Vietnam: Is low educational background a mitigating factor in criminal sentencing for the defendant?
- How many factors are currently considered mitigating factors in criminal sentencing in Vietnam?
- Is low educational background considered a mitigating factor in criminal sentencing for the defendant?
- Can corporate legal entities be entitled to applying mitigating factors in criminal sentencing in Vietnam?
How many factors are currently considered mitigating factors in criminal sentencing in Vietnam?
Pursuant to the provisions of Clause 1, Article 51 of the 2015 Criminal Code of Vietnam as amended by Points a and b, Clause 6, Article 1 of the 2017 Law on Amendments to the Criminal Code of Vietnam on mitigating factors in criminal sentencing. At present, the following factors are considered mitigating factors:
- The offender has prevented or reduced the harm caused by the crime;
- The offender voluntarily makes rectification, pays damages or relieves the consequences;
- The crime is considered unjustified force in self-defense;
- The crime is considered unjustified force in urgent circumstance;
- The crime is considered unjustified force in capturing a criminal;
- The crime is committed under provocation caused by the victim's illegal acts;
- The crime is committed because of extreme hardship that is not on the offender's account;
- The crime has not inflicted damage or the damage inflicted is not significant;
- The offender commits a less serious crime and does not have prior criminal record;
- The crime is committed because the offender threatened or coerced by others;
- The offender commits the crime while because of lack of awareness that is not on his/her account;
- The crime is committed due to obsolescence;
- The offender is a pregnant woman;
- The offender is 70 years of age or older;
- The offender has a serious physical disability or extremely serious physical disability;
- The offender has a disease that limits his/her awareness or control of his/her acts;
- The offender turns himself/herself in;
- The offender expresses cooperative attitude and/or contrition;
- The offender fully cooperates with responsible for authorities in discovery of crimes or during the investigation;
- The offender has made reparation in an effort to atone for the crime;
- The offender is an excellent worker, soldier or student;
- The offender is revolutionist, parent, spouse or child of a war martyr or war veteran.
Thus, at present, there are 21 factors which are considered as mitigating factors in criminal sentencing for offenders.
Vietnam: Is low educational background a mitigating factor in criminal sentencing for the defendant? (Image from the Internet)
Is low educational background considered a mitigating factor in criminal sentencing for the defendant?
In the list of 21 mitigating factors in criminal sentencing specified in Clause 1, Article 51 of the 2015 Criminal Code of Vietnam above, there is no mention of educational background.
Clause 2, Article 51 of the 2015 Criminal Code of Vietnam provides the following:
Mitigating factors
...
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.
According to that, in addition to the 21 mitigating factors in criminal sentencing in Clause 1, Article 51 of the 2015 Criminal Code of Vietnam, the Court may decide to add "other circumtances" as mitigating factors, provided that the reasons of mitigation are clearly stated and attached to the sentence.
However, at present, the provisions of Clause 2, Article 51 of the 2015 Criminal Code of Vietnam have not been specifically guided by the Council of Judges of the Supreme People's Court.
In this regard, Clause 5, Section I of Official Dispatch 212/TANDTC-PC in 2019 has the following guidance:
...in the course of 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. guiding the application of a number of provisions in the general part of the 1999 Penal Code to determine other factors as mitigating factors for penal liability as provided for in Clause 2, Article 51 of the 2015 Criminal Code, specifically: as follows:
- 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 hero of the armed forces, heroic Vietnamese mother, people's artist, excellent artist, people's teacher, excellent teacher, people's physician, 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 damage 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 emergency.
In addition, when adjudicating, depending on each specific case and the specific factors of the offender, other factors may also be considered as mitigating factors, which must be clearly stated in the judgment.
Combined from the above, it can be seen that, although not specified in the 2015 Criminal Code of Vietnam, low educational background level can still be considered a mitigating circumstance depending on the specific case and factors. of the offender.
The consideration of whether a circumstance is a mitigating factor of penal liability under "other circumstances" will be decided by the Court and clearly stated in the judgment.
Can corporate legal entities be entitled to applying mitigating factors in criminal sentencing in Vietnam?
Pursuant to the provisions of the 2015 Criminal Code of Vietnam, commercial legal entities may be still entitled to applying mitigating factors in criminal sentencing.
According to that, the mitigating factors in criminal sentencing for commercial legal entities are specified in Clause 1, Article 84 of the 2015 Criminal Code of Vietnam as amended by Clause 12, Article 1 of the 2017 Law on Amendments to the Criminal Code of Vietnam as follows:
- The offender has prevented or reduced the harm caused by the criminal offence;
- The offender voluntarily makes rectification, pays damages or relieves the consequences;
- The criminal offence has not caused any damage or the damage caused is insignificant;
- The offender fully cooperates with responsible for authorities in discovery of crimes or during the investigation;
- The offender has considerable contributions to implementation of social policies.
In addition, when deciding the punishments, the Court might consider the offender's other circumstances as mitigating factors and specify the reasons in the judgment.
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