATURE?

Criminal law is a branch of law in the Vietnamese legal

system consisting of legal norms enacted by the state
which define:
1. Conducts prohibited by the state (crimes) because of
their threat and harm to pubic safety and welfare; and
2. Punishments to be imposed for such conducts.

3
WHAT DOES CRIMINAL LAW REGULATE?

Which conducts are Punishments that can be

considered as a crime and imposed for crimes
prohibited by the state
4
WHO WILL CRIMINAL LAW APPLY
TO ?

Either or both

Individuals Organisations
5
Criminal law will apply to both individuals and
organisations
WHICH CASES WILL CRIMINAL LAW APPLY TO ?
( ARTICLE 5, AND 6 THE CRIMINAL LAW 2015)

All criminal acts

conducted within
Vietnamese territory

Some criminal acts

conducted outside of
Vietnamese territory
Particularly, in the following cases:
1. Offenders are Vietnamese
2. Victims are Vietnamese 6
3.Crimes that happened within
Vietnamese air or sea territory
WHAT IS CRIMINAL LAW AND ITS
NATURE?
Position in
Vietnamese legal • A branch of law
system

• Defines crimes
Contents
• Regulates punishments for crimes

• Individuals
Who it applies to
• Organisations

Which cases it • All criminal acts within Vietnam 7

applies to • Some criminal acts outside of Vietnam
COMPARISON: CRIMINAL LAW &
ADMINISTRATIVE LAW
Criminal law Administrative law
Position in Vietnamese
A branch of law
legal system
 Regulates organisation, establishment of state
 Defines conducts threating administrative organs
and harming social safety
 Regulates assignment of tasks and duties
and welfare considered as
between state organs
crimes and prohibited by
the state  Regulates how higher state organs direct
lower state organs to implement laws
Contents  Regulates management of state and its
matters
 Regulates supervision and inspection of
 Regulates punishments for implementation of law
crimes
 Defines administrative violations and
 Regulates handling administrative violations

Subject of violations Individuals and organisations 8

Scope of application to Violations conducted within

Violations conducted within Vietnam
violations or outside of Vietnam
OBJECTIVES
• What is criminal law and its nature?
1

• What is a crime and its features?

2

• How many types of crime are there?

3

• How will an individual be punished in case of

4 committing a crime?
9
2. WHAT IS A CRIME AND ITS FEATURES?
( ARTICLE 8, THE PENAL CODE 2015)

A crime is an act:
1. Dangerous to society, prescribed in the penal code,
2. Committed intentionally or unintentionally by a person having
penal liability capacity or an organisation,
3. Infringing on public safety and welfare.

10
2. WHAT IS A CRIME AND ITS FEATURES?
( ARTICLE 8, THE PENAL CODE 2015)

Dangerous to
the society

Punishments will Defined in the

be imposed criminal law
Crimes
=
Acts

Faulty illegal

Committed by a person 11
having penal liability
capacity or an
 CRIMES = FAULTY ACTS
(ARTICLE 10 AND 11, THE PENAL CODE 2015)
Committed intentionally
1. The offenders are aware that
their acts are dangerous to
society, and foresee the
consequences of the acts, but still
wish the consequences to occur
2. The offenders are aware that
their acts are dangerous to
society, foresee the
consequences of the acts, and
don’t wish but consciously
allow the consequences to occur
Committed
unintentionally
1. The offenders foresee that
their acts may harm society but
think that the consequences
shall not occur or can be
warded off
2.The offenders don’t foresee
that their acts may harm
society, but they must have 12
foreseen or did foresee.
EXAMPLES OF FAULTY ACTS
Direct intention Indirect intention

Vi Van Hai killed 4 people in a family even Thuy Lieu killed her husband by throwing
Thuyand
petrol Lieua killed
paperher husband
firing byhusband’s
into her pouring
though they tried to escape
petrol and lighting a fire
bed for in her husband’s bed
a caution
Unintention due to over confidence Unintention due to negligence

13
Linh changed a gas boiler in his hotel instead
Quyet Thang stuffed coal into his 1 year old
of waiting for professionals and caused an
nephew’s mouth to stop him crying
explosion killing 3 people
SUMMARY: FAULTY ACTS
Intentional acts Unintentional acts

Unintentional
Unintentional due
Type Direct intention Indirect intention due to
to over confidence
negligence

Aware that their acts are dangerous to

society Don’t foresee
Foresee that their
that their acts
Cognition acts may harm
may harm
society
Foresee the consequences of their acts society

