THE NATIONAL ASSEMBLY
SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
Ha Noi, day 21 month 12 year 1999
Criminal law constitutes one of the sharp and effective instruments to prevent and combat crime, actively contributing to the defense of independence, sovereignty, unity and territorial integrity of the socialist Vietnamese Fatherland, the protection of the interests of the State as well as the legitimate rights and interests of citizens and organizations. It also contributes to the maintenance of social order and security and economic management order and provides security for all people to live in a safe, healthy and highly humane social and ecological environment. At the same time the criminal law actively contributes to doing away with elements which obstruct the process of renewal and national industrialization and modernization for a prosperous people, a strong country and an equitable and civilized society.
This Penal Code has been made on the basis of inheriting and promoting the principles and institutions of Vietnam’s criminal legislation, particularly the 1985 Penal Code, as well as experiences drawn from the reality of the struggle to prevent and combat crimes over many decades of the process of national construction and defense.
The Penal Code demonstrates the spirit of active prevention and resolute combat against crimes through penalties in order to deter, educate, convert and reform offenders into honest people; thereby to imbue every citizen with the spirit and sense of being masters of the society, the sense of law observance and active participation in crime prevention and combat.
To strictly implement the Penal Code is the common task of all agencies, organizations and the entire population.
Article 1.- The tasks of the Penal Code
The Penal Code has the tasks of protecting the socialist regime, the people’s mastership, equality among people of various nationalities, the interests of the State, the legitimate rights and interests of citizens and organizations, protecting the socialist law order, opposing all acts of criminal offense; at the same time educating people in the sense of law observance and struggle to prevent and combat crime.
In order to carry out such tasks, the Penal Code defines crimes and the penalties for offenders.
Article 2.- Basis of penal liabilities
Only those persons who have committed crimes defined by the Penal Code shall bear the penal liabilities therefore.
Article 3.- Handling principles
1. All acts of criminal offenses must be timely detected and handled in a prompt, just and enlightened manner in strict accordance with laws.
2. All offenders are equal before the law, regardless of their sex, nationality, beliefs, religion, social class and status.
To severely penalize conspirators, ringleaders, commanders, die-hard opposers, wrong-doers, hooligans, dangerous recidivists, those who have abused their positions and powers to commit crimes and those who have committed crimes with treacherous ploys, in an organized and professional manner, with intention to cause serious consequences.
To grant leniency to persons who make confessions, make honest declarations, denounce accomplices, redeem their faults with achievements, show repentance, voluntarily right themselves or make compensation for damage they have caused.
3. For first-time offenders of less serious crimes, who have shown their repentance, penalties lighter than imprisonment may be imposed, and they may be placed under the supervision and education of agencies, organizations or families.
4. For persons sentenced to imprisonment, they must be compelled to serve their sentences in detention camps, to labor and study so as to become persons useful to society; if they make marked progress, they shall be considered for commutation of their penalties.
5. Persons who have completely served their sentences shall be given conditions to work and live honestly, to integrate themselves into the community, and when they fully meet the conditions prescribed by law, their criminal records shall be wiped.
Article 4.- Responsibility to struggle for crime prevention and combat
1. The police, procuracy, court, judicial and inspection bodies and other concerned agencies shall fulfill their respective functions and tasks and at the same time guide and assist other State bodies, organizations and citizens in preventing and combating crime as well as in supervising and educating offenders at community level.
2. The agencies and organizations have a duty to educate people under their respective management in raising their vigilance, the sense of law protection and observance, and respect for the regulations of socialist life; to take timely measures to eliminate the causes of and conditions for committing crimes in their respective agencies and organizations.
3. All citizens have the obligation to actively participate in the struggle to prevent and combat crimes.
EFFECT OF THE PENAL CODE
Article 5.- The effect of the Penal Code on criminal acts committed in the territory of the Socialist Republic of Vietnam
1. The Penal Code applies to all acts of criminal offenses committed in the territory of the Socialist Republic of Vietnam.
2. For foreigners who commit offense in the territory of the Socialist Republic of Vietnam but are entitled to diplomatic immunities or consular privileges and immunities under Vietnamese laws, international treaties which the Socialist Republic of Vietnam has signed or acceded to or the international practices, their criminal liabilities shall be settled through diplomatic channels.
Article 6.- The effect of the Penal Code on criminal acts committed outside the territory of the Socialist Republic of Vietnam
1. Vietnamese citizens who commit offenses outside the territory of the Socialist Republic of Vietnam may be examined for penal liability in Vietnam according to this Code.
This provision also applies to stateless persons who permanently reside in the Socialist Republic of Vietnam.
