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HANOI LAW UNIVERSITY

HA LE THUY

JUDICIAL MEASURES IN VIETNAMESE CRIMINAL LAW -

THEORETICAL AND PRACTICAL ISSUES

Major: Criminal law and criminal procedure Code : 9380104

SUMMARY OF DOCTORAL THESIS IN LAW

HA NOI – 2020

HANOI LAW UNIVERSITY

Scientific Supervisor: Dr Pham Manh Hung

Dr Hoang Van Hung

Reviewer 1: Dr Nguyen Tri Tue

Reviewer 2: Assoc Prof Dr Nguyen Ngoc Chi

Reviewer 3: Dr Nguyen Van Hien

The thesis will be defended at the marking commite of Hanoi Law University at the time…hour…month…year 2020

The thesis can be found at:

1) National Library

2) Library of Hanoi Law University

TO THE THESIS’ THEME

1 Ha Le Thuy (2015), Some issues on judicial methods in Vietnam's

criminal law and solutions for complementing, Journal of

Procuratorate Studies, (1), pp.56-63

2 Ha Le Thuy (2015), As to application of judicial measures in place of

penalization towards juvenile delinquency pursuant to the current criminal law in Vietnam, Journal of Human Resources Development, (4),

p 63-68

3 Ha Le Thuy (2016), Judicial measures in the Criminal Law of some countries in the world, The People’s Court Journal (4), pp.32-36

4 Ha Le Thuy (2017), Penalties and judicial measures application to

offenders in Vietnam Penal Code and related laws in number of countries, Journal of Legislative Studies (14), p.60-64, 34

5 Ha Le Thuy (2020), Evaluating provisions of the Criminal Code

2015 on supervisory, educational measures applied to offender aged under 18 in comparison with foreign law, The People’s Court Journal,

(11), p.1-8, 48

A INTRODUCTION

1 The urgency of the topic

Since the introduction of the first Criminal Code, legal institutions have been regulated and gradually ameliorated through amendments, supplements and replacements However, it can be seen that, at present, the judiciary legal institution still has problems that exist theoretically and practically, requiring in-depth research and comprehensive to resolve these issues

From the theoretical perspective, there are still different views when referring to the concept, characteristics, nature or role of judicial measures in criminal law Differences in criminal policies of each state, differences in economical, political, cultural and social characteristics of each state also lead

to the recognition and regulation of judicial measures in criminal law of different states So far, we have not built a sufficient theoretical basis for judicial remedies, have not developed a legal concept of judicial measures, neither clarified the characteristics, roles and purposes of these measures

From the perspective of criminal law, the provision of judicial measures

in addition to the penalty system contributes to the diversification of criminal handling measures, supporting legal application agencies to have a choice diverse and flexible in thoroughly handling criminals but still ensuring the effectiveness of handling However, there are still plenty of legal aspects that need to be analyzed and clarified how to bring them closer to the applied practices, thereby promoting the indispensable role of judicial measures

From a practical perspective, judicial measures are applied and contribute significantly to the fight against crime prevention In addition to the achieved results, some judicial measures, when applied in practice, have not brought into full play the effective role that lawmakers are eager to reach, even some are not yet applied in practical handling crimes

Therefore, with the requirements set forth above, the continuous systematic research of the provisions of the judicial measure on judicial measures, the expression of these measures in the existing criminal code The application of these measures in practice has profound theoretical and practical

implications That is also the reasons for us to choose the topic "JUDICIAL

MEASURES IN VIETNAMESE CRIMINAL LAW - THEORETICAL AND PRACTICAL ISSUES" as our research thesis

2 Research objectives and tasks of the thesis

2.1 The objective of the thesis

The dissertation sets out the research objectives and theoretical clarifications on the concept, characteristics and basis of the provision of judicial measures; analyze and clarify the provisions of the penal code on judicial measures to evaluate the suitability between reasoning and statutory law

Besides, the thesis also focuses on analysis and clarification of the reality

of applying judicial measures to find out restrictions, inadequacies, and evaluate difficulties and obstacles On that basis, the dissertation also sets out the goal of perfecting the law on judicial measures, discovering remedial solutions and ameliorating efficiency to be the basis for flexible application and judicial measures in the practice of criminal handling

2.2 The task of the thesis

- Research theoretical concepts, characteristics of judicial measures, analyze issues related to judicial measures to identify different concepts of judicial measures, from which construction get the scientific concept of judicial measure;

