MINISTRY OF EDUCATION AND TRAINING

MINISTRY OF JUSTICE

HANOI LAW UNIVERSITY

HA LE THUY

JUDICIAL MEASURES IN VIETNAMESE CRIMINAL LAW THEORETICAL AND PRACTICAL ISSUES

Major: Criminal law and criminal procedure
Code : 9380104

SUMMARY OF DOCTORAL THESIS IN LAW

HA NOI – 2020


THE THESIS WAS COMPLETED AT:
HANOI LAW UNIVERSITY

Scientific Supervisor: Dr. Pham Manh Hung
Dr. Hoang Van Hung

Reviewer 1: Dr. Nguyen Tri Tue
Reviewer 2: Assoc. Prof. Dr. Nguyen Ngoc Chi
Reviewer 3: Dr. Nguyen Van Hien

The thesis will be defended at the marking commite of Hanoi Law
University at the time…hour…month…year 2020


Since the introduction of the first Criminal Code, legal institutions have
been regulated and gradually ameliorated through amendments, supplements
and replacements. However, it can be seen that, at present, the judiciary legal
institution still has problems that exist theoretically and practically, requiring
in-depth research and comprehensive to resolve these issues.
From the theoretical perspective, there are still different views when
referring to the concept, characteristics, nature or role of judicial measures in
criminal law. Differences in criminal policies of each state, differences in
economical, political, cultural and social characteristics of each state also lead
to the recognition and regulation of judicial measures in criminal law of
different states. So far, we have not built a sufficient theoretical basis for
judicial remedies, have not developed a legal concept of judicial measures,
neither clarified the characteristics, roles and purposes of these measures.
From the perspective of criminal law, the provision of judicial measures
in addition to the penalty system contributes to the diversification of criminal
handling measures, supporting legal application agencies to have a choice
diverse and flexible in thoroughly handling criminals but still ensuring the
effectiveness of handling. However, there are still plenty of legal aspects that
need to be analyzed and clarified how to bring them closer to the applied
practices, thereby promoting the indispensable role of judicial measures.
From a practical perspective, judicial measures are applied and contribute
significantly to the fight against crime prevention. In addition to the achieved
results, some judicial measures, when applied in practice, have not brought into
full play the effective role that lawmakers are eager to reach, even some are not
yet applied in practical handling crimes.
Therefore, with the requirements set forth above, the continuous
systematic research of the provisions of the judicial measure on judicial
measures, the expression of these measures in the existing criminal code The
application of these measures in practice has profound theoretical and practical
implications. That is also the reasons for us to choose the topic "JUDICIAL

theory with practice, analysis method, evaluation methods, general methods,
comparative methods, statistical methods to clarify the problem.
5. Scientific and practical significance of the thesis
In terms of scientific significance, this is the first research in a
comprehensive and complete judicial measures study under the doctoral thesis
level. The work has theoretical value, contributes to the completion of the
criminal law science theory, and creates systematic theoretical issues about the
legal frameworks, resolving current controversial issues or has different views
on the content of the provisions of judicial measures.
In terms of practical significance, the analysis and assessment of the
current situation, the causes and limitations in the application of judicial
measures have practical meaning in legislative activities and the law application
activities of judicial agencies, judgment enforcement agencies. At the same
time, the introduction of recommendations and legislative measures to improve
the effectiveness of the application of these measures have practical
implications for the rehabilitation and education of criminal subjects and for
fighting activities prevent and fight against criminals.
6. Structure of the thesis
In addition to the introduction, an overview of the research topic, the
conclusion and the list of references, the content includes:
Chapter 1. General issues and criminal laws of some countries on judicial
measures
Chapter 2. Judicial measures in accordance with current Vietnamese criminal
law and practical application
Chapter 3. Completing laws and solutions to improve the effectiveness of the
application of judicial measures


