Will not comply with the order for pre-enlistment check-up be prosecuted for criminal liability in Vietnam?

Will not comply with the order for pre-enlistment check-up be prosecuted for criminal liability in Vietnam?(Illustration)

How does Vietnam's criminal law deal with evading military service?

Article 332 of the current Criminal Code of Vietnam provides for the crime of evading military service as follows:

Any person who fails to comply with regulations of law on conscription, defies an enlistment order or military training order despite the fact that he/she has incurred an administrative penalty or has an unspent conviction for the same offence shall face a penalty of up to 02 years' community sentence or 03 - 24 months' imprisonment.

According to the criminal composition of this crime, a person is considered guilty of evading military service when committing 01 of 03 acts:

(1) Failure to comply with the law on military service registration;

(2) Failure to comply with the order to enlist;

(3) Failure to comply with the call to focus on training.

In particular, failure to comply with the law on military service registration is an act of a person subject to military service registration but failing to register or improperly performing the military service under the Military Service Law 2015 of Vietnam.

The act of disobeying the order to enlist is the act of a person registered for military service when there is an order to enlist but does not enlist or has arrived at the place of delivery and receipt of troops but flees. The time to be considered as having a military enlistment order is the time when that person receives the enlistment order from the Commander of the district-level military committee.

And the act of not complying with the order to concentrate on training is an act where a person meeting full conditions under the provisions of the Law on Military Service 2015 must carry out the training concentration and have had the order to concentrate on training but did not come to places where training is concentrated or if they come but leave and evade the implementation of the training program.

Therefore, from the above analysis, it can be seen that the act of failing to comply with the order of medical examination for military service is not a basic constitutive act of the crime of evading military service in Article 332 of the Criminal Code of Vietnam.

But not complying with the order for pre-enlistment check-up is equivalent to disobeying the order for the call-up.

Indeed, failure to comply with the order for a medical examination for military service is one of four acts that are considered evading military service under Clause 8, Article 3 of the 2015 Law on Military Service, including:

(i) Failure to comply with the order to register for military service;

(ii) Failure to comply with the order for pre-enlistment check-up;

(iii) Failure to comply with the order for  the call-up;

(iv) Failure to comply with the order for concentrated training, practicing or examination on readiness for mobilization/fightingt.

Considering the provisions on military service registration as well as other provisions in the Military Service Law 2015, military service registration and military service medical examination are two separate and independent activities. 

Along with that, in Clause 3, Article 2 of Joint Circular 16/2016/TTLT-BYT-BQP stipulates that a health examination is "Performing medical examination, classification and conclusion of health for citizens who have been called as military service officers who have undergone pre-qualification and citizens who have registered for the military entrance exam, conducted by the District Military Service Medical Examination Council."

At the same time, through the practice of military service registration and annual enlistment, military service medical examination is the next activity of military service registration; On the basis of the results of each citizen's medical examination, the competent authority will issue an order to call that citizen to join the army if he also meets other criteria in terms of age, politics and culture.

Thus, the military service medical examination is a transitional step between military service registration and enlistment. Acts of non-compliance with medical examination orders infringe upon activities of state agencies in the administrative management of military service performance with the same nature and extent as acts of non-compliance with orders for military service registration, and the call-up

Therefore, is there a criminal penalty for this act of deliberately evading the pre-enlistment check-up?

Compared with the specific provisions as analyzed above, Article 332 of the current Criminal Code of Vietnam "does not provide for" the act of "failing to comply with the order for pre-enlistment check-up", therefore not there are grounds to examine for penal liability for the act of "failing to comply with the order for the pre-enlistment check-up". This content is also raised and answered in Section 11 of Part I Official Dispatch 5887/VKSTC-V14 dated December 5, 2019 of the Supreme People's Procuracy on solving a number of difficulties and problems related to provisions of the Criminal Code, the Criminal Procedure Code of 2015 and the execution of criminal judgments.

In addition to being administratively sanctioned according to the provisions of Article 6 of Decree 120/2013/ND-CP of Vietnam, it can be affirmed that the person who evades the order for the pre-enlistment check-up will not be prosecuted for criminal liability for this act. This can be considered as an incomplete point in the legal provisions of Article 332 of the current Criminal Code and needs to be amended and supplemented in the near future to strengthen the deterrence against violators who intentionally evade pre-enlistment check-up in order to evade the performance of military service.

Bao Ngoc

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