VIETNAM ACADEMY OF SOCIAL SCIENCES
GRADUATE ACADEMY OF SOCIAL SCIENCES

HOANG DAT NAM

CRIMES ON ROAD TRAFFIC SAFETY ACCORDING TO
CRIMINAL LAW FROM THE PRACTICAL TRIALS OF
MILITARY COURTS IN VIETNAM

Major
Code

: Criminal law and Criminal Procedure law
:
9 38 01 04

SUMMARY OF DOCTORAL THESIS IN LAW

HANOI, 2019


The Doctoral thesis was completed at:
GRADUATE ACADEMY OF SOCIAL SCIENCES

Supervisor: Assoc Prof. Dr. Cao Thi Oanh

Reviewer 1: Assoc Prof. Dr. Tran Dinh Nha
Reviewer 2: Assoc Prof. Dr. Pham Van Loi

Reviewer 3: Dr. Nguyen Van Diep


been reducing, but still accounting for a high proportion of the total
crimes number. The number of cases and the number of defendants
which are being convicted on road traffic safety crimes tend to
decrease, but the dangerous feature is increasing.
The Penal Code 1999, The Penal Code 2015, The Penal Code
2015 (amended and supplemented in 2017) have amended and
supplemented provisions about road traffic safety crimes. However,
The Penal Code 2015 (amended and supplemented in 2017) still has
technical inadequacies related to the consistency between the
common part and the criminal part, elements of crimes, elements of
crime frames, complex crimes, penalty frameworks that affect on the
implementation and application of the Penal Code provisions in
practice. Besides, documents explaining and guiding the application
of the law are not updated so authorities often face many difficulties
in applying road traffic law to solve those crimes.
Over the time, criminal cases related to the military are
increasing, including road traffic safety crimes which have a high
proportion and cause significant damage to the military and affect the
honor and prestige of the military. The Military Courts (MCs) are the
judicial bodies of the Socialist Republic of Vietnam. They belong to
the People's Court system (People's Court) but are held in the military
and perform the function of judicial tasks according to provisions of
law. Within the scope of their functions, the MCs have the task of
protecting socialist legislation; protecting the socialist regime and the
people's mastery; protecting security, discipline and combating power
of the military; protecting the assets of the state and the people,
protecting the life, health, property, freedom, honor and dignity of
military servents, civil servants, workers and other citizens. The MCs



application of crimes on road traffic safety.
2.2. Missions
Clarifying legal concepts and characteristics of road traffic
offenses; characteristics of road traffic safety crimes under the
jurisdiction of the MCs; the process of development of Vietnam's
criminal law from 1945 up to now regulates those crimes.


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Analyzing the provisions of the Penal Code and guiding
documents to clarify legal signs of specific offenses of road traffic
safety.
Reviewing trial results on road traffic safety crimes of the
military courts in Vietnam; assessing inadequacies and limitations in
applying the current Penal Code on crimes on road traffic safety;
pointing out their causes.
Assessing the practical determination of criminal charges and
deciding penalties for crimes on road traffic safety from the practice
of MCs in Vietnam.
Furthermore, proposing some recommendations and solutions to
perfect the current law provisions on road traffic safety crimes.
3. Objects and scope of the thesis
3. 1. Objects of the thesis
The provisions of Vietnamese criminal law and some countries’
in the world on road traffic safety crimes;
Scientific and practical perspectives on the application of laws
on road traffic offenses from the practice of trial in the MCs in
Vietnam.
3.2. Scope of the thesis
The thesis is researched and approached under the perspective of