2. Foreigners who commit offenses outside the territory of the Socialist Republic of Vietnam may be examined for penal liability according to the Penal Code of Vietnam in circumstances provided for in the international treaties which the Socialist Republic of Vietnam has signed or acceded to.
Article 7.- The temporal application of the Penal Code
1. The provision applying to a criminal act shall be the provision currently in force at the time such criminal act is committed.
2. Provisions defining a new offense, a heavier penalty, a new aggravating circumstance or restricting the scope of application of suspended sentences, the exemption of penal liability and/or penalties, the reduction of penalties or remission of criminal records, and other provisions not in favor of the offenders, shall not apply to acts of criminal offense committed before such provisions take effect.
3. Provisions canceling an offense, a penalty, an aggravating circumstance and/or defining a lighter penalty, an extenuating circumstance or broadening the scope of application of suspended sentences, the exemption of penal liability, penalties, the reduction of penalties, the remission of criminal records and other provisions in favor of the offenders, shall apply to acts of criminal offenses committed before such provisions take effect.
Article 8.- Definition of crime
1. A crime is an act dangerous to the society prescribed in the Penal Code, committed intentionally or unintentionally by a person having the penal liability capacity, infringing upon the independence, sovereignty, unity and territorial integrity of the Fatherland, infringing upon the political regime, the economic regime, culture, defense, security, social order and safety, the legitimate rights and interests of organizations, infringing upon the life, health, honor, dignity, freedom, property, as well as other legitimate rights and interests of citizens, and infringing upon other socialist legislation.
2. Based on the nature and extent of danger to the society of acts prescribed in this Code, crimes are classified into less serious crimes, serious crimes, very serious crimes and particularly serious crimes,
3. Less serious crimes are crimes which cause no great harm to society and the maximum penalty bracket for such crimes is three years of imprisonment; serious crimes are crimes which cause great harm to society and the maximum penalty bracket for such crimes is seven years of imprisonment; very serious crimes are crimes which cause very great harm to society and the maximum penalty bracket for such crimes is fifteen years of imprisonment; particularly serious crimes are crimes which cause exceptionally great harms to society and the maximum penalty bracket for such crimes shall be over fifteen years of imprisonment, life imprisonment or capital punishment.
4. Acts showing signs of crime but which pose minimal danger to society are not crimes and shall be handled by other measures.
Article 9.- Intentional commission of crimes
The intentional commission of a crime is commission of crime in the following circumstances:
1. The offenders are aware that their acts are dangerous to society, foresee the consequences of such acts and wish such consequences to occur;
2. The offenders are aware that their acts are dangerous to society, foresee the consequences that such acts may entail and do not wish, but consciously allow, such consequences to occur.
Article 10.- Unintentional commission of crimes
The unintentional commission of a crime is commission of crime in the following circumstances:
1. The offenders foresee that their acts may cause harmful consequences to society, but think that such consequences shall not occur or can be warded off;
2. The offenders do not foresee that their acts may cause harmful consequences to the society though they must have foreseen or did foresee such consequences.
Article 11.- Unexpected events
Persons who commit acts which cause harmful consequences to the society due to unexpected events, namely in circumstances which they cannot, or are not compelled to, foresee the consequences of such acts, shall not have to bear penal liability therefor.
Article 12.- Ages subject to penal liability
1. Persons aged full 16 or older shall have to bear penal liability for all crimes they commit.
2. Persons aged full 14 or older but under 16 shall have to bear penal liability for very serious crimes intentionally committed or particularly serious crimes.
Article 13.- The state of having no penal liability capacity
1. Persons who commit acts dangerous to the society while suffering from mental disease or disease which deprives them of their capability to be aware of or to control their acts, shall not have to bear penal liability therefore; to these persons, the measure of enforced hospitalization shall apply.
2. Persons who commit crimes while having penal liability but falling into the state prescribed in Clause 1, of this Article, before being sentenced, shall be subjected to enforced hospitalization. After recovering from the illness, such persons may bear penal liability.
Article 14.- Committing crimes while in the state of being intoxicated due to the use of alcohol or other strong stimulants
Persons who commit crimes while in the state of being intoxicated due to the use of alcohol or other strong stimulants shall still bear penal liability therefor.
Article 15.- Legitimate defense
1. Legitimate defense is an act of persons who, for the purpose of protecting the interests of the State and/or organizations, as well as the legitimate rights and interests of their own or other persons, need to fight against persons who are committing acts infringing upon the interests of the above-mentioned.
Legitimate defense is not a crime.