- Studying legally on provisions of the Criminal Code on judicial measures, analyzing and clarifying the history of criminal legislative provisions

on judicial measures, generalizing provisions of criminal law of some states in the world from which to compare, contrast and draw similarities and differences with Vietnam's criminal law;

- Research, analyze and evaluate the current provisions of the criminal law and the reality of the application of judicial measures in Vietnam's criminal law, point out the problems and limitations in the process of applying judicial measures;

- Research and find solutions to perfect the law, identify the factors that ensure the correct application of legal provisions on judicial measures to improve the effectiveness of the application of judicial measures in practice

3 Research subject and research scope of the thesis

3.1 Research subjects

The thesis studies the theoretical issues of judicial measures, with reference to the provisions of Vietnam's criminal law from 1945 to 2015 Criminal Code and the criminal law of a number of states in the world have regulations on judicial measures, studying the current provisions of Vietnam's criminal law and the practice of applying these measures in Vietnam, studying solutions to improve their effectiveness of the application of judicial measures

in Vietnamese criminal law

3.2 Research scope

The thesis studies the above-mentioned subjects based on the provisions

of the current Criminal Code and legal documents prescribing judicial measures

so far The thesis has studied judgments, decisions and procedures, figures whole nation and in some provinces and cities with large number of sentences

in 10 years, from 2008 until 2017 The thesis doesn’t research the reality of applying judicial measures of legal entities committing crimes Because, at the time of the study, Criminal Code 2015 was officially in effect, so no cases have been handled and therefore no actual data

4 Research methodology

The thesis is based on the methodology of dialectical materialism and historical materialism, using a combination of methods such as combining theory with practice, analysis method, evaluation methods, general methods, comparative methods, statistical methods to clarify the problem

5 Scientific and practical significance of the thesis

In terms of scientific significance, this is the first research in a comprehensive and complete judicial measures study under the doctoral thesis level The work has theoretical value, contributes to the completion of the criminal law science theory, and creates systematic theoretical issues about the legal frameworks, resolving current controversial issues or has different views

on the content of the provisions of judicial measures

In terms of practical significance, the analysis and assessment of the current situation, the causes and limitations in the application of judicial measures have practical meaning in legislative activities and the law application activities of judicial agencies, judgment enforcement agencies At the same time, the introduction of recommendations and legislative measures to improve the effectiveness of the application of these measures have practical implications for the rehabilitation and education of criminal subjects and for fighting activities prevent and fight against criminals

6 Structure of the thesis

In addition to the introduction, an overview of the research topic, the conclusion and the list of references, the content includes:

Chapter 1 General issues and criminal laws of some countries on judicial measures

Chapter 2 Judicial measures in accordance with current Vietnamese criminal law and practical application

Chapter 3 Completing laws and solutions to improve the effectiveness of the application of judicial measures

CHAPTER OVERVIEW RESEARCH TO THE THESIS

1 The research in Vietnam related to the topic

1.1 The work of research on judicial measures in general

At the level of monograph there are works: “Criminal responsibility and

punishment” of the authors Nguyen Ngoc Hoa, Le Thi Son and Pham Thi Lien

Chau; “Criminal liability and exemption from criminal liability” by the

collective of authors Le Cam, Pham Manh Hung and Trinh Tien Viet;

“Completing the provisions of the General Criminal Code in the face of new requirements of the country” by author Trinh Tien Viet; “Scientific commentary on new points of the Criminal Code 2015 (amended and supplemented in 2017)” by Nguyen Thi Phuong Hoa and Phan Anh Tuan;

“Scientific awareness of the common part of Vietnamese criminal law after the third codification” by Le Van Cam, author of the research team At the doctoral

dissertation level, there are works: “Criminal liability institution under

Vietnam's Criminal Law” by Pham Manh Hung; “Criminal responsibility for environmental crimes” by Duong Thanh An; “Major penalties for not depriving people of Vietnam's criminal law” by Nguyen Minh Khue At the

research level in the form of articles with works: “Judicial measures in the

1999 Penal Code and the completion of the Criminal Procedure Code on the order and procedures for applying measures” by Pham Hong Hai; “Penalties and judicial measures in Vietnamese criminal law” by Le Cam