solutions, proposals to improve the law and to improve the efficiency
in handling those cases of the MCs in the future.
5.2. General new contributions of the thesis
The thesis is an in-depth study on road traffic safety crimes. By
generalizing the views on road traffic safety offenses, criminal law
provisions on that crimes group as well as clarifying reasonable and
limited points in the process of legalization of those regulations and
the process of applying those regulations in the practical trial of
Vietnamese MCs, the thesis has clarified some limitations and
obstacles in applying the provisions of the Penal Code and Civil
Code on road traffic safety crimes in general and the practice of
determining criminal charges. deciding on penalties for those crimes
in particular, and point out the effects and causes of such obstacles.
Since then, the thesis proposes solutions and recommendations to
improve the provisions of Vietnamese Penal Code on those crimes as
well as improve the efficiency in trial activities on that crimes group.
6. Scientific and practical meanings of the thesis
6.1. Scientific meanings
The thesis contributes to supplement and perfection the theory of
offenses on road traffic safety which can be used as material for
teaching, learning and scientific research in the fields of criminal law
science and crime studies.
6.2. Practical meanings
The thesis is the basis for legislative agencies to consider,
amend, supplement and perfect the criminal law provisions on
criminal offenses of road traffic safety; is the basis for agencies,


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organizations and units, especially MCs in Vietnam to apply

"Crimes of infringement on road traffic safety according to
Vietnamese criminal law (based on data of Binh Phuoc province)" in
2013 by Tran Van Thao. Master's thesis of Law "Crimes of violating
regulations on controlling road vehicles from the reality of military
courts in Vietnam nowadays" in 2015 by Le Ngoc Tuan...
In addition, some authors studied some specific problems of
those crimes, such as determining crime, determining errors: Postgrad syllabus: “General theories on crimes determination” of Prof.
Dr. Vo Khanh Vinh; “Changing the definition of crimes, some
theoretical and practical issues”, published in the Journal of People's
Court in 2003 of Prof. Dr. Vo Khanh Vinh; Cao Viet Cuong “Some
recommendations to improve the provisions of Article 202 Criminal
Code 1999 on violating regulations on controlling road vehicles”,
Journal of People's Courts, No. 4/2014; etc…
1.3. Evaluate the research situation
1.3.1. Research results that the thesis will inherit, continue to
develop
The research and articles have clarified many contents related to
traffic safety crimes in general, have given some concepts about
crimes of infringing on order and safety of transport, or the concepts
of road traffic order or safety crimes or the concept of public order
and public safety crimes. However, those research only briefly
touched these issues and have not specified the classification of road
traffic safety crimes.
After the Penal Code 2015 (amended and supplemented in
2017), the acts of those crime constitutes changed, affecting the
application of legal provisions in practice. There are still difficulties
and limitations that need to be adjusted in accordance with the trial
practice as well as the requirements of the society, even though the
Penal Code has just been issued.
1.3.2. Remaining issues should be continued to study in the

Chapter 2
THEORETICAL AND LEGAL MATTERS ON ROAD
TRAFFIC SAFETY CRIMES
2.1. Concepts, elements of crimes of infringing upon road
traffic safety and characteristics of those crimes under the
jurisdiction of military courts in Vietnam
2.1.1. Concepts, elements of crimes of infringing upon road
traffic safety
Based on the concept of crimes in general and views on crimes
of infringing upon road traffic safety, the thesis has pointed out the
specific elements of road traffic safety offenses, including:
* The first element of a road traffic safety crime is a dangerous
act for the society
* The second element of a road traffic safety crime is being
regulated in the Penal Code
* The third element of a road traffic safety crime is a behavior of
a person with criminal responsibility
* The fourth element of a road traffic safety crime is error of
crime
* The fifth element of a road traffic safety crime is being
punished
Based on above elements, we proposed the following concept of
road traffic safety offenses:
Crimes of infringing upon traffic safety are dangerous acts to
the society, stipulated in the Penal Code, committed by persons with
criminal responsibility and their mistakes, infringe upon road traffic
safety, causes damage to life or serious damage to the health,
property of others or property of the state and society.
2.1.1.2. Crimes factors of infringing upon road traffic safety
* Object of road traffic safety offenses

traffic participation with some other related crimes in the Penal
Code
* Differentiate against violations of regulations on road traffic
and illegal racing
* Differentiate against violations of regulations on road traffic
with murder
* Distinguishing offenses of violating regulations on road traffic
participation and unintentional offenses


