VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES HOANG DAT NAM CRIMES ON ROAD TRAFFIC SAFETY ACCORDING TO CRIMINAL LAW FROM THE PRACTICAL TRIALS OF MILITARY COURT
Trang 1VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES
HOANG DAT NAM
CRIMES ON ROAD TRAFFIC SAFETY ACCORDING TO CRIMINAL LAW FROM THE PRACTICAL TRIALS OF
MILITARY COURTS IN VIETNAM
Major : Criminal law and Criminal Procedure law Code : 9 38 01 04
SUMMARY OF DOCTORAL THESIS IN LAW
HANOI, 2019
Trang 2The Doctoral thesis was completed at:
GRADUATE ACADEMY OF SOCIAL SCIENCES
Supervisor: Assoc Prof Dr Cao Thi Oanh
Reviewer 1: Assoc Prof Dr Tran Dinh Nha
Reviewer 2: Assoc Prof Dr Pham Van Loi
Reviewer 3: Dr Nguyen Van Diep
The doctoral thesis will be examined by Examination Board of Graduate Academy of Social Sciences at ………
The doctoral thesis can be found at:
- National Library of Vietnam;
- Library of Graduate Academy of Social Sciences
Trang 31 Hoang Dat Nam (2018), "Crimes of infringing on road traffic safety in some countries and experiences for Vietnam", Journal of Social Sciences Human Resources (1), pg 20-26
2 Hoang Dat Nam (2018), "Crimes of infringing on road traffic safety in the Penal Code 2015 and the amendment and supplement Penal Code in 2017 and some petitions", Scientific Journal of Hanoi Open University (2), pg 34-43
Trang 4INTRODUCTION
1 Rationale
In Vietnam, the situation of road traffic safety and traffic rule violations has been happening complicatedly that causes not only serious deaths, serious health and wealth losses, destabilizing social order and safety but also psychological worries for people, great concerns of state agencies According to reported data of the Traffic Police Department in 2017, there were 19,798 road traffic accidents, killing 8,089 people and injuring 16,970 people nationwide Violations of road traffic safety, which are criminally handled, have been reducing, but still accounting for a high proportion of the total crimes number The number of cases and the number of defendants which are being convicted on road traffic safety crimes tend to decrease, but the dangerous feature is increasing
The Penal Code 1999, The Penal Code 2015, The Penal Code
2015 (amended and supplemented in 2017) have amended and supplemented provisions about road traffic safety crimes However, The Penal Code 2015 (amended and supplemented in 2017) still has technical inadequacies related to the consistency between the common part and the criminal part, elements of crimes, elements of crime frames, complex crimes, penalty frameworks that affect on the implementation and application of the Penal Code provisions in practice Besides, documents explaining and guiding the application
of the law are not updated so authorities often face many difficulties
in applying road traffic law to solve those crimes
Over the time, criminal cases related to the military are increasing, including road traffic safety crimes which have a high proportion and cause significant damage to the military and affect the honor and prestige of the military The Military Courts (MCs) are the judicial bodies of the Socialist Republic of Vietnam They belong to the People's Court system (People's Court) but are held in the military and perform the function of judicial tasks according to provisions of law Within the scope of their functions, the MCs have the task of protecting socialist legislation; protecting the socialist regime and the people's mastery; protecting security, discipline and combating power
of the military; protecting the assets of the state and the people, protecting the life, health, property, freedom, honor and dignity of military servents, civil servants, workers and other citizens The MCs
Trang 5contribute to educate military, civil servants and workers to be loyal
to the country, to strictly abide by the law, army orders, to respect the rules of the commune life, to have awareness of fighting and preventing crimes and other law violations
Through the criminal trials in general and road traffic safety crimes trial in particular of the MCs in Vietnam, it shows that the provisions of the Criminal Law on those criminals group still have many loopholes that are not suitable to social development There are also dangerous behaviors for the society that arise in reality without stipulation in the Penal Code that are leading to no legal basis for settlement In the process of resolving specific cases, there are also certain limitations in determining criminal charges, in the application
of circumstances to set up penalties for punishment; in the application of extenuating and aggravating circumstances; in the application of penalty decisions The above-mentioned issues have certain impacts on the application of law provisions in the Penal Code on crimes of road traffic safety of the MCs
Therefore, the study of the topic "Crimes on road traffic safety according to criminal law from the practical trials of military courts