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In summary, the researches and assessments of the above works are also a
valuable reference source for the writer of this thesis. However, the
aforementioned articles have not analyzed in detail judicial measures, have not
studied foreign legislative experience with provisions on judicial measures
applied for legal entities to gain experience in the process of applying new
measures prescribed in Vietnam's criminal law.
2. Overseas research to the thesis
2.1. The work of research on judicial measures in general
At the level of monograph, there are works “Penalty Science” by Bernard
Bouloc; “General Criminal Law” by Jacques Leroy; “Criminal law
curriculum, common part” by Helmut Fuchs ... At the thesis level, there is a


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doctoral thesis “Security measures: a comparative study of criminal law of
France and Germany” by Jenny Herrmann has researched on judicial mesures
known as security measures; at the reporting level, there are the following
articles: “Safety measures in the new criminal code” by Constantin Sima;
“Punishment and other criminal measures” by Maizer Chankseliani; “Remedy
and safety measures in Swiss criminal law” by Nicolas Queloz. Articles stated
and analyzed criminal remedies other than penalties prescribed by the laws of
the countries.
2.2. The research works on each specific judicial measure
At the thesis level there is a doctoral thesis “Approach to compare
criminal liability of juveniles in French and Vietnamese criminal law” by Tran
Van Dung, which mentions and compares educational measures for with
juvenile offenders between the laws of France and Vietnam. At the level of the
article, there is an article: “Execution of juvenile offenders in Germany:
between a system of protection and justice” by Frieder Dunkel; “Criminal

Hypothesis 2: In the current context, the system of judicial mesures does
not fully meet the needs of the application, does not ensure the role and
effectiveness of the defense measures in the system of criminal enforcement
measures.
Hypothesis 3: The judicial mesures applied to criminal subjects are
necessary and need to be more clearly and fully regulated in the criminal law.
Hypothesis 4: The current situation of Vietnam's criminal law and the
situation of applying judicial mesures for offenders and commercial legal
entities still has problems that require improvement to apply correct and to
ameliorate the effectiveness of their application in practice.
3.4. Research question
The content of the thesis will focus on research to answer the following
questions:
Firstly, what are the concepts, characteristics, roles of judicial mesures?
Basis of stipulating judicial mesures in criminal law? What is the relationship
between judicial mesures and punishment?
Secondly, how are judicial mesures regulated in the criminal law of some
countries in the world? What are the similarities and differences from Vietnam's
criminal law?
Thirdly, how is the content of the legal framework regulated in the current
criminal law?
Fourthly, how do you apply the practice of judicial mesures? What are
the limitations, difficulties, obstacles and their causes?
Fifthly, to overcome the causes of the limitations and difficulties in
applying the judicial measures and improve the effectiveness of applying these
measures in the future, what solutions are needed?
3.5. Approach of the thesis: access to rights, inter-disciplinary approach,
historical approach and comparative approach.
Conclusion chapter overview
An overview of the research works of senior scholars at home and abroad

measures” (Greece, Spain, Italy, Columbia, Mexico, etc.), “measures for
improvement and security” (Germany); “Sanctions for criminals” (Poland);
The Russian Criminal Code called “other criminal legal measures”.
Meanwhile, it is called “Judicial Measures” in legal books and newspapers in
our country today.
The fundamental difference of judicial measures between foreign and
Vietnamese concepts is that foreign scientists emphasize the precaution of these
measures, mainly focusing on those who commit dangerous acts to society apart
from criminals and these measures are considered as security measures rather
than penalties. As the result, in the Criminal Law of some countries, measures
play the role as security measures and penalties. Meanwhile, Vietnamese
scientists’concepts mostly focus on the impact on the rights and interests of
people who perform dangerous acts for society are applied these measures. In
other words, this means that judicial measures are also supportive for penalties
for the purpose of punishing entities that commit dangerous acts to society. The
application of judicial measures is still able to ensure the reformation and
education of offenders and prevention from crimes.
On the basis of analyzing scientific concepts, the dissertation figures out
judicial measures as follows: Judicial measures are State’s coercive measures
prescribed in criminal law, imposed by competent authorities in the stages of
the proceeding process, in order to overcome the damages of criminals, protect
the legitimate rights and interests of individuals, agencies and organizations,
contributing to educating offenders and preventing from crimes as well as
violating law.