2. Acting beyond the prescribed legitimate defense limit is the act of fighting back in a manner incompatible with the nature and the extent of danger posed to the society by the act of infringement.
Persons who act beyond the limit of legitimate defense shall bear penal liability therefore.
Article 16.- Urgent circumstances
1. The urgent circumstance is the circumstance in which persons who, because of wanting to ward off a danger practically jeopardizing the interests of the State and/or organizations, the legitimate rights and interests of their own or other persons and having no other alternatives, have to cause damage smaller than the damage to be warded off.
Acts causing damage in urgent circumstances are not crimes.
2. Where the damage caused is obviously beyond the requirement of the urgent circumstance, the persons who cause such damage shall bear penal liability therefor.
Article 17.- Preparation for crime commission
Preparation for crime commission is to search for, prepare instruments or create other conditions for committing crimes.
Persons who prepare for the commission of a very serious crime or a particularly serious crime shall bear penal liability for their attempted crime.
Article 18.- Incompleted commission of a crime
Incompleted commission of a crime is an intentional commission of a crime which cannot be carried out to the end due to causes beyond the control of the offender.
Persons who commit incompleted crimes shall bear penal liability therefore.
Article 19.- Voluntary termination of unfinished crimes
To voluntarily terminate the commission of a crime is to refuse at one’s own will to carry out a crime to the end though nothing stands in the way.
A person who voluntarily terminates the commission of a crime shall be exempt from penal liability for the attempted crime; if the act actually committed fully consists of elements of another crime, such person shall bear penal liability for such crime.
Article 20.- Complicity
1. Complicity is where two or more persons intentionally commit a crime.
2. The organizers, executors, instigators and helpers are all accomplices.
The executors are those who actually carry out the crimes.
The organizers are those who mastermind, lead and direct the execution of crimes.
The instigators are those who incite, induce and encourage other persons to commit crimes.
The helpers are those who create spiritual or material conditions for the commission of crimes.
3. The organized commission of a crime is a form of complicity with close collusion among persons who jointly commit the crime.
Article 21.- Concealment of crimes
Any person who, though having not earlier promised anything, knows a crime has been committed and conceals the offender, traces and/or exhibits of the crime or commits the act of obstructing the detection, investigation and/or handling of the offender, shall bear penal liability for the concealment of crime as provided for by this Code.
Article 22.- Non-denunciation of crimes
1. Any person who knows a crime is being prepared, carried out or has been completed but fails to denounce it shall bear penal liability for having failed to denounce it as provided for in Article 313 of this Code.
2. The grand-father, grand-mother, father, mother, offspring, grandchild, sibling, wife or husband of an offender, who fails to denounce the latter’s crime, shall bear penal liability only in cases of failing to denounce crimes against national security or particularly serious crimes prescribed in Article 313 of this Code.
STATUTE OF LIMITATION FOR PENAL LIABILITY EXAMINATION,
Article 23.- Statute of limitation for penal liability examination
1. The statute of limitation for penal liability examination is the time limit prescribed by this Code upon the expiry of which the offender shall not be examined for penal liability.
2. The statute of limitation for penal liability examination is stipulated as follows:
a) Five years for less serious crimes;
b) Ten years for serious crimes;
c) Fifteen years for very serious crimes;
d) Twenty years for particularly serious crimes.
3. The statute of limitation shall begin from the date a crime is committed. If within the time limit prescribed in Clause 2 of this Article, the offender commits a new crime for which this Code stipulates a maximum penalty of over one year, the time already past must not be counted and the statute of limitation for the previous crime shall be re-calculated from the date the new crime is committed.
If within the above-said time limit, the offender deliberately flees and is being hunted for by warrant, the time of fleeing away must not be counted and the statute of limitation shall be re-calculated from such time the person gives him/herself up or is arrested.
Article 24.- Non-application of statute of limitation for penal liability examination
The statute of limitation for penal liability examination prescribed in Article 23 of this Code shall not apply to crimes provided for in Chapter XI and Chapter XXIV of this Code
Article 25.- Penal liability exemption
1. An offender shall be exempt from penal liability if during the investigation, prosecution or trial, due to a change of situation, the act of criminal offense of the offender is no longer dangerous to the society.
2. If before the act of criminal offense is detected, the offender gives him/herself up and clearly declares and reports facts, thus effectively contributing to the detection and investigation of the crime and trying to minimize the consequences of the crime, he/she may also be exempt from penal liability.
3. Offenders shall be exempt from penal liability when there are decisions on general amnesties.
Article 26.- Definition of penalty
Penalty is the most severe coercive measure applied by the State so as to strip or restrict the rights and interests of the offenders.
