Can a person be prosecuted for a crime if the victim has withdrawn their complaint in Vietnam?

Can a person be prosecuted for a crime if the victim has withdrawn their complaint in Vietnam? (Internet image) 

Regarding this issue, LawNet would like to answer as follows

1. Can a person be prosecuted for a crime if the victim has withdrawn their complaint in Vietnam?

Criminal proceedings for the following crimes can only be initiated at the request of the victim or the victim's representative who is under 18 years old, has a mental or physical weakness, or is dead:

- Deliberate infliction of bodily harm upon another person (Article 134);

- Deliberate infliction of bodily harm upon others under provocation (Article 135);

- Deliberate infliction of bodily harm because of unjustified force in capturing criminals (Article 136);

- Involuntary infliction of bodily harm upon others (Article 138);

- Involuntary infliction of bodily harm because of professional misconduct or breach of administrative rules (Article 139);

- Rape (Article 141);

- Sexual abuse (Article 143);

- Insults to another person (Article 155);

- Slander (Article 156).

Note: If the petitioner withdraws his petition for charges, the lawsuit shall be dismissed. If such person is evidently found to withdraw the petition against his will out of coercion or duress, the investigation authority, Procuracy or Court shall maintain the charges regardless of the petition for withdrawal.

The crime victim or its representative is not permitted to resubmit a petition withdrawn, unless such withdrawal results from coercion or duress.

Thus, only committing a crime in clause 1 of the above crimes will not be prosecuted for criminal liability when the victim has dismissed the complaint.

(Article 155 of the Criminal Procedure Code 2015, amended in 2021)

2. Mitigating factors under the law in Vietnam

The following circumstances 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.

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.

If a circumstance defined as a mitigating factor in the Penal Code 2015 is the basis for determination of a crime or sentence bracket, it shall not be considered a mitigating factor in the decision on sentences.

(Article 51 of the Penal Code 2015, amended in 2017)

3. Aggravating factors under the law Vietnam

The following circumstances are considered aggravating factors:

- Organized crime;

- The crime is committed in a professional manner;

- The offender abuses his/her position or power to commit the crime;

- The crime is of a gangster-like nature;

- The crime is committed by despicable motives;

- The offender is determined to commit the crime to the end;

- The offence has been committed more than once;

-Recidivism or dangerous recidivism;

- The crime is committed against a person under 16 years of age, pregnant woman or a person aged 70 years or older;

- The crime is committed against a defenseless person, a person having a serious physical disability or extremely serious physical disability, a person whose awareness is limited or a person who is financially, spiritually, professionally or otherwise dependent on the offender;

- The offender takes advantage of war, state of emergency, natural disaster, epidemic or other tragic circumstances of society to commit the crime;

- The offender makes use of a sophisticated, deceitful or ruthless trick to commit the crime;

- The offender uses a trick or instrument capable of harming many people to commit the crime;

- The offender incites a person aged under 18 to commit the crime;

- The offender has deceitful or violent actions to conceal the crime.

Circumstances defined by this document as the basis for determination of a crime or sentence bracket shall not be considered an aggravating factor.

(Article 52 of the Penal Code 2015, amended in 2017)

Ho Quoc Tuan

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