Vietnam: Do mitigating factors for criminal liability include circumstances of the record of the offender?
What are the mitigating factors of criminal liability in Vietnam?
Pursuant to Article 51 of the 2015 Criminal Code of Vietnam (amended and supplemented by Points a and b, Clause 6, Article 1 of the 2017 Law on amendments to the Criminal Code) stipulating as follows:
Mitigating factors
1. The following circumstances are considered mitigating factors:
a) The offender has prevented or reduced the harm caused by the crime;
b) The offender voluntarily makes rectification, pays damages or relieves the consequences;
c) The crime is considered unjustified force in self-defense;
d) The crime is considered unjustified force in urgent circumstance;
dd) The crime is considered unjustified force in capturing a criminal;
e) The crime is committed under provocation caused by the victim's illegal acts;
g) The crime is committed because of extreme hardship that is not on the offender's account;
h) The crime has not inflicted damage or the damage inflicted is not significant;
i) The offender commits a less serious crime and does not have prior criminal record;
k) The crime is committed because the offender threatened or coerced by others;
l) The offender commits the crime while because of lack of awareness that is not on his/her account;
m) The crime is committed due to obsolescence;
n) The offender is a pregnant woman;
o) The offender is 70 years of age or older;
p) The offender has a serious physical disability or extremely serious physical disability;
g) The offender has a disease that limits his/her awareness or control of his/her acts;
r) The offender turns himself/herself in;
s) The offender expresses cooperative attitude and/or contrition;
t) The offender fully cooperates with responsible for authorities in discovery of crimes or during the investigation;
u) The offender has made reparation in an effort to atone for the crime;
v) The offender is an excellent worker, soldier or student;
x) The offender is revolutionist, parent, spouse or child of a war martyr or war veteran.
2. When issuing a decision on sentences, the Court might consider the offender's turning himself/herself in or other circumstances as mitigating factors and specify the reasons in the judgment.
3. If a circumstance defined as a mitigating factor in this document is the basis for determination of a crime or sentence bracket, it shall not be considered a mitigating factor in the decision on sentences.
Thus, offenders with one of the above circumstances will be relieved of their criminal liability.
Vietnam: Do mitigating factors for criminal liability include circumstances of the record of the offender? (Image from the Internet)
Can the court consider the personal circumstances of the accused as mitigating circumstances of criminal liability in Vietnam?
Pursuant to subsection 5, Section 1, Official Dispatch 212/TANDTC-PC in 2019 stipulating as follows:
When deciding the penalty, can the Court consider the personal details of the defendant such as low education level, main job, having small children, having grandparents who have contributed to the Revolution, etc. Criminal Code mitigating factors specified in Clause 2, Article 51 of the Criminal Code?
Currently, the provisions of Clause 2, Article 51 of the 2015 Criminal Code have not been specifically guided by the Council of Judges of the Supreme People's Court. However, during the trial, the Court may refer to the provisions of Point c, Section 5 of Resolution No. 01/2000/NQ-HDTP dated August 4, 2000 of the Judicial Council of the Supreme People's Court for guidance. apply a number of provisions in the general part of the 1999 Criminal Code to determine other circumstances as mitigating factors of penal liability as provided for in Clause 2, Article 51 of the 2015 Criminal Code, specifically as follows: after:
- The defendant's wife, husband, father, mother, child, brother, sister or brother who have made meritorious services to the country or have outstanding achievements are awarded one of the honorary titles by the State such as: labor hero, brother Armed Forces hero, heroic Vietnamese mother, people's artist, excellent artist, people's teacher, excellent teacher, people's doctor, excellent physician or other noble titles according to the provisions of the State:
- The defendant has a brother, sister, and younger brother who are martyrs;
- The defendant is a disabled person due to an accident at work or at work, with an injury rate of 31% or more;
- The victim is also at fault;
- Damage caused by the fault of a third party;
- The defendant's family repairs and compensates for damage on behalf of the defendant;
- The victim or the victim's lawful representative applies for a reduction of the defendant's punishment in case it only causes harm to the victim's health or property damage;
- Committing the crime in the case of serving unexpected work requests such as going to fight storms, floods, and emergencies.
In addition, when adjudicating, depending on each specific case and the specific circumstances of the offender, other circumstances may also be considered as mitigating factors, which must be clearly stated in the judgment.
Thus, in the process of deciding the penalty, the court can rely on personal circumstances to reduce criminal liability for the accused such as:
- The defendant's wife, husband, father, mother, child, brother, sister or brother who have made meritorious services to the country or have outstanding achievements are awarded one of the honorary titles by the State such as: labor hero, brother Armed Forces hero, heroic Vietnamese mother, people's artist, excellent artist, people's teacher, excellent teacher, people's doctor, excellent physician or other noble titles according to the provisions of the State:
- The defendant has a brother, sister, and younger brother who are martyrs;
- The defendant is a disabled person due to an accident at work or at work, with an injury rate of 31% or more;
- The victim is also at fault;
- Damage caused by the fault of a third party;
- The defendant's family repairs and compensates for damage on behalf of the defendant;
- The victim or the victim's lawful representative applies for a reduction of the defendant's punishment in case it only causes harm to the victim's health or property damage;
- Committing the crime in the case of serving unexpected work requests such as going to fight storms, floods, and emergencies.
Are there any considerations about the record of the offender when deciding on sentences?
Pursuant to Article 50 of the 2015 Criminal Code of Vietnam stipulating as follows:
Basis for decision on sentences
1. The Court shall issue the decision on sentences pursuant to this document and in consideration of the nature and danger of the crime to society, record of the offender, mitigating factors and aggravating factors.
2. When imposing a fine, apart from the basis specified in Clause 1 of this Article, the Court shall also consider the offender's property and ability to pay the fine.
Thus, the Court shall issue the decision on sentences pursuant to this document and in consideration of the nature and danger of the crime to society, record of the offender, mitigating factors and aggravating factors.
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