in Vietnam" has very important meaning both in terms of reason
treatise and practice
2 Purposes and missions of the thesis
2.1 Purposes
On the basis of studying theoretical issues about crimes on traffic safety in Vietnamese criminal law, assessing the situation of trial, finding inadequacies and problems in practical application the provisions of the Penal Code through trial activities of MCs in Vietnam Since then, the thesis propose solutions and recommendations to improve legal provisions and ensure proper application of crimes on road traffic safety
2.2 Missions
Clarifying legal concepts and characteristics of road traffic offenses; characteristics of road traffic safety crimes under the jurisdiction of the MCs; the process of development of Vietnam's criminal law from 1945 up to now regulates those crimes
Trang 6Analyzing the provisions of the Penal Code and guiding documents to clarify legal signs of specific offenses of road traffic safety
Reviewing trial results on road traffic safety crimes of the military courts in Vietnam; assessing inadequacies and limitations in applying the current Penal Code on crimes on road traffic safety; pointing out their causes
Assessing the practical determination of criminal charges and deciding penalties for crimes on road traffic safety from the practice
of MCs in Vietnam
Furthermore, proposing some recommendations and solutions to perfect the current law provisions on road traffic safety crimes
3 Objects and scope of the thesis
3 1 Objects of the thesis
The provisions of Vietnamese criminal law and some countries’
in the world on road traffic safety crimes;
Scientific and practical perspectives on the application of laws
on road traffic offenses from the practice of trial in the MCs in Vietnam
3.2 Scope of the thesis
The thesis is researched and approached under the perspective of Criminal Law; Research road traffic safety crimes, including specific crimes from Article 260 to Article 266, Chapter XXI of the Penal Code 2015, amended and supplemented in 2017 (Article 202 to Articles 207, Cahpter XIX of the Penal Code 1999) The thesis uses research data in 10 years, from 2008 to 2017 and focuses on instance and appeal criminal trial levels of military courts in Vietnam
4 Research method of the thesis
4.1 Methodology
The thesis uses dialectical materialism and historical materialism
of Marxism-Leninism; Ho Chi Minh’s ideology; guidelines and policies of Vietnamese Communist Party and the State of the Socialist Republic of Vietnam on crimes, penalties for research methodology
4.2 Research methods
Based on an interdisciplinary and multi-disciplinary approach with systematic and historical characteristics, the thesis uses many different scientific and social research methods such as: analysis
Trang 7method, systematic method, combination and statistics method, historical methods, comparative methods
5 New scientific contributions of the thesis
5.1 New contributions of view and approach
By using multidisciplinary, interdisciplinary methods in law, especially the methods of legal philosophy, sociological law, legal psychology, the thesis analyzes and clarifies the current situation of applying the provisions of the law on road traffic safety crimes, finds out the limitations of those provisions of law, the mistake on law application and their causes which are a basical results for building solutions, proposals to improve the law and to improve the efficiency
in handling those cases of the MCs in the future
5.2 General new contributions of the thesis
The thesis is an in-depth study on road traffic safety crimes By generalizing the views on road traffic safety offenses, criminal law provisions on that crimes group as well as clarifying reasonable and limited points in the process of legalization of those regulations and the process of applying those regulations in the practical trial of Vietnamese MCs, the thesis has clarified some limitations and obstacles in applying the provisions of the Penal Code and Civil Code on road traffic safety crimes in general and the practice of determining criminal charges deciding on penalties for those crimes
in particular, and point out the effects and causes of such obstacles Since then, the thesis proposes solutions and recommendations to improve the provisions of Vietnamese Penal Code on those crimes as well as improve the efficiency in trial activities on that crimes group
6 Scientific and practical meanings of the thesis
6.1 Scientific meanings
The thesis contributes to supplement and perfection the theory of offenses on road traffic safety which can be used as material for teaching, learning and scientific research in the fields of criminal law science and crime studies
6.2 Practical meanings
The thesis is the basis for legislative agencies to consider, amend, supplement and perfect the criminal law provisions on criminal offenses of road traffic safety; is the basis for agencies,
Trang 8organizations and units, especially MCs in Vietnam to apply regulations on road traffic safety crimes to achieve higher efficiency