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1.1.1.2. Characteristics of judicial measures
Firstly, judicial measures are State’s coercive measures prescribed in

- Based on entities applied judicial measures, it can be classified into
groups: the group of judicial measures for individuals, the group of judicial
measures for corporate legal entities, the group of judicial measures for both
individuals and corporate legal entities.
- Based on the nature of the behavior, it can be classified into groups: the
group of judicial measures for dangerous behaviors for society without accusing
crimes, the group of judicial measures for dangerous behaviors for society with
accusing crimes.
- Based on the applied entities, it can be divided into groups: the group of
judicial measures for proceedings-conducting agencies applied during the
proceedings, the group of judicial measures applied by the Court.


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- Based on the role of judicial measures, it can be classified into groups:
the group of judicial measures supporting penalties, the group of judicial
measures being independent of penalties.
1.1.4. The distinction of judicial measures from penalties
1.1.4.1. The similarities between judicial measures and penalties
Penalties and judicial measures are prescribed in the criminal code; and
both are the State’s criminal coercive measures applied to entities that represent
danger to the society would be considered criminals; the application of penalties
or judicial measures must comply with the principles of legislation, the
principles of fairness, respect for human dignity and honor; aiming at
preventing entities from committing dangerous acts to society; depending on
the circumstance and time for lawmakers to stipulate which measures are
penalties and judicial measures.
1.1.4.2. The difference between judicial measures and penalties
The dissertation has pointed out different criteria to distinguish between

before 1999
Obviously, Vietnam's criminal law remarkably changed through the first
promulgation of a complete Criminal Code. With the provisions of this Code,
judicial measures were more complete basing on the inheritance of the
provisions on judicial measures mentioned in legal documents. Lawmakers
determined that judicial measures had an indispensable position and role in the
Criminal Code, and emphasized the importance and significance of the
application of judicial measures to deal with crimes, contributing to prevent
from crimes effectively.
1.2.4. The period of the promulgation of the Criminal Codes between 1999
and before 2015
The 1999 Criminal Code (later amended in 1999 and supplemented in
2009) was resulted from the second codification process of criminal law on the
basis of inheriting the system of principles and regulations of the 1985 Criminal
Code, simultaneously the provisions of the Criminal Code became appropriate
thanks to the amendment, supplementation, improvement and development, of
which the provisions on judicial measures were more complete and more
clearly expressed their nature and role.
1.3. The overview of criminal laws of some countries on judicial measures
1.3.1. Provisions on judicial measures in Sweden’s criminal law
Sweden’s Criminal law defines judicial measures in chapter 36 under the
name Other Special Legal Effects of Crime including: confiscation of
property, fine of enterprises, compensation for damages and other legal
measures as prescribed by law. Although there is no definition of other special
measures, Sweden’s Criminal Code affirmed that these special legal measures
could be applied simultaneously with penalties.
1.3.2. Provisions on judicial measures in France’s criminal law
France’s Criminal law points out a system of criminal coercive measures
apart from penalties, known as security measures. Among the security measures
that apply to offenders, there are some measures construed as either primary or