1.2 The research works on each specific judicial measure

- At the dissertation level, there are constructions: “Judicial measures

applied to juvenile offenders” by Duong Thi To Nga; “Judicial measures to return properties, repair or compensate for damage according to the 1999 Penal Code” by Vu Thi Phuong At the level of the articles there are articles

such as: “Regulations of the Criminal Code and the Criminal Procedure Code

on return of property to owners and applicable practices” by Nguyen Van

Truong; “Completing the provisions on criminal liability of criminal legal

entities in the Criminal Code 2015” by Nguyen Thi Phuong Hoa

In summary, the researches and assessments of the above works are also a valuable reference source for the writer of this thesis However, the aforementioned articles have not analyzed in detail judicial measures, have not studied foreign legislative experience with provisions on judicial measures applied for legal entities to gain experience in the process of applying new measures prescribed in Vietnam's criminal law

2 Overseas research to the thesis

2.1 The work of research on judicial measures in general

At the level of monograph, there are works “Penalty Science” by Bernard Bouloc; “General Criminal Law” by Jacques Leroy; “Criminal law

curriculum, common part” by Helmut Fuchs At the thesis level, there is a

doctoral thesis “Security measures: a comparative study of criminal law of

France and Germany” by Jenny Herrmann has researched on judicial mesures

known as security measures; at the reporting level, there are the following

articles: “Safety measures in the new criminal code” by Constantin Sima;

“Punishment and other criminal measures” by Maizer Chankseliani; “Remedy and safety measures in Swiss criminal law” by Nicolas Queloz Articles stated

and analyzed criminal remedies other than penalties prescribed by the laws of the countries

2.2 The research works on each specific judicial measure

At the thesis level there is a doctoral thesis “Approach to compare

criminal liability of juveniles in French and Vietnamese criminal law” by Tran

Van Dung, which mentions and compares educational measures for with juvenile offenders between the laws of France and Vietnam At the level of the

article, there is an article: “Execution of juvenile offenders in Germany:

between a system of protection and justice” by Frieder Dunkel; “Criminal liability of French companies” by Phillipe Xavier Bender; “Swiss Penalties and Measures” by the Federal Ministry of Justice and the police, Swiss Federal

Office of Justice

Thus, from the perspective of each specific defense plan, foreign works have also studied the copyrights applied to juvenile offenders or against legal entities who have committed crimes but have not yet studied them into a cabinet, specific content about the judicial mesures

3 Evaluating the research situation related to the thesis

3.1 The research results are inherited and continue to develop by the thesis

On the basis of presenting and analyzing domestic and foreign researches related to the judicial mesures from the perspective of overall research and specific research of each measure, the thesis has shown the results that the works go ahead to be able to inherit and develop

3.2 The issues related to the thesis have not been solved or continue research

The thesis points out the contents that have not been mentioned or clarified by the previous works and need to continue researching and clarifying

in this thesis: Theoretical issues about the legal frameworks in the law Criminal law; Legislative experience of some typical countries in the world providing for judicial measures; Practical application of judicial mesures specified in Vietnam's Criminal Law; Proposal of complete solutions regulations of criminal law and solutions to ameliorate the effectiveness of applying the judicial mesures in practice

3.3 Research hypotheses

Hypothesis 1: The nature of judicial measures in relation to punishment

and other criminal remedies should be re-perceived The judicial mesures is not only a means to support the punishment but also an independent role

Hypothesis 2: In the current context, the system of judicial mesures does

not fully meet the needs of the application, does not ensure the role and effectiveness of the defense measures in the system of criminal enforcement measures

Hypothesis 3: The judicial mesures applied to criminal subjects are

necessary and need to be more clearly and fully regulated in the criminal law

Hypothesis 4: The current situation of Vietnam's criminal law and the

situation of applying judicial mesures for offenders and commercial legal entities still has problems that require improvement to apply correct and to ameliorate the effectiveness of their application in practice

3.4 Research question

The content of the thesis will focus on research to answer the following questions:

Firstly, what are the concepts, characteristics, roles of judicial mesures?

Basis of stipulating judicial mesures in criminal law? What is the relationship between judicial mesures and punishment?

Secondly, how are judicial mesures regulated in the criminal law of some

countries in the world? What are the similarities and differences from Vietnam's criminal law?

Thirdly, how is the content of the legal framework regulated in the current

criminal law?

Fourthly, how do you apply the practice of judicial mesures? What are

the limitations, difficulties, obstacles and their causes?

Fifthly, to overcome the causes of the limitations and difficulties in

applying the judicial measures and improve the effectiveness of applying these measures in the future, what solutions are needed?

