Crime of murder under the Penal Code 2015 of Vietnam

1. Aggravating factors for the sentence bracket of the crime of murder in Vietnam

Murder of 02 or more people (point a, clause 1, Article 123)

Killing two or more people refers to the intentional act of causing death to two or more individuals unlawfully. The offender in this case intends to kill two or more people or consciously disregards and accepts the consequences of two or more deaths. If the offender consciously disregards and accepts the consequence of causing death (indirect intentional offense), this aggravating factor for the sentence bracket of the crime of murder applies only when there are two or more deaths.

If there are two deaths, but one of them is due to the offender's unintentional fault, it is not considered killing multiple people but falls under two separate offenses: "Murder" and "Unintentional killing". If there are two deaths, but only one of them falls under the provisions of Article 123 of the Penal Code, while the other falls under cases of strong emotional disturbance, exceeding the limits of justifiable defense, or killing in the line of duty, the offender will not be charged with killing two or more people. Instead, depending on the specific circumstances, the offender will be held criminally responsible for the crime of murder and another offense (such as killing while in a state of strong emotional disturbance or killing in excess of justifiable defense limits).

Murder of a person aged under 16 (point b, clause 1, Article 123)

Killing a person under the age of 16 is considered an aggravating factor for the sentence bracket of the crime of murder. This is because this act not only "destroys" the happiness of a family but also "ruins" a "future owner" of the country, reflecting the cowardice and cruelty of the perpetrator. Based on the perspective of protecting children as the future of the country, safeguarding the generation for the construction and defense of the homeland, and protecting those who are unable to defend themselves, the Penal Code has stipulated this factor as an aggravating factor for the sentence bracket of the crime of murder in general and specifically for the crime of murder.

Considering that killing a person under the age of 16 is more dangerous than killing other ordinary individuals, the Penal Code of 1999 added the aggravating factor for the sentence bracket of the crime of murder committed against children, and this provision was inherited by the Penal Code of 2015 (replacing the term "children" with the term "person under the age of 16"). This provision aims not only to severely punish those who commit acts of killing children but also to contribute to preventing the increasing trend of infringing on the lives of children and to ensure the implementation of international conventions that the Socialist Republic of Vietnam has participated in or signed regarding the protection and care of children.

Murder of a woman with the full knowledge of her pregnancy (point c, clause 1, Article 123)

Killing a pregnant woman refers to the case where the offender knowingly kills a woman who is pregnant, (regardless of the number of months). If the victim is the offender's lover and the offender kills the victim to avoid responsibility, the aggravating factor for the sentence bracket of the crime of murder can be further applied due to the despicable motive.

If the victim is truly pregnant, but there is evidence to determine that the offender did not know that the victim was pregnant, this aggravating factor for the sentence bracket of the crime of murder does not apply. On the contrary, in the case where the woman killed is not pregnant, but the offender mistakenly believes that the victim is pregnant, and this misconception of the offender is supported by evidence, the offender will still be prosecuted for the crime of murder, with the aggravating factor for the sentence bracket of "killing a pregnant woman".

- Murder of a law enforcement officer in performance of his/her official duties or murder of a person because of his/her official dutiesm (point d, clause 1, Article 123)

Killing a person in the line of duty refers to intentionally causing the death of a person who is performing a task entrusted to a state agency or a competent social organization. The assigned task can be a duty defined by the profession, such as: police officers on duty to protect, doctors treating patients in hospitals, teachers giving lectures or guiding students on field trips, judges conducting trials, Red Cross volunteers, or self-defense forces on duty to maintain public order in public places, etc. Killing a person in the line of duty can also be considered in some cases where the victim is a citizen mobilized to perform tasks (such as patrols, guarding) according to the plans of authorized state agencies, serving the common interests of the state or society. Although the victims may not be citizens mobilized by authorized state agencies, they voluntarily participate in maintaining political security and social order in certain areas, such as apprehending fleeing criminals or preventing fights in public places.

