Criminal liability for domestic violence crimes under criminal law of vietnam

Research Purposes Base on clarification of theoretical and practical issues relating to criminal liability for domestic violence crimes under Viet Nam current criminal law, contents of

1 The necessity of the Dissertation

In recent years, domestic violence situation in Viet Nam is getting complicated, there is a tendency to increase in number and becoming more and more serious in nature and extent of the violation Domestic violence has infringed the fundamental rights of the family members, broken many families, affected the healthy and harmony development of the society

Aware of the danger of domestic violence on families and society, the Communist Party and the State has established and implemented many solutions, outstanding of which is that the enactment and implementation of the Law on prevention and control of domestic violence Among the measures

to prevent and control of domestic violence, criminal law has always played

an important role Through the provisions of violent crimes, especially when the offender and the victim are members of the same family, criminal responsibility is applied Hence, criminal law has become a sharp instrument

to combat the phenomenon of domestic violence However, the awareness of the danger of acts of domestic violence in general and domestic violence crimes in particular is still limited In addition to that, the regulations of the relationship related to domestic violence are stipulated in various different legal documents These regulations are still in general nature, have not covered all the contents related to the prevention and control of domestic violence The result is that, situation of domestic violence especially domestic violence crimes has not decreased, but tend to occur more seriously, more complicatedly Prevention and fight against domestic violence, especially domestic violence crimes has become an urgent and long term task, requiring application of multiple solutions and different measures

Practical dealing with domestic violence crimes have showed that there hasn’t been adequated and unified awareness of criminal liability This leads to limitation in the process of drafting and implementation of criminal law on domestic violence behaviors The applications of penalties are either too heavy or too light; many offenders placed on probation, certain judgments are not strictly observed Besides, the application of other forms of criminal liability has not been focused, resulting to a deduction in efficiency of the fight against domestic violence by criminal law Criminal law was no longer a weapon of deterrence, warning and punishing many potential or actual

offenders of domestic violence In other words, in this situation, criminal law has not met its social goals

Deriving from the above mentioned reasons, the study of criminal liability in the fight against domestic violence crimes has become urgent

requirement Therefore, the author has selected the subject: "Criminal liability for domestic violence crimes under criminal law of Vietnam" to be

my research for PhD dissertation

2 Research purposes and tasks

2.1 Research Purposes

Base on clarification of theoretical and practical issues relating to criminal liability for domestic violence crimes under Viet Nam current criminal law, contents of the provisions of criminal law, the inadequacies, limitations or shortcomings of the regulations and criminal liability of domestic violence crimes, the cause of the limitations and shortcomings, the dissertation has proposed solutions in order to improve the provisions of criminal law and the efficiency in application of criminal liability for domestic violence crimes

2.2 Research Tasks

Firstly, analyze theoretical aspects of domestic violence, criminal

liability in general, domestic violence crimes in particular; introduce and clarify their concepts and characteristics

Secondly, generalize situation of provisions regulating domestic

violence crimes in Vietnam's penal legislation enacted before the adoption of current Penal Code

Thirdly, assess provisions on criminal liability for domestic violence in

Viet Nam criminal law and their application in practices

Fourthly, propose orientations and solutions to improve the criminal

law and effectiveness in criminal liability’s application for domestic violence crimes in Vietnam; propose in detail on how to improve the law and legislation as well as other measures to strengthen the efficiency of criminal liability for domestic violence crimes in Vietnam today

3 Object and scope of the research

3.1 Research scope

The Dissertation will concentrate on criminal law and criminal law procedure aspects The data and statistics is used for research topics were collected from data of the People's Public Security Forces, People's Court, the magazines, the newspapers and online newspapers from 2009 to 2015

The study period: from 2009 to 2015

3.2 Research subjects

The Dissertation focuses on study of theoretical issues and practices

of criminal liability in general and criminal liability for domestic violence crimes in particular