3.5 Approach of the thesis: access to rights, inter-disciplinary approach,

historical approach and comparative approach

Conclusion chapter overview

An overview of the research works of senior scholars at home and abroad has given the author a comprehensive and insightful view on the issues related

to the thesis Thereby, the author also found that, although there are many works at different angles research on judicial measures, but until now, there has not been any work at the advanced thesis level research in a comprehensive and holistic perspective from the criminal law perspective on judicial measures So, the thesis will continue to focus on clarifying the theoretical issues on judicial measures, the practice of applying judicial measures of Vietnam, thereby proposing synchronous and have practical value to contribute to improving the effectiveness of the application of judicial measures in Vietnam

C CONTENTS, RESEARCH RESULTS CHAPTER 1 GENERAL ISSUES AND CRIMINAL LAW IN SOME

COUNTRIES ON JUDICIAL MEASURES

1.1 Theoretical issues on judicial measures

1.1.1 Definition and characteristics of judicial measures

1.1.1.1 Definition of judicial measures

Judicial measures are from the term “security measures” The theoretical

basis of security measures in the Criminal Law originated in the 19thcentury when there was no clear difference between penalties and other criminal measures Lawmakers believe that there is a certain entity appearing in danger

in society under the affect and impact of criminal factors These entities need to

be prohibited before they are at risk of committing crimes by restricting a number of special rights (such as disarming, confiscation of property) This is considered a security measure because the purpose of social protection comes from the nature and dangerous threat of these people

Based on the concept of other criminal coercive measures, foreign criminal

law science also uses different terms to name these measures such as “security

measures” (Greece, Spain, Italy, Columbia, Mexico, etc.), “measures for improvement and security” (Germany); “Sanctions for criminals” (Poland);

The Russian Criminal Code called “other criminal legal measures” Meanwhile, it is called “Judicial Measures” in legal books and newspapers in

our country today

The fundamental difference of judicial measures between foreign and Vietnamese concepts is that foreign scientists emphasize the precaution of these measures, mainly focusing on those who commit dangerous acts to society apart from criminals and these measures are considered as security measures rather than penalties As the result, in the Criminal Law of some countries, measures play the role as security measures and penalties Meanwhile, Vietnamese scientists’concepts mostly focus on the impact on the rights and interests of people who perform dangerous acts for society are applied these measures In other words, this means that judicial measures are also supportive for penalties for the purpose of punishing entities that commit dangerous acts to society The application of judicial measures is still able to ensure the reformation and education of offenders and prevention from crimes

On the basis of analyzing scientific concepts, the dissertation figures out

judicial measures as follows: Judicial measures are State’s coercive measures

prescribed in criminal law, imposed by competent authorities in the stages of the proceeding process, in order to overcome the damages of criminals, protect the legitimate rights and interests of individuals, agencies and organizations, contributing to educating offenders and preventing from crimes as well as violating law

1.1.1.2 Characteristics of judicial measures

Firstly, judicial measures are State’s coercive measures prescribed in

criminal law

Secondly, judicial measures are suited by competent authorities during the

proceedings and execution

Thirdly, judicial measures are applied to individuals committing crimes,

corporate legal entities committing crimes and those showing dangerous acts to society in case of incapability of criminal liability (it is not considered crime)

Fourthly, judicial measures are applied independently or with penalties Fifthly, judicial measures may or may not be associated with criminal

liability

Sixthly, judicial measures are preventive This is an indispensable

characteristic of the criminal coercive measures to improve the system of criminal remedies for entities committing crimes

Seventhly, judicial measures contribute to overcome damages caused by

offenders, those committing dangerous acts to society in case of incapability of criminal liability, corporate legal entities committing crimes, protecting rights and interests of individuals, agencies and organizations, and simultaneously reforming and educating offenders

1.1.2 The role of judicial measures

First, judicial measures contribute to diversify the handling measures for

individuals and corporate legal entities committing criminal offences in the system of criminal coercive measures

Second, judicial measures contribute to support penalties to achieve the

purpose of handling crimes

Third, judicial measures contribute to overcome damages caused by

criminals, protect the legal rights and interests of individuals, organizations and other entities in the society

1.1.3 Classification of judicial measures

- Based on entities of judicial measures, it can be classified into groups: the group of judicial measures affecting the rights of objects, money, property, the group of measures affecting the rights of freedom and human honor

- Based on entities applied judicial measures, it can be classified into groups: the group of judicial measures for individuals, the group of judicial measures for corporate legal entities, the group of judicial measures for both individuals and corporate legal entities