Unlike the case of killing someone in the performance of official duties, killing someone for the victim's official duties is a case where the victim is killed not while they are performing official duties but before or after. Typically, the victim is someone who has carried out a task and therefore has incurred the resentment of the offender, leading them to kill them. However, there are cases where the person is killed before they have had the chance to carry out the assigned task, but the person committing the murder believes that if they let this person live, the task they are carrying out will cause harm to them, so they kill the victim beforehand.

Murder of the murderer's grandparent, parent, caregiver or teacher (Point d, Article 123)

Killing one's own grandparents, parents, foster parents, and teachers is a case where the offender intentionally causes the death of those whom they should respect and be grateful to, namely their grandparents, parents, foster parents, and teachers.

The act of killing one's own grandparents, parents, foster parents, or teachers significantly increases the degree of guilt of the offender compared to the usual case of murder, disrupting social values and alarmingly causing a serious decline in ethics and humanity. This act not only violates the law but also seriously violates ethics, losing all humanity, daring to harm those whom they should worship and respect. The Penal Code 2015 provides aggravating factors for the sentence of murder of one's own grandparents, parents, foster parents, and teachers to deter and educate offenders about the importance of respecting their grandparents, parents, foster parents, and teachers; educating them about the importance of respecting the law and preserving social ethics.

Murder committed right before or after committing a very serious crime or extremely serious crime (Point e, Article 123)

Killing someone and immediately before or after committing a very serious crime or a particularly serious crime is a case where the offender kills someone and immediately before or after the act of killing, they commit a crime that is very dangerous to society, with the highest penalty prescribed by the Penal Code 2015 for that crime ranging from over 7 years to 15 years in prison, or a crime that is particularly dangerous to society, with the highest penalty prescribed by the law for that crime ranging from over 15 years to 20 years in prison, life imprisonment, or death penalty. For example, immediately after killing the victim, the offender commits the crime of robbery of someone else's property unrelated to the victim.

Although there is no explanation or guidance on what "immediately before" or "immediately after" means, in practice, it is considered to be immediately before or after the act of killing; if the crime is committed before or after the time in close proximity to the act of killing, which can be within a few hours or within a day; if the crime committed before or after has a certain distance from the act of killing, it is not considered to be killing someone immediately before or after and committing a very serious crime or a particularly serious crime.

This case of killing someone is different from the case of killing someone to commit or conceal another crime in that: the crime committed by the offender before or after killing the victim is unrelated to the crime of murder and must be a very serious crime or a particularly serious crime.

Murder for the commission or concealment of another crime (Point g, Article 123)

Killing someone to commit another crime is a case where, after killing the victim, the offender commits another crime. The crime committed after killing someone must be closely related to the act of killing. The act of killing is a prerequisite, a means to commit the subsequent crime; without killing someone, the subsequent crime cannot be committed. For example, killing someone to rob their property, killing someone for terrorism, killing someone to flee abroad...

Killing someone to conceal another crime is a case where, before killing the victim, the offender has committed another crime, and to conceal that crime, they kill the victim. Usually, after committing a crime that is at risk of being exposed, the offender believes that only by killing someone can the crime they committed be discovered. The person killed in this case is usually someone who knew about the criminal act or someone who participated in the criminal act with the offender. For example, A commits the crime of stealing C's property but is discovered by B. To conceal the crime of theft, A kills B.

Killing someone to commit or conceal another crime is a case where killing someone is motivated by the intention to commit or conceal another crime. The other crime can be any crime regulated by the Penal Code, not necessarily a very serious crime or a particularly serious crime, and the other crime does not have to be committed immediately before or after the offender kills the victim.

Murder for taking the victim's body parts (point h Clause 1 Article 123)

Killing someone to take body parts from the victim is a case of murder for the purpose of obtaining body parts from the victim, which can be used to replace the perpetrator's own body parts or those of their relatives, or to sell to others.

If the perpetrator, driven by extreme anger, frustration, or strong provocation, takes the victim's body parts to satisfy their anger, frustration, or strong provocation, it does not fall under this crime. For example, after killing someone, the perpetrator cut open the victim's abdomen and fed the liver to a dog. In this case, aggravating factors for the sentence bracket of the crime of murder "committing the crime in a heinous manner" can be applied.