4 Methodology and research methodology

4.1 The approach of the Dissertation

The Dissertation uses the approach of specialized criminal law and criminal procedure; historical approach; system approach, specialized and interdisciplinary social science At the same time, research on the regulation

of criminal liability, criminal liability for domestic violence crimes in recent years to offer solutions in order to improve provisions of the criminal law on domestic violence crimes

4.2 Research methodology

The Dissertation uses the research methods such as: Synthetic methods

of analysis, statistics,comparison, investigation, survey and systematized, scientific seminars, expert interviews, survey sociology questionnaire, method of analysis and forecasting….to study to clarify the theoretical issues and application of the law on criminal liability for domestic violence and solutions to improve the efficiency in application of criminal liability for domestic violence crimes

5 New scientific contribution of the research

Firstly, giving grounds, scientific basis of legal provisions on domestic

violence and criminal law on criminal liability for domestic violence

Secondly, assessing the real situation of provisions on criminal liability

for current domestic violence crimes, the limitations and inadequacies of law

and its practical application and the criminal liability for the crimes of domestic violence, the Dissertation has put forward a system of solutions contributing to the improvement of criminal law as well as its application to improve the efficiency of criminal liability for domestic violence crimes

Thirdly, contributing to the study of criminal liability and to develop

legal provisions of criminal law in the near future

6 Science and practical significance of the research

The research results of the Dissertation shall have theoretical and practical meaning, the Dissertation is the first and the overall research project

on "Criminal liability for domestic violence crimes under criminal law in Vietnam" The outcomes of the Dissertation can be applied and put into

practice to build and improve the criminal policy, criminal law, to effectively serve the fight against domestic violence crimes in the current period The Dissertation is a scientific work which is valuable reference for research, teaching, learning about domestic violence and domestic violence crimes in Vietnam today

7 The structure of the Dissertation

Besides the introduction, conclusion, list of references, the Dissertation consists of 4 chapters, as follows:

Chapter 1 Literature review

Chapter 2 General theory of criminal liability for domestic violence

crimes

Chapter 3 Real situation of provisions on criminal liability for

domestic violence crimes in existing criminal law of Viet Nam and practical application

Chapter 4 Improving provisions of criminal laws on criminal liability

for domestic violence crimes

Chapter 1 LITERATURE REVIEW 1.1 Research Overview

There are some researches in Vietnam and overseas about criminal liability in general, and criminal liability for domestic violence crimes in particular However, criminal liability for domestic violence crimes is new and complicated issue, and so far there is not yet any concreted and specialized study on criminal liability for domestic violence crimes

1.2 Assessing the researching situation concerning to the Dissertation

1.2.1 Regarding the advantages, the results of researche that the Dissertation could inherit and continue to develop

- Studies mentioned on theoretical aspect of criminal liability, such as: the concept, the basis of the criminal liability, the forms of criminal liability, they would help authors to have further analysis on the basis of the criminal liability, the forms of liability for the crime of domestic violence

- The studies which are put for reference, or were inherited highlight the nature and extent of the danger of violence in general, crimes of domestic violence in particular, which is considered the legal basis of the criminal liability for this kind of behavior

1.2.2 Matters that have not been solved thoroughly, or need to continue research

First, most studies only mention domestic violence in general and

ways, methods and means to prevent, to stop, and to push domestic violence out from social life

Second, very few works have addressed the direct criminal

liability studies for domestic violence crimes A number of works have addressed this problem but studies generally focus on conceptual, legal signs

of acts of domestic violence

Third, the mentioned studies analyse the basis of criminal liability for

the crime of domestic violence but only focusing their analysis

on its legal basis – constituent elements of crime provided corresponding in the Penal Code; they forget its factual basis, that is the

criminal acts occuring in practice Furthermore, they have not analysed the characteristics of the relationship between the subject who committed the crimes and the person abused - victim This will be further clarified by the author in this Dissertation

1.3 Theoretical basis and research methods

1 3.1 Theoretical basis of the research topic

1.3.1.1 Research questions

- The concept of violence, what is domestic violence?

- The concept of criminal liability, what is criminal liability for the crime of domestic violence?