Don’t wish but Think that the

Wish the Must have
consciously allow consequences shall
Guilty mind consequences to foreseen or did
the consequences not occur or can
occur foresee
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to occur be warded off
2. WHAT IS A CRIME AND ITS FEATURES?
( ARTICLE 8, THE PENAL CODE 2015)

Dangerous to
the society

Punishments will Defined in the

be imposed criminal law
Crimes
=
Acts

Fault illegal

Committed by a person 15
having penal liability
capacity or an
 PENAL LIABILITY CAPACITY
(ARTICLE 12 AND 76, THE PENAL CODE 2015)
Subjects Penal liability capacity to crimes
From full 16 years old Bear the liability for all crimes
Bear the liability for:
- Very serious crimes
From full 14 to under 16 - Particularly serious crimes
years old Regulated in the following articles:
123, 134, 141 – 144, 150 – 151, 168 – 171, 173,
178, 248 – 252, 265 -266, 286 – 287, 289 – 290,
Individuals 299, 303 and 304
Under 14 years old
Unable to cognise and
control their acts due to Not bear the liability
mental diseases or other
diseases while they
commit a crime
Bear the liability for the crimes
Only commercial legal regulated in the following articles:
Organisations 16
persons 188 – 196, 200, 203, 209, 210 – 213, 216, 217,
225 – 227, 232 – 239, 242 – 246, 300 and 324
SUMMARY: HAVING PENAL LIABILITY
CAPACITY

 Individuals
0 16

14 Age

No liability Liable for very and Liable for all

particularly serious crimes crimes
regulated in some specific
NOTE: articles of the criminal code

Individuals who are unable to cognise or control their acts due to mental or other
diseases while they commit a crime  No liability

 Organisations 17

Only commercial legal persons bear the liability for the crimes regulated at
some specific articles of the criminal code
SUMMARY:
AN ACT IS CONSIDERED AS A CRIME WHEN IT HAS ALL ELEMENTS
DESCRIBED BY LAW FOR SUCH CRIME (ELEMENTS OF CRIMES) INCLUDING:

• Threatening or harming specific interests

Object protected by criminal law

• The act and its consequences must be

Physical elements described in criminal law

• Conducted by individuals having penal

Subject liability capacity or organisations who
meet all the features described by law

• Conducted due to a guilty mind, motive18

Mental elements or purpose as required the law
EXAMPLES

Article 168.- Plundering property

1. Those who use force or threaten to use Article 171.- Property robbery by
immediate force or commit other acts thus snatching
making resistance futile for persons being 1. Those who rob other persons of their 19
attacked in order to appropriate property shall be property by snatching shall be sentenced to
sentenced to between three and ten years of between one and five years of imprisonment.
imprisonment.
ACTS HAVING ALL ELEMENTS OF A CRIME BUT
NOT CONSIDERED AS A CRIME

Conducted in urgent
circumstances
(Article 23, the penal code 2015)

Perform orders of
Legitimate defence
supervisors and commanders
(Article 22, the penal code 2015)
(Article 26, the penal code 2015)

Risks in research, Infliction of bodily harm

experiment, and application while capturing criminals20
of technological advances
(Article 24, the penal code 2015)
(Article 25, the penal code 2015)
OBJECTIVES
• What is criminal law and its nature?
1

• What is a crime and its features?

2

• How many types of crime are there?

3

• How will an individual be punished in case of

4 committing a crime?
21
3. HOW MANY TYPES OF CRIME ARE
THERE?
(ARTICLE 9, THE PENAL CODE 2015)

Based on the nature and extent of danger to society, crimes are

classified into:

Particularly
Less serious Serious Very serious
serious
crimes crimes crimes
crimes

Cause no Cause great Cause severe Cause

great harm to harm to harm to exceptional
society society society harm to society

From over 15 to
Maximum 3 From over 3 From over 7 to 20 years of or life
years of to 7 years of 15 years of imprisonment, or
imprisonment imprisonment imprisonment capital
22
punishment
 SUMMARY: TYPES OF CRIME

3 years of 15 years of
imprisonment imprisonment

7 years of
imprisonment
Less serious

Serious

Very serious
23

Particularly serious
OBJECTIVES
• What is criminal law and its nature?
1

• What is a crime and its features?

2

• How many types of crime are there?