Brutal murder (point i Clause 1 Article 123)

Committing the crime in a heinous manner is a case where the victim is subjected to pain and suffering before death, such as: dissecting the abdomen, removing the liver, gouging the eyes, severing limbs, cutting the flesh, skinning, torturing to death, etc. These actions are often carried out by the perpetrator before the crime is complete, meaning before the victim dies. However, in practice, these actions are also considered committing the crime in a heinous manner to conceal the crime. For example, after killing someone, the perpetrator dismembered the victim's body and disposed of the parts in different locations to conceal the crime. This is a matter of theoretical debate, but in our opinion, if even actions with heinous characteristics to conceal the crime of murder are considered "committing the crime in a heinous manner," then this crime should be defined as "committing the crime in a heinous manner," as it includes both the act of concealing the crime and the act of committing the crime, while "committing the crime" only describes the objective actions and subjective intent of the perpetrator in the commission of the crime of murder.

Murder by taking advantage of the murderer's profession (point k Clause 1 Article 123)

This is a case where the perpetrator has used their profession as a means to easily commit and conceal the crime, such as: a doctor killing a patient, but writing the medical record as the victim dying from a serious illness; a security guard shooting someone, but claiming they were a robber. Using one's profession to commit murder is a crime with cunning methods, so lawmakers not only stop at stipulating it as an aggravating circumstance but also consider it as a determining factor for the sentencing framework.

It must be clearly determined that the perpetrator has exploited their profession to commit murder in order to fall under this crime. If a person commits murder using a method related to their profession, but it is not their actual profession, and they exploit someone with that profession to carry out their intentions, it does not fall under this crime. For example, someone who switched a nurse's syringe for treatment with a fake syringe labeled as a genuine one but containing a strong poison to make the nurse unknowingly kill a patient they hold a grudge against.

Murder using a method capable of killing many people (point l Clause 1 Article 123)

Killing someone using methods capable of killing multiple people is a case where the perpetrator has used tools, means, or methods that can kill two or more people, such as: throwing grenades into a crowd; poisoning the public water source or public swimming pool; or shooting at a bus, car, or boat with many people on board.

Killing people using methods capable of killing multiple people not only threatens to cause the death of multiple people but also demonstrates the level of cruelty in the criminal act. Therefore, the Penal Code 1985, the Penal Code 1999, and the Penal Code 2015 all stipulate "killing people using methods capable of killing multiple people" as aggravating factors for the sentence bracket of the crime of murder.

Contract killing (point m Clause 1 Article 123)

Hiring someone to commit murder is a case where the perpetrator pays or provides material benefits to someone else to kill the person they want dead. Similar to cases where someone is hired to do a job, the perpetrator, because they do not directly commit the act of murder, uses money or other material benefits to hire someone else to commit the murder. The person who directly commits the murder in this case is the hired killer.

Committing murder for hire is a case where the perpetrator uses the act of murder as a means to earn money or other material benefits. In order to obtain money, the perpetrator agrees to the offer of someone hiring them to kill another person. The severe penalty for hired killers aims to prevent the situation of "stabbing for hire, killing for hire," especially in a market economy where there are many people specializing in such activities.

Hiring someone to commit murder and committing murder for hire are closely related, with one being a premise for the other; without one, the other cannot exist. Therefore, the Penal Code 2015 stipulates both hiring someone to commit murder and committing murder for another person as aggravating factors for the sentence bracket of the crime of murder.

Murder of a gangster-like nature (point n, Clause 1 Article 123)

Killing with thug behavior refers to the case of killing someone without any reason (without justification) or intentionally using trivial reasons to kill someone, demonstrating a disregard for the law, the lives of others, and the rules of society.

When determining a case of killing with thug behavior, a comprehensive consideration of the relationship between the offender and the victim, the attitude of the offender when committing the crime, and the reasons leading to the killing should be taken into account. It should avoid a biased approach such as only emphasizing the offender's background, the location of the murder, or the specific act causing the victim's death.

Crime committed by an organized group (point o, Clause 1 Article 123)

Killing with organization refers to the act of killing someone with close collaboration between the individuals involved in the crime. If multiple individuals participate in a murder case without close collaboration, only having a loose agreement, it is not considered killing with organization.