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* Distinguish the offense of violating regulations on road traffic
with unintentional injury or harm to the health of others
2.3. Crime of infringing upon road traffic safety according to
the provisions of criminal law in some countries in the world
2.3.1. Crimes of infringing upon road traffic safety in
accordance with the Criminal Code of Russian
In the Russian Federation Penal Code, the offenses of infringing
upon road traffic safety are stipulated in Chapter 27 with the name:
Crimes of safety infringement when controlling and operating traffic.
In Chapter 27, there are 8 articles, but only 3 articles have contents
relating to road traffic safety and have similarities to crimes of
infringing on road traffic safety as stipulated in the Vietnamese Penal
Code Vietnam.
2.3.2. Crimes of infringing upon road traffic safety under the
provisions of the Penal Code of the Federal Republic of Germany
In the Federal Penal Code of Germany in 2009, crimes of
infringing upon road traffic safety are stipulated in Chapter 28 with
the name: Crimes of common danger. In Chapter 28, there are 28
articles, but only three of those have contents relating to road traffic

Code and Civil Code in adjudicating road traffic crimes of military
jurisdiction in recent years has improved. This is reflected in the fact
that the Panel has recognized and correctly defined the legal
regulations that is a premise to determine the crimes; to apply
aggravating circumstances, reducing circumstances; to decide
penalties and to apply judicial measures.
The application of the Civil Code regulations to solve civil
matters in criminal cases, particularly in the offenses of road traffic
safety, is also concerned by the MCs. Civil settlement in many cases
is very complicated but trial boards carefully studied the documents,
considered and evaluated objectively, comprehensively and fully the
evidence and documents to have right resolutions on time
According to the statistics in Table 1 (appendix), during the
period from 2008 to 2017, the MCs brought to trial of first-instance
1,941 cases and the total numbers of defendants brought to trial were
3,288. In particular, the total numbers of cases brought to trial for
offenses of road traffic safety were 662 cases/676 defendants
(accounting for 34.1%). In the offenses of infringing upon the of road
traffic safety which has been convicted, the offenses of violating the
regulations on control of road traffic means were 661 cases/675
defendants (accounting for 99.85%); and assignments for those who
are not eligible to control road vehicles were 01 case/1 accused
(accounting for 0.15%). In the years from 2008 to 2013 and 2015 to
2017, the numbers of cases/defendants brought to trial for violations
of regulations on control of road vehicles on the total number of


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cases/defendants were considered totally 100% of road traffic safety
crimes

the dangerous characteristic has increased. The year when has the
lowest number of cases and the number of defendants brought to trial
on the offense of violating the regulations on control of road vehicles,
is in 2017 (32 cases/33 defendants); and the highest is in 2008 (97
case/100defendants).
The process of applying the current criminal law provisions on
the practical trial of those crimes in recent years by the agencies still
has some shortcomings, mistakes on determining criminal charges,
such as:


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First, the determination of the crime is not accurate.
Second, the problem on damage determination to apply
aggravation circumstances;
Third, assessing the level of errors is not accurate, leading to
wrongful criminal prosecution.
Fourth, identifying violations of the Traffic Law in the case of
violating regulations on control of road vehicles is not accurate.
3.2.2. Limitations and mistakes in deciding penalties for
infringing upon road traffic safety
During the period of 2008-2017, see Table 2 (appendix), found
that the results of judging the accused on the road traffic safety
crimes are mainly two measures: 433 probation cases and 136
imprisonment for 03 years or less cases.
The practice of applying the current criminal law provisions on
those crimes in recent years has shown that there are still some
shortcomings, mistakes in deciding penalties, specific:
Firstly: Wrongly assessing the characteristics and seriousness of
the offense, leading to the wrongdoing of the offender

Judges, the sense of responsibility of the Judges
3.3.3. Other reasons
* Examination of judgments, guidance on uniform application of
laws and reviewing trial experience
* Military administrative elements.
Chapter 3 conclusion


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Chapter 4
REQUIREMENTS AND SOLUTIONS TO ENSURE PROPER
APPLICATION OF LAW ON ROAD TRAFFIC SAFETY
CRIMES
4.1. Requirements for proper application of law on road
traffic safety offenses
Firstly, the MCs must fully and seriously grasp the Party's
guidelines expressed in the Politburo Resolution and the Central
Military Party's Resolution on leading the implementation of the
judicial reform strategy in Decision of the Prime Minister and the
legal documents of the State such as the Penal Code, the Criminal
Procedure Code
Secondly, in the application of law to thoroughly grasp
"Appreciate the improvement of criminal policy and judicial
proceedings to promote prevention and goodness in handling
offenders: reduction imprisonment, extending the application of fines
and non-custodial reforms for some types of crimes".
Thirdly, in adjudication of cases of road traffic safety crimes,
judges at all levels must be based on developments, general criminal
situation and crimes of infringing on road traffic safety situation, in
terms of economic and social culture has a new development.