3

• How will an individual be punished in case of

4 committing a crime?
24
AIMS:HOW WILL AN INDIVIDUAL BE PUNISHED IN
CASE OF COMMITTING A CRIME?

 What are the principles of handling criminal violations?

 Who will be punished for committing a crime?

 What is the time limit for examination of penal liability?

 How many penalties are there?

 How will juvenile offenders be punished for committing a

crime?
25
PRINCIPLES OF HANDLING CRIMINAL VIOLATIONS
(ARTICLE 3, THE PENAL CODE 2015)

1. All crimes: - Detected timely

- Handled promptly, strictly and fairly.
2. All offenders: - Treated equally before the law
3. Penalise severely:
 Conspirators, ringleaders, commanders, die-hard opposers, wrong-doers,
hooligans, dangerous recidivists and those who have abused their positions and
powers to commit crimes
 Those who have committed crimes with treacherous ploys, in an organized and
professional manner, with intention to cause serious consequences.
4. Tolerant:
 Those who make confessions, make honest declarations, denounce accomplices,
26
redeem their faults with achievements, show repentance, voluntarily right
themselves or make compensation for damage they have caused.
PRINCIPLES OF HANDLING CRIMINAL VIOLATIONS
(ARTICLE 3, THE PENAL CODE 2015)

5. Impose penalties lighter than imprisonment or hand over to organizations

or families for the supervision and education:
For first-time offenders of less serious crimes
6. Persons sentenced to imprisonment:
 Compelled to serve their sentences in detention camps,
 Labor and study so as to become useful to society;
 May be subject to commutation of their penalties, if they make marked
progress.
7. Persons who have completely served their sentences:
 Given conditions to work and live honestly, to integrate themselves into the
community.
27
 Their criminal records shall be wiped when they fully meet the conditions
prescribed by law.
AIMS:HOW WILL AN INDIVIDUAL BE PUNISHED IN
CASE OF COMMITTING A CRIME?

 What are the principles of handling criminal violations?

 Who will be punished for committing a crime?

 What is the time limit for examination of penal liability?

 How many penalties are there?

 How will juvenile offenders be punished for committing a

crime?
28
WHO WILL BE PUNISHED FOR COMMITTING A CRIME?

1. Those who committed crimes in a situation which is not

exemptional from criminal liabilities (Unexpected event – article
20, the penal code 2015)
and
2. Those who are not exempted from criminal liabilities
regulated in article 29, the penal code 2015

Individuals
Who are able to cognise and control their acts Organisations
while they commit a crime

From full 14 to Only commercial

under 16 years old From full 16 years legal persons
(only very and old and above (Only specific crimes 29
particularly serious
(All crimes) regulated at the penal
crimes regulated at some
code)
specific articles)
AIMS:HOW WILL AN INDIVIDUAL BE PUNISHED IN
CASE OF COMMITMENT OF A CRIME?

 What are the principles of handling criminal violations?

 Who will be punished for committing a crime?

 What is the time limit for examination of penal liability?

 How many penalties are there?

 How will juvenile offenders be punished for committing a

crime?
30
TIME LIMIT FOR EXAMINATION OF PENAL LIABILITY OF AN
OFFENDER (ARTICLE 27, THE PENAL CODE 2015)

Less serious
5 years
crimes

Serious crimes 10 years

Very serious
15 years
crimes

Particularly
20 years
serious crimes
31
Note:
The time limit is not applicable for crimes listed at Article 28, the penal code 2015
AIMS:HOW WILL AN OFFENDER BE PUNISHED
IN CASE OF COMMITTING A CRIME?
 What are the principles of handling criminal violations?

 Who will be punished for committing a crime?

 What is the time limit for examination of penal liability?

 How many penalties are there?

 How will juvenile offenders be punished for committing a

crime?
32
PENALTIES CAN BE IMPOSED ON
OFFENDERS
(ARTICLE 32 AND 33, THE PENAL CODE 2015)

Principle penalties Additional penalties

Note:
Only one principal penalty will be imposed for one crime
but one or more additional penalties may be imposed for
one crime. 33
 Principle penalties

Individuals Organisations

34
PRINCIPLE PENALTIES FOR INDIVIDUAL OFFENDERS
(ARTICLE 32.1, THE PENAL CODE 2015)

Caution/warning Fine None-custodial

reform

35

Expulsion Fixed term or life Death penalty

imprisonment
PRINCIPLES OF APPLICATION OF
PRINCIPLE PENALTIES
Caution • Less serious crimes involving extenuating
(Article 34) circumstances but not subject to penalty exemption