- Based on the nature of the behavior, it can be classified into groups: the group of judicial measures for dangerous behaviors for society without accusing crimes, the group of judicial measures for dangerous behaviors for society with accusing crimes

- Based on the applied entities, it can be divided into groups: the group of judicial measures for proceedings-conducting agencies applied during the proceedings, the group of judicial measures applied by the Court

- Based on the role of judicial measures, it can be classified into groups: the group of judicial measures supporting penalties, the group of judicial measures being independent of penalties

1.1.4 The distinction of judicial measures from penalties

1.1.4.1 The similarities between judicial measures and penalties

Penalties and judicial measures are prescribed in the criminal code; and both are the State’s criminal coercive measures applied to entities that represent danger to the society would be considered criminals; the application of penalties

or judicial measures must comply with the principles of legislation, the principles of fairness, respect for human dignity and honor; aiming at preventing entities from committing dangerous acts to society; depending on the circumstance and time for lawmakers to stipulate which measures are

penalties and judicial measures

1.1.4.2 The difference between judicial measures and penalties

The dissertation has pointed out different criteria to distinguish between judicial measures and penalties including: foundation for application, subjects being applied, method of regulation and application, basis of application, authority of application and purpose Accordingly, the dissertation evaluates and clarifies the indispensable role of judicial measures in the system of criminal coercive measures

1.2 The historical overview of formation and development of judicial measures in Vietnam's criminal law before the 2015 Criminal Code

1.2.1 The period from the feudalism to the August Revolution of 1945

The criminal law in the feudalism had regulations on other criminal prosecution in addition to the penalties containing judicial measures; however, legislators at that time did not indicate a specific term and how to correctly understand judicial measures as they do today These measures are meant as supportive measures in necessary cases, even indispensable in the application of dealing with some crimes

1.2.2 The period from the August Revolution of 1945 to before the promulgation of the 1985 Criminal Code

It can be seen that apart from penalties, the confiscation of objects and money directly related to crimes was the earliest and the most applied in the criminal law of our country In addition, criminal documents had no clear distinctions among measures, and defined general regulations, without specifying contents, scopes, conditions and duration for each measure Those limitations particularly affected on the effectiveness of criminal liability in reality But it is worth acknowledging that the regulations of judicial measures during this period were precious experiences informing Vietnam’s criminal law

in 1985

1.2.3 The period of the promulgation of the Criminal Codes from 1985 to before 1999

Obviously, Vietnam's criminal law remarkably changed through the first promulgation of a complete Criminal Code With the provisions of this Code, judicial measures were more complete basing on the inheritance of the provisions on judicial measures mentioned in legal documents Lawmakers determined that judicial measures had an indispensable position and role in the Criminal Code, and emphasized the importance and significance of the application of judicial measures to deal with crimes, contributing to prevent from crimes effectively

1.2.4 The period of the promulgation of the Criminal Codes between 1999 and before 2015

The 1999 Criminal Code (later amended in 1999 and supplemented in 2009) was resulted from the second codification process of criminal law on the basis of inheriting the system of principles and regulations of the 1985 Criminal Code, simultaneously the provisions of the Criminal Code became appropriate thanks to the amendment, supplementation, improvement and development, of which the provisions on judicial measures were more complete and more clearly expressed their nature and role

1.3 The overview of criminal laws of some countries on judicial measures

1.3.1 Provisions on judicial measures in Sweden’s criminal law

Sweden’s Criminal law defines judicial measures in chapter 36 under the

name Other Special Legal Effects of Crime including: confiscation of

property, fine of enterprises, compensation for damages and other legal measures as prescribed by law Although there is no definition of other special measures, Sweden’s Criminal Code affirmed that these special legal measures could be applied simultaneously with penalties

1.3.2 Provisions on judicial measures in France’s criminal law

France’s Criminal law points out a system of criminal coercive measures apart from penalties, known as security measures Among the security measures that apply to offenders, there are some measures construed as either primary or additional penalties within the penalty system Specifically, the security measures apply to juvenile offenders including: mandatory supervision, mandatory attendance at a correctional institution; to offenders over 18 years old including: expulsion, prohibition of accommodation in the territory of France The classification of penalties and security measures only identified the different purposes of these measures, but the nature and security measures could still be the main or additional penalties in the system of penalties

1.3.3 Provisions on judicial measures in German Federation’s criminal law

Germany’s Criminal Code defines judicial measures in chapter three, title

6under the name Measures of reform and prevention including: compulsory