In practice, due to the lack of a unified concept, some courts have mistakenly equated organized crime with other cases of accomplices. Therefore, to distinguish organized crime from other cases of accomplices, attention should be paid to the following issues: Organized crime must involve close collaboration between the individuals involved in the crime. In practice, this collaboration can manifest in the following forms: (1) The accomplices have participated in a criminal organization such as a gang or a syndicate with leaders or commanders. However, there are also cases where organized crime does not have leaders or commanders but is a gathering of specialized criminals who have agreed to work together. (2) The accomplices have committed multiple murders according to a pre-agreed plan. (3) The accomplices may have committed the crime only once but have organized it meticulously, with well-prepared means of operation, and sometimes even a plan to conceal the crime. For example, killing someone after discussing or assigning the victim's activities, preparing means and plans to conceal the crime...

Dangerous recidivism (point p, Clause 1 Article 123)

Offenders of murder who meet the aggravating factors for the sentence bracket of the crime of murder dangerous recidivism are those who fall into one of the following two cases:

Firstly, they have been convicted of a very serious crime, a particularly serious intentional crime, without their criminal record being expunged, and they commit the act of murder. For example, Person A has been convicted of robbery without their criminal record being expunged, and they commit the act of murder.

Secondly, they have recidivated without their criminal record being expunged, and they commit the act of murder. For example, Person A has recidivated for theft without their criminal record being expunged, and they commit the act of murder.

Murder from despicable motives (point q, Clause 1 Article 123)

Killing with base motives refers to cases of killing with motives such as: killing a spouse to marry someone else freely; killing a spouse to marry the victim's spouse; killing a lover who is known to be pregnant to avoid responsibility; killing a creditor to evade debts; killing someone to rob their property; killing someone who has been a victim of oneself... In addition to the mentioned cases, in practice, killing a close relative because the intended target cannot be killed is also considered killing with base motives.

2. Penalties for the Crime of Murder in Vietnam

The main penalty for the Crime of Murder

The main penalty for the crime of murder as prescribed in Clause 1, Article 123

According to Article 123, Clause 1 of the Penal Code 2015, a person who commits murder in any of the following cases shall be punished with imprisonment from 12 to 20 years, life imprisonment, or the death penalty: a) Killing two or more people; b) Killing a person under 16 years old; c)...

However, in practice, there have been cases where the defendant committed murder only falling under one of the specified cases (with only one aggravating factor), as provided in Article 123, Clause 1, but still received the death penalty. On the other hand, there have been cases where the defendant committed murder falling under multiple specified cases (with multiple aggravating factors), as provided in Article 123, Clause 1, but received a punishment of less than 20 years imprisonment. Therefore, it is not appropriate to solely rely on the number of criminal cases (aggravating factors) but rather consider the nature and level of danger to society of the criminal act, the personal circumstances of the offender, and the mitigating and aggravating factors of criminal liability in order to determine the punishment for the crime of murder.

When deciding the punishment for the crime of murder under Article 123, Clause 1 of the Penal Code 2015, the Court should base its decision on the provisions on punishment in Chapter VIII of the Penal Code 2015 (from Article 50 to Article 59).

The main penalty for murder as prescribed in Clause 2, Article 123

Clause 2, Article 123 of the Penal Code stipulates: Anyone who kills someone other than in the cases specified in Clause 1 above shall be sentenced to imprisonment for 7 to 15 years.

This is a case of ordinary murder, without any aggravating factors for the sentence bracket of the crime. In terms of legislative technique, this case constitutes the basic offense of murder. However, due to the legislative tradition in our country regarding the crime of murder, the lawmakers have constructed an aggravated offense before the basic offense. Therefore, Clause 2 of Article 123 cannot be considered a mitigated offense of murder, as in some crimes against national security.

When deciding the penalty for the crime of murder under Clause 2 of Article 123 of the Penal Code 2015, the Court must base its decision on the provisions on penalty in Chapter VIII of the Penal Code 2015 (from Article 50 to Article 59).

