Comments on the draft amended Penal Code
(Baonghean)The draft revised Penal Code is expected to be passed by the National Assembly at its upcoming 10th session. The purpose of this consultation is to gather comprehensive public opinions on issues where there are differing viewpoints, with the aim of perfecting the Penal Code to ensure its thoroughness and avoid difficulties in practice. Based on our study of the draft Penal Code and our experience in applying the law, we offer the following comments on several aspects of the draft:
1. Principles for handling juvenile offenders
The subject of a crime is one of the constituent elements of a crime, and age is a mandatory condition for assessing the capacity of the subject to commit a crime. If the age requirement is not met, then the subject of the crime is also not met, and thus the person is not considered a criminal and therefore not subject to criminal responsibility. The purpose of the draft proposing alternative measures to criminal prosecution here is to provide juvenile offenders with an opportunity to correct their mistakes. However, in the current context, with the complex and increasing nature and severity of crimes committed by minors, applying such methods of handling the situation does not guarantee the effectiveness of crime prevention and control. Meanwhile, the alternative measures to criminal prosecution proposed in the draft include deterrent and warning measures, but some mainly focus on finding ways to resolve the legal consequences of juvenile offenses rather than prioritizing crime prevention (community mediation; family supervision and education; or supervision and education by agencies and organizations).
2. Regarding exemption from criminal liability
The draft Penal Code (amended) clearly stipulates the age and crimes for which individuals aged 14 to 16 are held criminally responsible. The exclusion of certain crimes for this age group is consistent with the policy on criminal handling of juvenile offenders. The draft proposes three alternative measures to criminal handling for juvenile offenders: reprimand, community mediation, and supervision and education within the family or by agencies and organizations. These measures are less stringent than judicial measures and are applied relatively broadly to serious and very serious crimes committed unintentionally. However, the feasibility of this provision needs to be considered.
The draft also removed the provision for exemption from criminal liability for juvenile offenders and replaced it with alternative measures to criminal prosecution. This provision, while aiming for stricter management of juvenile offenders, actually increases their criminal liability if they violate the terms of the proposed measures. The draft's provision for exemption from criminal liability for adults but its failure to include this provision for juveniles is illogical.
3. Criminal liability of legal entities
The draft Penal Code (amended) stipulates the criminal liability of legal entities, but excludes legal entities that are State agencies, people's armed forces units, political organizations, and socio-political organizations.
In our opinion, the regulation of legal entity liability is consistent with the trends of society and countries around the world. Currently, many legal entities, driven by profit or other interests, have committed illegal acts that pose a significant danger to society and seriously infringe upon the rights of the State, organizations, and individuals. These illegal acts committed by legal entities are becoming increasingly common, especially in the fields of environmental protection, economic management, and the financial market. Meanwhile, the application of administrative and civil sanctions against illegal acts by legal entities has revealed many shortcomings; they lack sufficient deterrent power, and many legal entities are willing to pay penalties to continue violating the law, thus reducing the effectiveness of State management.
On the other hand, when prosecuted for criminal liability, legal entities and their representatives must participate in criminal proceedings, directly facing a rigorous and highly educational and deterrent procedural process of the State, especially through public trials in criminal court proceedings, which will have a higher deterrent and preventative effect on legal violations by legal entities.
Trong Hai