elimination of behavior must also be very careful. As for the people,
in the past, there were some acts that were considered illegal, now
they have been removed or reduced.
4.2.2. Completing the provisions of the Penal Code on crimes
of infringing on road traffic safety
First, about Article 260 of the Penal Code 2015 (amended and
supplemented in 2017) (Article 202 of the Criminal Code 1999)
Proposing the separation of Article 260 of the Penal Code 2015,
(amended and supplemented in 2017) (Article 202 of the Penal Code
1999) into two separated articles: "Crime of violating the regulations
on control of road traffic means" with the subjects as prescribed
stipulated in Article 202 of the Penal Code 1999 and "Crime of
violating regulations on road traffic participation" with subjects who
are particularly pedestrians in the direction of lighter criminal
penalties than the violation of regulations on control of road vehicles
as follows:
Article 260. Crime of violating regulations on control of road
traffic means
Those who control land-road traffic means and violate the
regulations on road traffic safety, thus causing damage to other
people in one of the following cases, shall be sanctioned …
Article 260a. Crime of violating regulations on road traffic
participation


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Passengers and pedestrians participating in road traffic
violations of the regulations on road traffic safety, thus causing
damage to other people in one of the following cases, shall be
sanctioned...

The circumstances: "Causing an accident and then running away
to avoid responsibility or deliberately not helping the victims".
4.2.4. Completing the provisions of the law on compensation
for damages when violating road traffic safety


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Firstly, it is reasonable to confirm the lost income of the
damaged person.
Second: Determining the lost income of the victim or the
caretaker of the victim are also difficult.
Thirdly, it is necessary to stipulate additional criteria to assess
the level of mental loss and to meet that criterion of basic salary
Fourth, when a hospitalized victim needs a caregiver, these
people also have to pay for a meal; the basis for this person to receive
this food allowance.
Fifth, the law should stipulate more cases for families of victims
to spend a reasonable amount of money during the funeral ceremony
for the victims, such as organizing a meal for relatives…
Sixth, after completing treatment, people who suffer damage due
to infringing health have a body injury rate of less than 81% and in
their lives they cannot work to earn income equal to income before
their health is compromised therefore, income is reduced. So, the law
needs to stipulate to ensure the rights and benefits for those victims.
4.2.5. Strengthening facilities for military courts and
completing policies for judges and court officials
To increase investment in material foundations to ensure that
judicial agencies have enough conditions to fulfill their tasks and
adopt appropriate wage and allowance policies and remuneration
policies for judicial officials. To increase investment in material

requirements of judicial reform.
It is also necessary to raise the level of the inspectors, because if
they have a strong political capacity, a good professional
qualification and good moral qualities, they will help the application
of road traffic safety crimes better, help to review and draw
experiences to achieve higher efficiency.
4.2.10. Improving the moral qualities, capabilities and
professional qualifications of military's council
According to the principle stipulated in Article 103 of the 2013
Constitution, the trial of the first instance of the People's Court has
the participation of the People's Council. In Article 84 of the Law on
Organization of the People's Courts, there are people’s council and
military’s council who perform the task of adjudication of cases
under jurisdiction of MCs.
Due to the importance of military’s council, the competent
authorities have to carefully select and introduce those who are
qualified and values the age, rank and functions, knowledge of
organization, experience in life….
4.2.11. Completing the model of Military Court organization in
the direction of vertical management
It is necessary to build the organizational model of the MCs in
the direction: at the highest level is the Central Military Court which
is under the directions of the Supreme Court on professional skills,
and under the Ministry of Defense on Party’s activities and military
administration; Military courts in Military Zone are directed and
managed in all aspects by the Central Military Court, the Regional