Vietnam: Inadequacies of Article 260 of the Penal Code 2015

Expanding on the subject of crime

Article 202 of the Penal Code 1999 regulates violations of road traffic control regulations: road vehicle operators in Vietnam who violate road traffic safety regulations and cause harm to life or serious damage to the health or property of others shall be fined from 5 million to 50 million VND, rehabilitated without imprisonment for up to 3 years, or imprisoned from 6 months to 5 years.

Article 260 of the Penal Code 2015 regulates violations of road traffic participation regulations: Anyone who participates in road traffic and violates road traffic safety regulations under any of the following circumstances shall be fined from 30,000,000 to 100,000,000 VND, rehabilitated without imprisonment for up to 3 years, or imprisoned from 1 to 5 years.

We can see that the subject of Article 260 of the Penal Code 2015 has changed significantly compared to the subject of Article 202 of the Penal Code 1999. Specifically, the subject of Article 202 of the Penal Code 1999 is only the drivers of road vehicles, while the subject of Article 260 of the Penal Code 2015 is those who participate in road traffic; according to Clause 22 of Article 3 of the Law on Road Traffic 2008, which states, "Road traffic participants include: drivers, users of road vehicles; animal drivers, handlers; pedestrians,"  we can see that the subject of the crime has been expanded to include all road traffic participants.

In terms of consequences

Article 202 of the Penal Code 1999 regulates in paragraph 1 causing harm to life or serious damage to the health or property of others; point d in paragraph 2 regulates causing very serious consequences; paragraph 3 regulates causing particularly serious consequences. These circumstances are factors for determining the offense or the punishment framework, which have been explained and guided in detail in Article 2 of Joint Circular No. 09/2013/TTLT-BCA-BQP-BTP-VKSNDTC-TANDTC dated August 28, 2013 by the Ministry of Public Security, Ministry of National Defense, Ministry of Justice, Supreme People's Procuracy, Supreme People's Court guiding the application of regulations in Chapter XIX of the Penal Code on offenses against order and safety of traffic.

Inheriting Article 202 of the Penal Code 1999 and the guidance in the Joint Circular, Article 260 of the Penal Code 2015 lists specific circumstances for determining the offense and the corresponding punishment framework. However, according to the author, there are still some shortcomings in this listing, as shown in the following examples:

Example 1: On March 10, 2018, A drove a car and went into the wrong lane, causing a collision with a motorcycle and an accident that injured one person by 68% and another person by 70%. The consequences caused by A resulted in the injury of 2 people by 138% of their health; the behavior of A violated the regulations on road traffic participation specified in point e of paragraph 2 of Article 260 of the Penal Code 2015.

Point e of paragraph 2 of Article 260 of the Penal Code 2015 stipulates: Causing injuries or damage to the health of 2 or more people with a total body injury ratio of these people from 122% to 200%;

Example 2: On March 10, 2018, B drove a car and went into the wrong lane, causing a collision with a motorcycle and an accident that resulted in one death and one person being injured by 90% of their health. Compared to Article 260 of the Penal Code 2015, the behavior of B only violated the regulations on road traffic participation specified in paragraph 1 of Article 260 of the Penal Code 2015.

The consequences caused by B are greater than the consequences caused by A, but the criminal responsibility of B is lighter than the criminal responsibility of A. This is a flaw in Article 260 of the Penal Code 2015.

Example 3: On March 10, 2018, C drove a car and went into the wrong lane, causing a collision with a motorcycle and an accident that injured one person by 60%, another person by 90%, and another person by 95%. The consequences caused by C resulted in the injury of 3 people by 245% of their health; the behavior of C violated the regulations on road traffic participation specified in point b of paragraph 3 of Article 260 of the Penal Code 2015.

Point b of paragraph 3 of Article 260 of the Penal Code 2015 stipulates: Causing injuries or damage to the health of 3 or more people with a total body injury ratio of these people from 201% onwards;

Example 4: On March 10, 2018, D drove a car and went into the wrong lane, causing a collision with a motorcycle and an accident that resulted in the death of one person and injuries to two others. According to Article 260 of the Penal Code 2015, the behavior of D only violated the regulations on road traffic participation specified in Point d of Clause 1 of Article 260 of the Penal Code 2015.

The consequences caused by D are greater than the consequences caused by C, but the criminal responsibility of D is lighter than the criminal responsibility of C. This is contrary to the provisions of the Penal Code.

The above are some new points and issues that arise from the practical application of Article 260 of the Penal Code 2015. In order to accurately and effectively apply the law, the attention of central government agencies is needed to issue unified guidelines for implementation. Only in this way can the efforts to combat and prevent this type of crime in practice be effective and contribute to ensuring better social order and traffic safety.

Source:"Tạp chí Tòa án nhân dân" (People's Court Magazine)

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Key word: Penal Code | in Vietnam | Vietnam | crime | road traffic control regulations | road traffic |

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