• Principle penalty: Less serious and serious crimes,

or very serious crimes infringing on economic or
Fine
administrative management, or public order
(Article 35) • Additional penalty: Corruption or drug – related
crimes

None – • Less serious or serious crimes but the offenders

custodial have stable jobs and clear places of residence
reform • The sentenced persons will perform some duties
(Article 36) and be deducted 5 - 20% of incomes monthly

36
Expulsion • Applied for foreigners as a principle or additional
(Article 37) penalty
PRINCIPLES OF APPLICATION OF
PRINCIPLE PENALTIES
• Any crimes
Fixed term • Term: from 3 months to 20 years
imprisonment • Not applicable for individuals who committed less
(Article 38) serious crimes the first time and have a fixed
residence

Life • Particularly serious crimes but not sentenced to

imprisonment death
• Not applicable for juvenile offenders
(Article 39)

• Particularly serious crimes

• Not applicable for juvenile offenders, pregnant
Death penalty women, women nursing their children under 36
months, persons who are full 75 years old and
(Article 40) above, and corruption offenders who are sentenced37
a death penalty but have returned at least 1/3 of
corrupted property.
 Principle penalties

Individuals Organisations

38
PRINCIPLE PENALTIES FOR ORGANISATIONS
(ARTICLE 33.1, THE PENAL CODE 2015)

Fine Suspension of Permanent

operation shutdown

39
PENALTIES CAN BE IMPOSED ON
OFFENDERS
(ARTICLE 28, THE PENAL CODE 1999)

Principle penalties Additional penalties

Note:
Only one principal penalty will be imposed for one crime
but one or more additional penalties may be imposed for 40
one crime.
 Additional penalties

Individuals Organisations

41
ADDITIONAL PENALTIES FOR INDIVIDUALS
(ARTICLE 32.2, THE PENAL CODE 2015)

Ban from holding certain Ban on residence Probation

posts, practicing certain
occupations or doing
certain jobs

42
Confiscation of property Deprivation of some civil Fine and expulsion if
rights they are not applied as
principle penalties
ADDITIONAL PENALTIES FOR ORGANISATIONS
(ARTICLE 33.2, THE PENAL CODE 2015)

Ban from operating in Ban from capital Fine if it is not applied as

certain fields mobilisation principle penalties

43
AIMS: HOW WILL AN OFFENDER BE PUNISHED IN
CASE OF COMMITTING A CRIME?

 What are the principles of handling criminal violations?

 Who will be punished for committing a crime?

 What is the time limit for examination of penal liability?

 How many penalties are there?

 How will juvenile offenders be punished for committing a

crime?
44
PENALTIES TO JUVENILES UNDER 18 YEARS OLD
(ARTICLE 98, THE PENAL CODE 2015)

Caution Fine

None- Fixed term

custodial imprisonmen
reform t
45
 PRINCIPLES OF APPLICATION
Penalties Apply to who
Caution All juvenile offenders
From full 16 to under 18 years old and
Fine
having income or assets
1. Offenders who are from full 14 to under
16 years old and committed very serious
None – crimes
custodial 2. Offenders who are from full 16 to under -
reform 18 years old and committed less serious
and serious crimes, or unintentionally
very serious crimes
From full 16 to under 18 years old
Level of penalties
-
Not exceeding half of fine level provided
by law
- Not deduct income
Not exceeding half of the term provided
by law
- Not exceeding 18 years of imprisonment
if life imprisonment or death penalty is
applicable for that crime, or

Fixed term - Not exceeding ¾ of the prison term

imprisonment - Not exceeding 12 years of imprisonment
if life imprisonment or death penalty is
From full 14 to under 16 years old applicable for that crime, or
- Not exceeding ½ of the prison term

46
ADDITIONAL EXEMPTION FROM CRIMINAL LIABILITY
(ARTICLE 91.2, THE PENAL CODE 2015)

Juvenile offenders can be exempted from criminal liability if the are an

accomplice who has a minor role, or meet the following requirements:

From full 14 to From full 16 to

under 16 years old under 18 years old

Have more than one Have more than one

extenuating circumstance extenuating circumstance

Voluntarily right themselves Voluntarily right themselves

Committed very serious Committed less serious or 47

crimes not listed in articles serious crimes not listed in
123, 134, 141, 142, 144, 150, articles 134, 141, 171, 248 -
151, 168, 171, 248 - 252 252
The end

48