Penalties are provided for in the Penal Code and decided by the court.
Article 27.- The purpose of penalty
Penalties aim not only to punish offenders but also to rehabilitate them into persons useful to society and having the sense of observing laws and regulations of the socialist life, preventing them from committing new crimes. Penalties also aim to educate other people to respect laws and prevent and combat crimes.
Article 28.- Penalties
Penalties include principal penalties and additional penalties.
1. The principal penalties include:
c) Non-custodial reform;
e) Termed imprisonment;
f) Life imprisonment;
g) Death penalty.
2. The additional penalties include:
a) Ban from holding certain posts, practicing certain occupations or doing certain jobs;
b) Ban on residence;
d) Deprivation of some civic rights
e) Confiscation of property;
f) Fine, when it is not applied as a principal penalty;
g) Expulsion, when it is not applied as a principal penalty.
3. For each offense, the offender shall be subject to only one principal penalty and may be subject to one or more additional penalties.
Article 29.- Warning
Warning applies to offenders of less serious crimes involving extenuating circumstances not warranting penalty exemption.
Article 30.- Fine
1. Fine is applied as a principal penalty to offenders of less serious crimes of infringing upon the economic management order, public order, administrative management order and a number of other crimes prescribed by this Code.
2. Fine is applied as an additional penalty to persons who commit corruption or drug-related crimes or other crimes prescribed by this Code.
3. The fine level shall depend on the nature and seriousness of the crimes committed and take into account the property situation of the offenders and the fluctuation of prices, but must not be lower than one million dong.
4. The fine money can be paid in a lump sum or installments within the time limits decided by the courts in judgements.
Article 31.- Non-custodial reform
1. Non-custodial reform of between six months and three years applies to persons committing less serious crimes or serious crimes prescribed by this Code who have stable working places or clear residence places if it is deemed unnecessary to separate the offenders from society.
If a sentenced person has been held in custody and/or detained, the time spent in custody and/or detention shall be subtracted from the total period of their non-custodial reform, with one day of custody and/or detention being equal to three days of non-custodial reform.
2. The courts shall assign the persons subject to non-custodial reform to the agencies or organizations where such persons work or to the authorities of the places where such persons permanently reside for supervision and education. The sentenced persons families shall have to coordinate with agencies, organizations and local authorities in the supervision and education of such persons.
3. The sentenced persons shall have to perform a number of duties according to the provisions on non-custodial reform and be subject to between 5% and 20% deduction of their incomes for remittance into the State’s fund. For special cases, the courts may order the exemption of income deduction, but must clearly inscribe the reasons for such exemption in the judgement .
Article 32.- Expulsion
Expulsion means to order sentenced foreigners to depart from the territory of the Socialist Republic of Vietnam.
Expulsion is applied by courts either as a principal penalty or an additional penalty, depending on each specific case.
Article 33.- Termed imprisonment
Termed imprisonment means forcing the sentenced persons to serve their penalties at detention camps for a certain period of time. The termed imprisonment for persons who commit one crime shall range from the minimum level of three months to the maximum level of twenty years.
Time spent in custody and/or detention prior to sentencing shall be subtracted from the duration of the term of imprisonment penalty with one day of custody and/or detention being equal to one day of imprisonment.
Article 34.- Life imprisonment
Life imprisonment is the penalty of indefinite imprisonment applicable to persons who commit particularly serious crimes, but not so as to warrant being sentenced to death.
Life imprisonment shall not apply to juvenile offenders.
Article 35.- Death penalty
Death penalty is a special penalty only applied to persons committing particularly serious crimes.
Death penalty shall not apply to juvenile offenders, pregnant women and women nursing children under 36 months old at the time of committing crimes or being tried.
Death penalty shall not apply to pregnant women and women nursing their children under 36 months old. For these cases, the death penalty shall be converted into life imprisonment.
In cases where persons sentenced to death enjoy commutation, the death penalty shall be converted into life imprisonment.
Article 36.- Ban from holding certain posts, ban from practicing certain occupations or doing certain jobs
The ban from holding certain posts, ban from practicing certain occupations or doing certain jobs shall apply when it is deemed that to allow the sentenced persons to hold such posts, practice such occupations or do such jobs, may cause harm to society.
The ban duration ranges from one year to five years from the date the imprisonment penalty is completely served or the judgement takes legal effect if the principal penalty is a warning, fine, non-custodial reform or in cases where persons are sentenced to a suspended sentence.
Article 37.- Ban from residence
Ban from residence means forcing persons sentenced to imprisonment not to take temporary or permanent residence in certain localities.
The residence ban duration ranges from one year to five years from the date the imprisonment penalty is completely served.