- What is the current situation of domestic violence crimes in Vietnam?

- Which solutions to make the application of criminal liability for the crime of domestic violence to be effective?

1.3.1.2 Theoretical research

The Dissertation is done on the basis of Marxist - Leninism and Ho Chi Minh Thought, guidelines, directions and policies of the Communist Party of Vietnam on human rights, gender equality and protection of women's rights , children as well as the view of the Party and State's laws on the issue

of domestic violence in general, and the role of criminal law against crime of domestic violence in particular

1.3.1.3 Research Hypothesis

First, the criminal liability for the crime of domestic violence is a form

of legal liability, with the purpose to prevent, curb domestic violence, improve the quality of life of each individual and promoting social stability

Second, in the legislative practice of our country, the crime of domestic

violence has been stipulated in the penal code over times, but it was scattered in different chapters Therefore, it lack of systematical, specified, then it would partly affect the prevention and fight against this crime

Third, the desire to further improve the effectiveness of criminal

liability for the crime of domestic violence in the direction of: supplementing

a number of new born criminal behavior which danger to the society in the

Penal Code, proposing measures to improve the effectiveness of criminal liability’s application for the crime of domestic violence

CONCLUSIONS OF CHAPTER 1

There have been some studies that mentioned criminal liability for domestic violence crimes However, these works only at the level of conceptual or liability forms analysis, not going into the nature, characteristics, limitations and requirements of liability for the crime of high serious nature and high degree of danger as the crime of domestic violence At the same time, these researches have not come up with concrete proposals in order to contribute to the improvement of the regulations on criminal liability in general and criminal liability for domestic violence crimes

in particular In the upcoming chapters the author of this Dissertation would have tasks to clarify these issues

CHAPTER 2

GENERAL THEORY OF CRIMINAL LIABILITY FOR DOMESTIC

VIOLENCE CRIMES 2.1 Definition, base of criminal liability for domestic violence crimes

The author think that domestic violence crimes are acts dangerous to the society prescribed in the Penal Code, committed intentionally by a family member having the penal liability capacity, infringing upon the life, health, honor, dignity, freedom, property, as well as other legitimate rights and interests of other members in the family It would be meaningless if domestic

violence crimes were prescribed in the Penal Code without legal impact i.e., criminal liability Criminal liability is a category of criminal law which covers various forms of legal impact to crimes and criminals aiming at protection of social relationships preserved by the criminal law They are penalty - the most severe coercise measure applied by the State, judicial measures or even measure as penalty exemption etc In any of the above mentioned impacts, criminal liability is still a bad legal consequence suffered by offenders of

domestic violence crimes Therefrom, the definition of criminal liability for

domestic violence crimes can be understood as on form of criminal liability defined and applied to the crime of domestic violence, which represents obligations of a family member who suffers adverse legal consequences to the State for his/her criminal acts against other members of the family, under

which offenders are deprived or restricted certain rights and benefits by a judgement of the court

Article 2 of the Penal Code 1999 and Article 2 of the Penal Code 2015 stipulated that: “only those persons who have committed crimes defined by the Penal Code”, thus, offender of domestic violence crimes is a person who violates any crime of domestic violence prescribed in the Penal Code and has

to bear criminal liabilities therefor To consider whether a person is guilty or not guilty of violating the provisions of the Penal Code and penalties apply to them, the court has to determine whether or not the offenders have satisfied the constituent elements of the specific crime Constituent elements of crime are legal basis of criminal liability and one person suffers criminal liabilities for domestic violence crimes only when his/her acts satisfy all constituent elements of a crime Specifically, to distinguish between acts considered criminal and acts are not considered criminal, paragraph 4, Article 8 of the Penal Code 1999 and paragraph 4 of Article 8 of the Penal Code 2015 provided: “Acts showing signs of crime but which pose minimal danger to

society are not crimes and shall be handled by other measures”

