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
1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
2
6. 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.
7. Structure of the dissertation
Besides the introduction and conclusion, references and appendix, the
dissertation includes 4 chapters, 10 sections and sub-sections.
Chapter 1
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
3
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?
4
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 2
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
5
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 7 major penalties and 7 additional penalties
for offenders; 3 major penalties and 3 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
6
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
7
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,
do not allow any individual or organization to disturb its decision.
8
2.2. Tasks, contents and meanings of imposing penalties
2.2.1. Tasks of imposing penalties
The imposition of penalties consists of the following basic tasks:
Applying criminal liability for defendants; imposing penalties upon
defendants; selecting necessary penalties and levels within the scope of the
Penal Code; synthesizing penalties and deciding measure of executing the
penalties.
2.2.2. Contents of imposing penalties
Imposition of penalties is a stage and a content of applying the criminal
law to individualize criminal sanctions in specific criminal cases. This is a
new research direction on the application of the provisions of the criminal
law for offenders. The imposition of penalties includes the contents of
applying the criminal law and also its own contents such as: to determine
fully, accurately and objectively cases’ circumstances related to imposing
penalties; determine the validity of criminal law documents and awareness
of the provisions of the criminal law related to imposing penalties; select
criminal liability measures, punishments and specific levels corresponding
to offenders and then making a judgment.
2.2.3. The meanings of imposing penalties
2.2.3.1. Socio-political meanings
Imposition of right penalties is to protect justice, human right, the State’s
interests, as well as the legitimate rights and interests of organizations and
individuals in the criminal field, contributing to the protection of social
balance, strengthening socialist legislation, and guaranteeing social order
and discipline. This will improve the Court’s prestige in exercising the
judicial right in particular and of the judiciary in general so as to reinforce
their credibility and the people’s confidence towards the leadership of the
Communist Party of Vietnam (CPV), as a basis for improving the efficiency
and purpose of penalties, especially educating and re-educating offenders to
prevent them from re-committing crimes, and warning and deterring others.
2.2.3.2. Legal meanings
Imposition of right penalties is the first legal basis to achieve
punishment, which has important legal significance while executing
9
criminal cases. It is also the first legal basis to show the correctness and
reasonableness of criminal legal documents so as to turn offenders into
good and useful citizens who comply with the law and rules of life in order
to prevent them from re-committing crimes, achieving efficiency in
executing judgment and educating others to respect the law.
2.2.3.3. Meanings of education and prevention
Imposition of penalties has a positive meaning in preventing and
fighting against crimes. The imposition of right penalties will contribute to
reinforcing the system of criminal law, legislation and socialist legal order.
It has a profound effect in educating the people as well as deterring and
preventing new crimes. The court’s imposition of right penalties will make
the people see the correctness and strictness of the criminal law, the people
will be self-aware and voluntarily comply with the law, they are more
actively involved in preventing and combating crimes, contributing to
strengthening the socialist legal system.
2.3. Factors affecting the imposition of penalties
2.3.1. The quality of the Criminal Code and the Criminal Procedure
Code
The Penal Code (PC) and the Criminal Procedure Code (CPC) are the
major legal bases and are two important and decisive acts for all activities
of imposing penalties of the Court. The provisions of the PC and the CPC
are an important legal basis for imposing penalties and forecasting fully
cases that can occur in society; to clearly define limitations between this
offence and others to reduce mistakes and injustice in the process of
investigating, prosecuting and hearing. The high quality of the CP and CPC
will be the basis for ensuring the quality of imposing penalties.
2.3.2. The capacity of Judges and Jurors
Judges and Jurors are persons who directly adjudicate and imposing
penalties on offenders, and deciding politico-economic rights and interests
as well as the right to live of the offenders. The Judges and Jurors must
have good moral qualities, hearing skills and legal knowledge, they must
also comply with the law, have practical experiences of life to carry out
well this special proceeding. Ethical qualities and competencies of the Trial
10
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 3
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 3 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 do 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, 7 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 1 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 4
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 do
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
- Xem thêm -
.PDF 
27 
11 
78 