Article 38.- Probation
Probation means forcing the sentenced persons to reside, earn their living and reform themselves in a certain locality under the supervision and education of the local administration and people. During the probation period, the sentenced persons must not leave their residence places and are deprived of a number of civic rights according to Article 39 of this Code and banned from practicing certain occupations or doing certain jobs.
Probation applies to persons who commit crimes infringing upon national security, dangerous recidivists or in other cases stipulated by this Code.
The probation duration ranges from one year to five years from the date the imprisonment penalty is completely served.
Article 39.- Deprivation of certain civic rights
1. A Vietnamese citizen sentenced to imprisonment for his/her crime of infringing upon national security or committing another crime prescribed by this Code shall be deprived of the following civic rights:
a) The right to stand for election and to elect deputies to the State power bodies;
b) The right to work in the State bodies and to render service in the people’s armed forces.
2. The time limits for civic right deprivation range from one year to five years after the imprisonment penalty is completely served or the judgement takes legal effect in casew where the sentenced person enjoys a suspended sentence.
Article 40.- Confiscation of property
Confiscation of property means to confiscate part or whole of the sentenced person’s property for remittance into the State’s fund. The property confiscation shall apply only to persons sentenced for serious crimes, very serious crimes or particularly serious crimes prescribed by this Code.
When all their property is confiscated, the sentenced persons and their families shall still be left with conditions to live.
Article 41.- Confiscation of objects and money directly related to crimes
1. The property confiscation for State funds shall apply to:
a) Tools and means used for the commission of crimes;
b) Objects or money acquired through the commission of crime or the trading or exchange of such things;
c) Objects banned from circulation by the State.
2. Things and/or money illegally seized or used by offenders shall not be confiscated but returned to their lawful owners or managers.
3. Things and/or money of other persons, if these persons are at fault in letting offenders use them in the commission of crimes, may be confiscated for State funds.
Article 42.- Return of property, repair or compensation for damage; compelling to make public apologies
1. Offenders must return appropriated property to their lawful owners or managers and repair or compensate for material damage determined as having been caused by their offenses.
2. In case of moral damage caused by the offense, the court shall compel the offenders to make material compensation and public apologies to the victims.
Article 43.- Compulsory medical treatment
1. For persons who commit acts dangerous to society while they are suffering from the diseases prescribed in Clause 1, Article 13 of this Code, depending on the procedural stages, the procuracies or the court, basing themselves on the conclusion of the Medical Examination Council, may decide to send them to specialized medical establishments for compulsory medical treatment; if deeming it unnecessary to send them to specialized medical establishments, it may assign such persons to the care of their families or guardians under the supervision of competent State bodies.
2. For persons who commit crimes while having penal liability capacity but, before being sentenced, they have suffered from illness to the extent of losing their cognitive capability or the capability to control their acts, the courts, basing themselves on the conclusion of the Medical Examination Council, may decide to send them to specialized medical establishment for compulsory treatment. After their recovery from illness, such persons may bear penal liability.
3. For persons who are serving their penalties but are suffering from illness to the extent of losing their cognitive capability or the capability to control their acts, the courts, basing themselves on the conclusion of the Medical Examination Council, may decide to send them to specialized medical establishments for compulsory treatment. After their recovery from illness, such persons shall continue serving their penalties, if they have no reasons for exemption from serving their penalties.
Article 44.- The compulsory medical treatment duration
Based on the conclusion of the medical treatment establishments, if the persons compelled to have medical treatment as provided for in Article 43 of this Code have recovered from illness, depending on the procedural stages, the procuracies or the courts shall consider and decide to suspend the application of this measure.
The compulsory medical treatment duration shall be subtracted from the term of imprisonment imposed.
Article 45.- Bases for deciding penalties
When deciding penalties, the courts shall base themselves on the provisions of the Penal Code, taking into consideration the nature and extent of danger posed to society by the acts of offense, the personal records of the offenders, and any circumstances that extenuate or aggravate the penal liability.