Thus, a behavior is considered as crime if satisfied 4 legal signs i.e.,

it’s significant dangerous to society, mens rea, unlawful and punishable Constituent elements of crime are synthesize of common/general specific characteristics of a particular crime defined in the penal law

The conviction of someone of offenses under the Penal Code and forcing them to bear criminal liability can only be based on a legal basis that are constituent elements of crime Constituent elements of crime includes 4 elements, not separate existence, but are divided as follows: the object of the crime, the objective of the crime, the subject of the crime, the subjective of the crime In their unity, the four factors mentioned above fully reflect politic – social nature and contents of the crime A notable point is that the Penal Code 2015 has added a group of new subject of crime that are trade legal entity, however, it is no way being subject of domestic violence crime, so later on we will not mention therefor

The compulsory legal signs required in alll constituent elements of crime include: dangerous act to the society which is objective aspect of crime; guilty mind (mens rea) which is subjective aspect of crime; perpetrator is at

the ages subject to penal liability and having penal liability capacity which are necessary requirements to subjects of crime

The signs are not required in all constituent elements of crime include: dangerous consequences for sociaty; place of crime; time to commit crime; instruments of crime; criminal motives; level of crime etc these signs may

be required for some certain crimes but are not mandatory for all crimes

Legal basis of criminal liability for domestic violence crimes is similar

to those of general crimes, it also stems from the guilty acts and constituent elements of domestic violence crimes

The Penal Code has divided crimes into groups of offences basing on different groups of social relations protected by criminal law These groups are stipulated in different chapters of the Penal Code with specific constituent elements of crimes

Constituent elements of domestic violence crimes are scattered in various chapters of the Penal Code, with 38 articles of the Penal Code 1999 and 42 articles under the Penal Code 2015 Though, the Penal Code has no separate chapter for the crime of domestic violence, but to facilitate the research, based on objective elements of the crime, from personal point of view, the author of the dissertation has divided specific offenses (38 related offenses) into groups of physical trespassing, sexual abuse, spiritual infringement, infringing upon democratic freedom, ownership rights, marriage and family regimes and other crime groups

2.2 The forms of criminal liability for domestic violence crimes

For domestic violence crimes, forms of criminal liabilities are expressed mainly through the provisions on penalties to be defined in each specific offense

2.2.1 Penalty – basic and main form of criminal liability for domestic violence crimes

Penalty is an important measure used by the State to fight against crimes It is one of strict enforcement measures applicable to person or legal entity who committed crimes in general and in particular domestic violence crimes

2.2.2 The forms of punishment applied to domestic violence crimes under criminal law of Vietnam

Due to the complexity and diversity nature of domestic violence crimes, the punishment prescribed for the crime is also diverse and of differen severity levels: the most severe punishment is the death penalty and warning is the most gentle one In addition to the main punishment for the crime of domestic violence, there are certain supplementary forms of punishment

The principle penalties provided to the respective offenses include: warning, fine, non-custodial reform, termed imprisonment, life imprisonment, death pelnaty Additional penalties include: Ban from holding certain posts, practicing certain occupations or doing certain jobs; Ban on residence; Probation; Confiscation of property; Fine, when it is not applied as a principal penalty;

2.2.3 Immunity from criminal liability, exemption of punishment - other forms of criminal responsibility for domestic violence offences

2.2.3.1 Immunity from criminal liability

It’s quite common that the statutory exemption of criminal liability is applied to domestic violence crimes due to their characteristic that family members often have emotional, psychological bonds between themselves in addition to guilty acts

2.2.3.2 Exemption of punishment

There are different in pelnaty range between categories/groups of domestic violence crimes prescribed in the Viet Nam Penal Code 1999 and the Penal Code 2015 Analyzing provisions of the existing criminal law could see that penalty for groups of physical abuse crimes in domestic violence offences is very high because they may cause great danger and harm to family members as well as to society Therefore, the criminal policy of our State towards offenses in this group is extreme strict As for the group of offences infringing/harming to spirit, the danger caused is at lower level; hence, punishment to this group is less severe compared to groups of physical harm or sexual abuse crimes