Code. However, in each specific measure, law makers clearly apply the method,
target and duration.
1.3.5. Provisions on judicial measures in China’s criminal law
China’s Criminal Code incompletely defines judicial measures including:
compensation for losses, mandatory attendance at an educational institution,
compulsory medical treatment, warning, written self-criticism. These measures
which appear in China’s Code also figures out that Chinese lawmakers have
noted the existence of other criminal coercive measures in addition to penalties.
On the basis of researching judicial measures in the criminal law of other
countries, the dissertation has pointed out the similarities and differences
between Vietnam's criminal law and the criminal law of the countries
mentioned above. Thereby, the dissertation also recommends selected and
studied points for the completion of judicial measures in the criminal law.
Conclusion of chapter 1
In summary, the definitions of judicial measures are constructed from
scientific bases, from experiences on judicial measures prescribed by foreign
countries, from the analysis and evaluation on forming and developing judicial
measure institutions for years, accepted and reasonable points would be taken
into consideration of current criminal law on judicial measures. The correctness
and reasonability of scientific theories will once again be confirmed and
clarified in relation to the current Vietnam’s criminal law. In addition, the
research results of this chapter will become the theoretical foundation for
understanding and assessing practical problems of judicial measures. Finally,
the points mentioned in this chapter would be recommendations for the
completion of Vietnam's criminal law in the final chapter of the dissertation.


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Chapter 2. JUDICIAL MEASURES UNDER THE PROVISIONS

serving a penalty, loses his/her awareness or control of his/her acts, must go to
specialized treatment facilities for the purpose of eliminating conditions that
may lead to new offenses in the future due to their illness. In terms of
applicable conditions, mandatory disease treatment is only applied to people
who commit dangerous behaviors for the society that suffer from mental illness
leading to the loss of cognitive ability or the ability to control behaviors. For the
purpose, this measure is intended to prevent the possibility of harming social
order and safety of people with mental illness or other illnesses that cause
mental disorders as well as eliminate the possibility of leading to dangerous
behavior for society.


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2.1.4. Provisions on education in correctional institutions to juvenile ofenders
For the condition, the education in correctional institutions is the measure
applied to juvenile offenders due to the seriousness of the offenses, his / her
identity and the living environment. It cannot guarantee education and
amelioration but it must place the person in a strictly disciplined institution
instead of imposing penalties on them. Concerning the content, education in
correctional institutions limits the freedom of to juvenile offenders and train in
a strictly disciplined environment, fully comply with the rules, regulations,
studies and practice under the strict supervision of correctional institutions for a
certain period of time from 01 year to 02 years. For the purpose, these measures
are applied to ensure the deterrence and prevention.
2.1.5. Provisions on judicial measures taken against a corporate legal entity
committing a crime include
2.1.5.1. Restoration of original state
Restoration of original state is considered to be a very effective support
for the punishment. If penalties are only considered as an effective legal tool to

property must be returned to that entity. In addition, competent authorities may
impound property as custody to ensure the execution of sentences.
Table 1.2: Situation of applying judicial measures to confiscate objects and
money directly related to crimes
Article
Number Applying judicial measures Ratio %
of cases
to confiscate objects and
money directly related to
crimes
Article 93
116
105
83%
Article 112
30
30
100%
Article 133
40
40
100%
Article 135
8
8
100%
Article 136
7
7
100%

0
0%
500
458
91,6%
Total
2.2.1.2. The situation of applying judicial measures to return properties, repair,
compensate damages, and force public apology
In order to evaluate how often this measure is applied in practice, the
author relied on statistics of high-probability criminal groups by selecting 500
sentences at random in provinces and cities across the country within 10 years,
although this is only a relative number. However, they also reflect quite fairly
and honestly the situation of applying this judicial measure, because these are
the criminal groups with the highest rate of court proceedings.
Table 2.2: Number of cases on crimes applying judicial measures to return
properties, repair, compensate damages, and force public apology
Article
Number of Applying judicial measures to
cases
return properties, repair,
Ratio %
compensate damages, and
force public apology
Article 93
116
110
94,8%
Article 112
30
10