Article 46.- Circumstances extenuating penal liability
1. The following circumstances are considered as extenuating the penal liability:
a) Offenders have prevented and/or reduced the harm caused by their offenses;
b) Offenders volunteer to repair, compensate for the damage or overcome the consequences;
c) Crimes are committed in cases where it is beyond the limit of legitimate defense;
d) Crimes are committed in cases where it is beyond the requirements of the urgent situation;
e) Crimes are committed in cases where offenders are mentally incited by the illegal acts of the victims or other persons;
f) Crimes are committed due to particular difficulty plights not caused by themselves;
g) Crimes are committed but no damage or minor damage is caused;
h) Crimes are committed by first time offenders and in cases of less serious crimes;
i) Crimes are committed due to threats and/or coercion by other persons;
j) Crimes are committed due to ignorance;
k) Offenders are pregnant women;
l) Offenders are aged persons;
m) Offenders are persons suffering from illnesses that restrict their cognitive capability or the capability to control their acts;
n) Offenders give themselves up;
o) Offenders make honest declarations and reports and show their repentance;
p) Offenders who actively help responsible bodies detect and investigate the crimes;
q) The offenders have redeemed their faults with achievements;
r) The offenders are persons who have recorded outstanding achievements in production, combat, study or work.
2. When deciding penalties, the court may also consider other circumstances as extenuating, but must clearly inscribe them in the judgment.
3. The extenuating circumstances which have been prescribed by the Penal Code as signs for determining crimes or determining the penalty bracket shall not be considered extenuating circumstances for the purpose of deciding penalties.
Article 47.- Deciding penalties lighter than those prescribed by the Penal Code
Where there exist at least two extenuating circumstances as provided in Clause 1, Article 46 of this Code, the courts may decide a penalty under the lowest level of the penalty bracket stipulated by the law, which, however, must lie within the adjacent lighter penalty bracket of the law; where the law contains only one penalty bracket or such penalty bracket is the highest penalty bracket of the law, the courts may decide a penalty below the lowest level of the bracket or move to another penalty of lighter category. The reasons for such reduction must be clearly inscribed in the judgement.
Article 48.- Circumstances aggravating the penal liability
1. Only the following circumstances are considered circumstances aggravating penal liability:
a) Committing crimes in an organized manner;
b) Committing crimes in a professional manner;
c) Abusing positions and powers in order to commit crimes;
d) Committing crimes in a hooligan manner;
e) Committing crimes with despicable motivation;
f) Intentionally carrying out crimes to the end;
g) Re-offending, recidivism, dangerous recidivism;
h) Committing crimes against children, pregnant women, aged persons, persons unable to defend themselves or persons dependent on offenders in material and/or moral conditions, work or other ways;
i) Infringing upon the State’s property;
j) Committing crimes causing serious, very serious or particularly serious consequences;
k) Taking advantage of war conditions, emergency situations, natural calamities, epidemics or other special difficulties of society in order to commit crimes;
l) Using treachery or, cruel tricks to commit crimes and/or using means capable of causing harm to many persons;
m) Inciting juveniles to commit crimes;
n) Committing treacherous and/or violent acts in order to shirk or conceal crimes.
2. Circumstances which are constituents of a crime or determine the penalty bracket shall not be considered aggravating circumstances.
Article 49.- Recidivism, dangerous recidivism
1. Recidivism means cases where offenders have been sentenced and have not yet had their criminal records wiped out but again commit crimes intentionally or commit very serious crime or particularly serious crimes unintentionally.
2. The following cases are considered dangerous recidivism:
a) Offenders have been sentenced for very serious crimes or particularly serious crimes committed intentionally, have not yet had their criminal records wiped out but again commit very serious crimes or particularly serious crimes unintentionally;
b) Offenders have relapsed into crime, not yet had their criminal records wiped out but again commit crimes intentionally.
Article 50.- Deciding penalties in cases where more than one crime is committed
When trying a person who has committed more than one crime, the court shall decide a penalty for each crime, then augment the penalties according to the following regulations:
1. With regard to principal penalties
a) If the penalties already declared are all non-custodial reform or all termed imprisonment, such penalties shall be added together into a common penalty; the common penalty must not exceed three years for non-custodial reform, and thirty years for termed imprisonment;
b) If the penalties already declared are non-custodial reform and termed imprisonment, the non-custodial reform shall be converted into imprisonment penalties according to the ratio that three days of non-custodial reform shall be converted into one day of imprisonment in order to make the common penalty as prescribed at Point a, Clause 1 of this Article;
c) If the heaviest penalty among the already declared penaties is life imprisonment, the common penalty shall be life imprisonment;
d) If the heaviest penalty among the already declared penalties is the death sentence, the common penalty shall be the death sentence;
e) Pecuniary penalties shall not be augmented with other types of penalty; the fine amounts shall be added up into the common fine;
f) Expulsion shall not be augmented with other types of penalty.
2. For additional penalties
a) If the already declared penalties are of the same type, the common penalty shall be decided within the time limit prescribed by this Code for such type of penalty; particularly for pecuniary penalties, the fine amounts shall be added up into the common fine;
b) If the already declared penalties are of different types, the sentenced persons shall have to serve all the declared penalties.
