Discussion on exemption from penalty in Vietnam under the Penal Code 2015

Regulations on exemption from penalty in Vietnam according to the Penal Code 2015

In theory, penalty is the legal consequence of a crime and is always associated with the crime. Therefore, for socially dangerous behavior that is considered a crime, it is inevitable to apply the most severe coercive measures of the State. However, in reality, there are cases where if the court applies penalty to them, it will not achieve the purpose of the penalty, and thus, applying penalty to these cases is unnecessary.

Currently, the Penal Code 2015 stipulates cases of exemption from penalty in Articles 59, 88, and 390.

According to Article 59, a convicted person may be exempted from penalty if they satisfy the following conditions: they must fall under the cases prescribed in paragraphs 1 and 2 of Article 54 of the Penal Code 2015 (meaning that the offender must have at least two mitigating circumstances specified in paragraph 1 of Article 51 of the Penal Code 2015 and must be someone who provides assistance and commits the crime for the first time in a joint offense with an insignificant role); the offender deserves special leniency and has not reached the level of being exempted from criminal liability.

Therefore, compared to the provision of exemption from penalty in Article 54 of the Penal Code 1999, the provision of the Penal Code 2015 is understood to mean that the offender must satisfy the conditions specified in paragraphs 1 and 2 of Article 54 of the Penal Code 2015 in order to be exempted from penalty.

According to Article 88 of the Penal Code 2015: "Commercial legal entities committing crimes may be exempted from penalty when they have completely remedied the consequences and compensated for all damages caused by the criminal act."

Article 390 of the Penal Code 2015 stipulates: Paragraph 2 of Article 390 clearly states: "Those who do not report a crime, if they have taken actions to prevent the offender or limit the harm of the crime, may be exempted from criminal liability or exempted from penalty."

Some issues in the regulations on exemption from penalty in Vietnam

Based on the above analysis, the regulations on exemption from penalty in the Penal Code 2015 have changed compared to the Penal Code 1999, but there are still some shortcomings, as follows:

Firstly, the method of regulating exemption from penalty according to Article 59 of the Penal Code is not reasonable, leading to different understandings. The content of Article 59 specifies the conditions for exemption from penalty, but indirectly refers to this condition through another law, which is Article 54 that regulates the decision on the minimum level of penalty; from there, it continues to refer back to paragraph 1 of Article 51 of the Penal Code 2015 to see if the conditions are met or not. Thus, this construction by the legislators has caused confusion and difficulties in practical application.

Secondly, considering the first condition for exemption from penalty in Article 59, "the offender may be exempted from penalty if they fall under the cases prescribed in paragraphs 1 and 2 of Article 54,"  the use of the word "and" as currently regulated will be understood as Article 59 only determines one case of exemption from penalty, which is when the convicted person meets all the conditions specified in paragraphs 1 and 2 of Article 54 of the Penal Code 2015. This understanding has narrowed the scope of exemption from penalty for convicted individuals. In addition to the conditions that the convicted person must have at least two mitigating circumstances, deserve special leniency, they must also be first-time offenders and provide assistance in a joint offense with an insignificant role. Therefore, exemption from penalty will only be applied in cases with co-offenders; there are cases with only one defendant, but the nature, degree of danger of the criminal act, and other circumstances of the case show that applying penalty to the offender is unnecessary, but they will not be exempted from penalty.

Thirdly, the regulation on exemption from penalty in Article 390 of the Penal Code 2015 is still general and not clear about how to determine actions of prevention or limitation of the harm of the crime. Moreover, in this law, there is a general condition for those who do not report a crime to be exempted from penalty or from criminal liability. However, there is no clear distinction between which cases are exempted from penalty and which cases are exempted from criminal liability. The extent of deserving leniency for offenders exempted from criminal liability compared to those exempted from penalty is different.

Therefore, in order to have a unified understanding of the law, there should be guidance for each case of exemption from penalty: Clearly explaining what qualifies as deserving special leniency, what actions count as prevention, and how to determine the extent of limitation of the harm of the crime; unifying the regulations on the conditions for exemption from penalty in the Penal Code 2015 to ensure accurate application.

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