If the offender of the crime of murder has at least two mitigating circumstances specified in Article 51, Clause 1 of the Penal Code 2015, without any aggravating circumstances, the Court may decide a penalty below the minimum level of the applicable penalty range (below 7 years imprisonment).

If the offender of the crime of murder has multiple aggravating circumstances specified in Article 52 of the Penal Code 2015, without any mitigating circumstances, they may be sentenced to up to 15 years imprisonment.

The primary penalty for the crime of murder as specified in Article 123, Clause 3

Clause 3 of Article 123 of the Penal Code specifies that a person who prepares to commit murder shall be punished with imprisonment from 1 to 5 years.

Preparing to commit murder includes searching, preparing tools and means, creating other conditions to commit the crime, or establishing and participating in a group of murderers. Clause 3 of Article 123 is a new provision of the Penal Code 2015. In the Penal Code 1999, the act of preparing to commit murder was only generally regulated (with the content being: Only those who prepare to commit a very serious crime or a particularly serious crime shall be criminally responsible for the offense of attempted commission) in the general part of the Penal Code, not specified in a clause of each crime, the part of the crimes in the Penal Code. This new provision facilitates the study and application of the provisions of the Penal Code in general and the provisions of the Penal Code regarding murder in particular.

Additional penalties for the crime of murder

Clause 4 of Article 123 of the Penal Code specifies that a person who commits the crime of murder, in addition to the primary penalties mentioned above, may also be prohibited from practicing a profession or performing certain jobs for a period of 1 to 5 years, or subjected to probation or restricted residence for a period of 1 to 5 years.

These are additional penalties that can be applied alongside the primary penalty in necessary cases. For the crime of murder, if the Court applies the death penalty to the offender, the additional penalties cannot be applied because the additional penalties are to be executed after the completion of the imprisonment sentence. If a person has been sentenced to death, there is no completion of the imprisonment sentence, and applying additional penalties to a person sentenced to death would be meaningless. Regarding life imprisonment, there is an opinion that the Court can apply additional penalties because a person sentenced to life imprisonment may have their imprisonment term reduced, and in practice, no one sentenced to life imprisonment remains in prison for their entire life. Therefore, applying additional penalties to them is necessary and ensures fairness for those who are sentenced to limited-term imprisonment. However, life imprisonment is an imprisonment without a specific term, so if the Court applies additional penalties to the offender of the crime, during the sentencing, the Court cannot decide to restrict residence or probation for the offender for a certain number of years after completing the imprisonment sentence. Such a decision would be legally incorrect because no one knows when a person sentenced to life imprisonment will complete their sentence. Except for cases where the Penal Code stipulates that "a person sentenced to life imprisonment, if their penalty is reduced to a limited-term imprisonment, the Court will apply additional penalties to them, or if additional penalties are applied to a person sentenced to life imprisonment, the additional penalties will be executed if the person convicted of life imprisonment has their penalty reduced to a limited-term imprisonment as stipulated in the Penal Code."

The provision of additional penalties that can be applied to offenders of the crime of murder not only supports the primary penalty but also enhances the individualization of the penalty and helps achieve the purpose of the penalty, which is not only to deter the offender but also to educate them in law-abiding consciousness and the rules of life, prevent them from committing new crimes, educate others to respect the law, and prevent and combat crime in general and murder in particular.

1. See more: Supreme People's Court (1988), Resolution 02/HDTP on November 16, 1988, of the Council of Judges of the Supreme People's Court providing supplementary guidelines to Resolution 02/HDTP on January 5, 1986, of the Council of Judges of the Supreme People's Court (regarding organized crime). 2. See more: Council of Judges of the Supreme People's Court (1986), Resolution 04/HDTP on November 29, 1986, of the Council of Judges of the Supreme People's Court providing guidance on certain provisions in the Criminal Code of 1999. 3. See more: Dinh Van Que (2000), Scientific commentary on the Penal Code 1999, General Part, Ho Chi Minh City Publishing House, pp. 227–235 (basis for sentencing decisions). 4. This principle applies to all criminal cases, so we only mention it once and do not repeat it when analyzing other criminal cases.

Source: "Kiểm sát online" (Online Prosecution)

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