Article 51.- To augment penalties of many judgements
1. In cases where a person who is serving a sentence is tried for a crime which had been committed before such sentence, the court shall decide the penalty for the crime being tried, then decide the common penalty as provided for in Article 50 of this Code.
The time served for the previous sentence shall be deducted from the term of the common penalty.
2. When a person who is serving a sentence and commits a new crime is tried , the court shall decide the penalty for the new crime, then add it to the remainder of the previous sentence before deciding the common penalty as provided for in Article 50 of this Code.
3. In cases where a person has to serve many sentences which have already taken legal effect while the penalties have not yet been augmented, the chief judge of the Court shall decide the augmentation of the sentences as provided for in Clause 1 and Clause 2 of this Article.
Article 52.- Deciding penalties in case of preparation for crime commission, incompleted commission of crime
1. For acts of preparing to commit crimes and acts of committing incomplete crimes, the penalties shall be decided according to the provisions of this Code on corresponding crimes, depending on the nature and the extent of danger to the society of such acts, the extent of realizing the intention to commit crimes and other circumstances that make the crimes not carried out to the end.
2. For cases of preparing to commit crimes, if the applicable law provision stipulates the highest penalty is life imprisonment or the death sentence, the applicable highest penalty shall not exceed twenty years of imprisonment; if it is termed imprisonment, the penalty shall not exceed half of the imprisonment term prescribed by the law provision.
3. For cases of incomplete offense, if the applicable law provision stipulates the highest penalty being the life imprisonment or death sentence, these penalties can only apply to particularly serious cases; if it is termed imprisonment, the penalty level shall not exceed three quarters of the imprisonment term prescribed by the law provision.
Article 53.- Deciding penalties in cases of complicity
When deciding penalties for accomplices, the court shall take into account the nature of complicity and the nature and extent of involvement of each accomplice.
Extenuating, aggravating or penal liability exemption circumstances of any accomplice shall only apply to such accomplice.
Article 54.- Penalty exemption
Persons who commit crime may be exempt from penalties in case where the crime commission involves many extenuating circumstances as provided by Clause 1, Article 46 of this Code, deserving special leniency, but not to the extent of penal liability exemption.
STATUTE OF LIMITATION FOR EXECUTION OF JUDGEMENT, EXEMPTION FROM THE PENALTY EXECUTION, REDUCTION OF PENALTY TERM
Article 55.- Statute of limitation for judgement execution
1. The statute of limitation for execution of a criminal judgement is the time limit prescribed by this Code upon the expiry of which the sentenced person shall not have to abide by the declared judgement.
2. The statute of limitation for execution of a criminal judgement is stipulated as follows:
a) Five years for cases of pecuniary penalty, non-custodial reform or imprisonment of three years or less;
b) Ten years for cases of imprisonment of between over three years and fifteen years;
c) Fifteen years for cases of imprisonment of between over fifteen years and thirty years.
3. The statute of limitation for execution of a criminal judgement shall be calculated from the date the judgement takes legal effect. If during the time limits prescribed in Clause 2 of this Article, the sentenced person again commits a new crime, the past duration shall not be counted and the statute of limitations shall be recalculated as from the date the new crime was committed.
If during the time limits provided for in Clause 2, this Article, the sentenced person deliberately escapes and is the subject of a search warrant, the duration of escape shall not be counted and the statute of limitation shall be recalculated as from the date such person surrenders him/herself or is arrested.
4. The application of statute of limitation to cases of life imprisonment or death sentence, after going through the period of fifteen years, shall be decided by chairman of the Supreme People’s Court at the request of the chairman of the Supreme People’s Procuracy. In cases where the application of the statute of limitation is not allowed, the death penalty shall be converted into the life imprisonment and the life imprisonment into thirty years of imprisonment.
Article 56.- Non-application of statute of limitations for execution of judgement
The statue of limitation for judgement execution shall not apply to crimes prescribed in Chapter XI and Chapter XXIV of this Code.
Article 57.- Exemption from penalty execution
1. For persons sentenced to non-custodial reform, termed imprisonment, who have not executed their judgements but have recorded great achievements or suffered from dangerous disease and if such persons are no longer dangerous to the society, the court may decide, at the proposal of the Procuracy director, to exempt the person from the execution of the entire penalty.
2. Sentenced persons shall be exempt from penalty execution when they are granted a special parole or general amnesty.
3. For persons sentenced to imprisonment for less serious crimes who have been entitled to a reprieve as provided for in Article 61 of this Code, if during the period of reprieve they have recorded great achievements, the court, at the proposal of the Procuracy director, may decide to exempt them from penalty execution.