7 Structure of the thesis
In addition to the introduction, conclusion, references and list of works related to the thesis has been published, the thesis consists of 4 chapters:
Chapter 1: Overview about research and theories
Chapter 2: Theoretical and legal matters on road traffic safety
crimes
Chapter 3: Practical implementation the provisions of the
current Penal Code on road traffic safety crimes in military courts in Vietnam
Chapter 4: Requirements and solutions to ensure proper
application of law on road traffic safety crimes
Trang 9Chapter 1 OVERVIEW ABOUT RESEARCH AND THEORIES 1.1 International studies
International authors have studied aspects related to traffic problems, traffic safety as well as conditions and causes of traffic accidents and factors that affect those crimes In this field, we can mention some articles and works of following authors:
Spolander, K: Statistics on drunk driving records related to traffic accidents; Bailey J P M (1993): Article on criminal history,
drunk driving and causing fatal traffic accidents in New Zealand;
Junger, M., West, R., & Timman, R (2001) have the article: "Crimes and risk behaviors in traffic"; Gururaj G has the article "Alcohol and road traffic accidents in South Asia”
1.2 Local studies
1.1.1 Theoretical studies
* First, the studies of legal concepts and characteristics: The research group on public safety and public order crimes, on typical signs of this group of crimes, must be included: The book
“Vietnamese Criminal Law, crimes section (chapter X)” of the
Academy of Social Sciences by Prof Dr Vo Khanh Vinh (ed), published by Social Science Publishing House in 2014; the books
“Road traffic order and safety crime - Some issues of theory and practical trial in Vietnam”, of Dr Pham Minh Tuyen published by
Youth Publishing House in 2014,
* Second, the group of books that study and comment about crimes elements and legal characteristics of each specific crime in the Penal Code, include activities of preventing road traffic accidents in
Vietnam, including: "Intensive scientific comments on Criminal Code – crimes section, Chapter VI - Crimes on public safety and public order" of MSc Dinh Van Que; the article “Chapter XIX - Crime on public safety, public order” of Dr Nguyen Duc Mai in the book:
“Scientific comments on Vietnamese Penal Code in 1999”; the book
“Scientific comments on the Penal Code 2015, by Assoc Prof Dr
Cao Thi Oanh and Dr Le Dang Doanh, etc
1.2.2 Sspecific research on road traffic safety crimes
Not may studies have discussed the determinations of criminal offenses and decisions on penalties for road traffic safety offenses These works include doctoral and master's thesis such as:
Trang 10The doctoral thesis of Law "Measures to prevent and fight against violations of regulations on controlling road traffic means in Hanoi Capital" in 2001 by Bui Kien Quoc; Master's thesis of Law
"Crimes of infringement on road traffic safety according to Vietnamese criminal law (based on data of Binh Phuoc province)" in
2013 by Tran Van Thao Master's thesis of Law "Crimes of violating regulations on controlling road vehicles from the reality of military courts in Vietnam nowadays" in 2015 by Le Ngoc Tuan
In addition, some authors studied some specific problems of those crimes, such as determining crime, determining errors: Post-
grad syllabus: “General theories on crimes determination” of Prof
Dr Vo Khanh Vinh; “Changing the definition of crimes, some theoretical and practical issues”, published in the Journal of People's Court in 2003 of Prof Dr Vo Khanh Vinh; Cao Viet Cuong “Some recommendations to improve the provisions of Article 202 Criminal Code 1999 on violating regulations on controlling road vehicles”,
Journal of People's Courts, No 4/2014; etc…
1.3 Evaluate the research situation
1.3.1 Research results that the thesis will inherit, continue to develop
The research and articles have clarified many contents related to traffic safety crimes in general, have given some concepts about crimes of infringing on order and safety of transport, or the concepts
of road traffic order or safety crimes or the concept of public order and public safety crimes However, those research only briefly touched these issues and have not specified the classification of road traffic safety crimes
After the Penal Code 2015 (amended and supplemented in 2017), the acts of those crime constitutes changed, affecting the application of legal provisions in practice There are still difficulties and limitations that need to be adjusted in accordance with the trial practice as well as the requirements of the society, even though the Penal Code has just been issued
1.3.2 Remaining issues should be continued to study in the thesis
- Clarifying legal concepts and characteristics of road traffic offenses; characteristics of those crimes under the jurisdiction of military courts in Vietnam; the development process and regulations