4. For persons sentenced for less serious crimes who have been entitled to a temporary suspension as provided for in Article 62 of this Code, if during the period of temporary suspension they have recorded great achievements, the court, at the proposal of the Procuracy director, may decide to exempt them from the execution of the remainder of their penalties.
5. For persons who are penalized with a ban on residence or probation, if they have served half of their penalties term and re-habilitated themselves, the court, at the proposal of the administration of the localities where such persons serve their penalties, may decide to exempt them from the execution of the remaining half of their penalties.
Article 58.- Reduction of the declared penalties
1. For persons sentenced to non-custodial reform, if having served the penalty for a given period and made progress, the court, at the proposal of the agencies, organizations or local administration which have been assigned the responsibility to directly supervise and educate them, may decide to reduce the penalty term.
For persons sentenced to imprisonment, if having served the penalty for a given period and made progress, the courts, at the proposal of the imprisonment enforcement agencies, may decide to reduce the penalty term.
The time for which the penalty has been served in order to be considered for the first reduction shall represent one-third of the term for the non-custodial reform, for imprisonment of thirty years or under, and twelve years for life imprisonment.
2. For persons sentenced to pecuniary penalty who have served a part of their respective penalties but fell into a prolonged particularly difficult economic situation due to natural calamities, fires, accidents or ailments which render them unable to continue serving the remainder of the penalties, or who have recorded great achievements, the courts, at the proposal of the directors of the procuracies, may decide to exempt them from the execution of the remainder of their pecuniary penalties.
3. A person may be entitled to many reductions but have to execute half of the declared penalty. For persons sentenced to life imprisonment, the sentence shall be commuted for the first time to thirty years of imprisonment and despite many reductions, the actual duration of penalty served must be a minimum of twenty years.
4. For persons who have enjoyed partial reduction of their penalty but again committed new serious, very serious or particularly serious crimes, the courts shall consider the reduction for the first time after such persons have already served two-thirds of their common penalty or twenty years if it is life imprisonment.
Article 59.- Reduction of penalty term in special cases
For convicted persons who deserve additional leniency for reasons such as recording achievements, being too old and weak or suffering from dangerous diseases, the courts may consider the reduction at an earlier time or with higher levels compared with the time and levels prescribed in Article 58 of this Code.
Article 60.- Suspended sentence
1. When handing down a sentence of imprisonment, not exceeding three years the court shall, basing itself on the personal identification of the offender and extenuating circumstances, and if deeming it unnecessary to impose an imprisonment penalty, hand down a suspended sentence and set a period under test from one to five years.
2. During the test period, the court shall assign the offender to the agency or organization where such person works or the administration of the locality where he/she permanently resides for supervision and education. The convicted person’s family has the responsibility to coordinate with the agency, organization or local administration in supervising and educating such person.
3. The persons entitled to suspended sentence may be subject to additional penalties including fines, ban from holding certain posts, practicing certain occupations or doing certain jobs as prescribed in Article 30 and Article 36 of this Code.
4. For persons entitled to suspended sentence who have served half of the probation time and made progress, at the proposals of the agencies and organizations which have the responsibility to supervise and educate them, the court may decide to shorten the probation period.
5. For persons entitled to suspended sentence who commit new crimes during their probation period, the courts shall decide the compulsory execution of the penalty of the previous sentence and sum it up with the penalty of the new sentence as provided for in Article 51 of this Code.
Article 61.- Postponing the serving of imprisonment penalty
1. Persons sentenced to imprisonment may be entitled to a reprieve in the following cases where:
a) They suffer from serious illness, they shall be entitled to a reprieve until their recovery;
b) Women who are pregnant or nursing their children of under 36 months old, shall be entitled to a postponement of their penalty until their children reach the age of 36 months;
c) They are the only laborers in their respective families and if they serve the imprisonment penalty their families shall meet with special difficulties, they shall be entitled to the postponement for up to one year, except where they are sentenced for crimes of infringing upon the national security or other very serious or particularly serious crimes;
d) They are sentenced for less serious crimes and due to the requirements of official duties, they shall be entitled to the postponement for up to one year.
2. If during the period of reprieve the person entitled thereto commits a new crime, the court shall force such person to serve the previous penalty and add it to the penalty of the new judgment as prescribed in Article 51 of this Code.
Article 62.- Suspending the imprisonment penalty
1. Persons who are serving imprisonment penalties and fall into one of the cases prescribed in Clause 1, Article 61 of this Code, may be entitled to a temporary suspension of their imprisonment penalties.
2. The time of temporary suspension must not be calculated into the penalty serving term.