Trang 11of Vietnamese criminal law from 1945 to present on this crimes group
- Analyzing the provisions of the Penal Code 2015 (amended and supplemented in 2017) and guiding documents of competent agencies to clarify the legal elements of specific crimes in the group
of crimes against infringement on road traffic safety Distinguishing from other related crimes which are stipulated in the Penal Code and studying road traffic safety crimes of some countries in the world to find out the advantages that can be inherited and learned in legislative work
- Evaluating the achieved results on practice of crimes determination and penalties decisions of road traffic safety crimes from practical trial of MCs in Vietnam Finding out inadequacies and problems in practice applying the current provisions of the Penal Code on those crimes as well as those problems causes
- Raising some proposals, recommendations and solutions to improve the provisions of the law as well as to improve the effectiveness of law application in the trial of road traffic safety offenses in the future
Chapter 1 Conclusion
Trang 12Chapter 2 THEORETICAL AND LEGAL MATTERS ON ROAD
TRAFFIC SAFETY CRIMES
2.1 Concepts, elements of crimes of infringing upon road traffic safety and characteristics of those crimes under the jurisdiction of military courts in Vietnam
2.1.1 Concepts, elements of crimes of infringing upon road traffic safety
Based on the concept of crimes in general and views on crimes
of infringing upon road traffic safety, the thesis has pointed out the specific elements of road traffic safety offenses, including:
* The first element of a road traffic safety crime is a dangerous act for the society
* The second element of a road traffic safety crime is being regulated in the Penal Code
* The third element of a road traffic safety crime is a behavior of
a person with criminal responsibility
* The fourth element of a road traffic safety crime is error of crime
* The fifth element of a road traffic safety crime is being punished
Based on above elements, we proposed the following concept of road traffic safety offenses:
Crimes of infringing upon traffic safety are dangerous acts to the society, stipulated in the Penal Code, committed by persons with criminal responsibility and their mistakes, infringe upon road traffic safety, causes damage to life or serious damage to the health, property of others or property of the state and society
2.1.1.2 Crimes factors of infringing upon road traffic safety
* Object of road traffic safety offenses
* Objective aspects of road traffic safety offenses
* Subjective aspects of road traffic safety offenses
* Subjects of crimes of road traffic safety offenses
2.1.2 Crimes characteristics of infringing upon road traffic safety under the jurisdiction of military courts in Vietnam
Trang 132.1.2.1 The organizational structure and jurisdiction of military courts
Organizational structure: According to Article 50 of the Law on Organization of the People's Courts, the MCs are organized at 3 levels: The Central Military Court; Military courts of military zones and the equivalent; Regional military courts
The object of trial: MCs have jurisdiction on:
"Criminal cases where defendants are active military personnel, military servants, military workers, military officials, reserve soldiers during the time of focusing on training or checking the state of combat readiness; militia and self-defense during the time of concentrating on training or cooperating with the People's Army in fighting and serving combat; citizens are mobilized, gathered or contracted to serve in the People's Army”;
Criminal cases that defendants who are not subjects specified at Point a, Clause 1 of this Article relate to military secrets or cause damage to their lives, health, honor and dignity of active military and public soldiers defense officials, workers and employees, reserve military personnel during the period of focusing on training or checking the situation of being ready to fight or causing damage to property, honor and prestige of the People's Army or offense crime in military barracks or military areas managed and protected by the People's Army
Military courts have jurisdiction to hear all criminals occurring
in the area of martial law”
In addition, when the case has defendants and crimes that are under the jurisdiction of the Military Court and under the jurisdiction
of the People's Court as well, the trial jurisdiction is implemented:
"In case the case can be separated, the Military Court adjusts the defendants and crime under the jurisdiction of the Military Court; People's courts adjudicate defendants and crimes under the jurisdiction of the People's Courts;
If the case cannot be separated, the Military Court adjusts the whole case”
Territorial jurisdiction: the MCs adjudicate cases according to the military administrative boundaries, a military court of military zones or regional military courts adjudicate cases occurred in many provinces and cities