7
500

8
7
55
92
28
14
29
4
8
6
409

100%
100%
91,6%
96,8%
80%
25,9%
87,8%
57,1%
100%
85,7%
81,8%

2.2.1.3. Situation of application of compulsory judicial measures for medical
treatment
Through the statistics of cases where offenders are subjected to

prisoners applying of (3)+ (4)/
applying of
of mandatory
(2)
mandatory
disease treatment
disease treatment
(4)
(3)
101,285
0
0
0
96,803
40
0
0,04%
89,072
79
0
0,08%
105,408
50
0
0,04%
117,110
62
0
0,05%
117,402

levels during 10 years, it has been shown that the number of defendants applied
each year is very small, even though there is any increase significantly. It can
be recognized that, while the judicial mesures are important in educating and
reforming juvenile offenders, giving them the opportunity to ameliorate their
personalities to soon reintegrate into the community, but in fact, very few are
applied.
Table 4.2: Situation of juvenile offenders applied judicial measures
from 2008 to 2017
Year The total
Total
The number of
The number of
number number of defendants who
defendants who
of cases defendants
applied
applied the measure
with
of juvenile
measure
of education in
juvenile
offenders
sending to
communes, wards
offenders
correctional
and towns
institutions
2008

3402
4476
2
3
2015
2757
3609
7
8
2016
2424
3169
6
4
2017
1877
2373
9
6
Total
29383
39332
52
75
(Source: Statistics of the Supreme People's Court)
In summary, from the practical situation of the application of the judicial
measures of the procedure-conducting agencies in the past 10 years in whole
nation, it can be seen that, the judicial system has contributed to thoroughly
handling crimes and promoting the effect of disposal of crimes together.
However, the practice of applying judicial measures also shows that there are

by criminal acts.
Secondly, restrictions in the application process. Agencies conducting
legal proceedings are still not in order in the application of the provisions of
Clause 2, Article 41 to Clause 1, Article 42 of the 1999 Penal Code to return
properties to their lawful owners or managers that the offender appropriated.
2.2.2.3. For mandatory judicial remedies cure
Firstly, problems about the provisions of law. For those who commit an
act dangerous to society while suffering from a disease specified, their offenses
have not been criminally prosecuted. After committing crimes, how is
compulsory medical treatment applied?
Secondly, restrictions in the application process. The agencies are
embarrassed in applying the law to deal with cases of illness after committing
crimes and later cured. Or for those suffering from other illnesses that lead to
the loss of awareness or the ability to control who behavior under Clause 1,
Article 13 of the Criminal Code 2015 and they are also considered to be
incapable of criminal liability. In case at the time of committing crimes,
whether compulsory measures of healing are applied or not.


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Thirdly, restrictions and difficulties in the implementation of mandatory
judicial remedies cure.
2.2.2.4. Judicial measures against juvenile offenders
Firstly, problems about the provisions of law. Provisions on judicial
measures are not specific and do not distinguish between administrative
handling measures and judicial measures, conditions for applying measures are
not clear, and there are no binding obligations against juvenile offenders to
whom judicial measures replacing penalties are applied.
Secondly, restrictions and difficulties in the implementation process. The



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2.2.3.5. The cause of the coordination carried out between the competent
authorities
The coordination of competent agencies in the enforcement of judicial
mesures is not yet tight, leading to ineffectiveness.
2.2.3.6. Other causes
Due to the restricted awareness of the aggrieved party, so they do not
have legitimate requirements for the entities conducting legal proceedings,
especially with respect to the court during the trial process to implement the
proper application of judicial mesures. The economic factor is also a significant
factor affecting the judicial activities, the proceeding process or the judgment
execution activities and the impacts on the subjects that carry out this activity
both objectively and subjectively.
Conclusion of chapter 2
In terms of research of the current situation of Vietnam's criminal law on
judicial measures, it can be seen that there are still problems in the criminal
legislative situation and criminal handling practices due to the objective and
subjective causes. Therefore, analyzing and evaluating the provisions of the
current law, analyzing and evaluating practical practices is necessary, thereby
providing effective solutions to support the effective application of judicial
measures in practice. The above-mentioned issues will be the premise for the
author to continue perfecting the remaining content of the thesis, as well as
achieving the final purpose of the study of judicial measures, which is to
discover devise solutions to ameliorate their effectiveness and apply them in
practice.



the name of judicial measuresapplied to corporate legal entities committing
crimes in Article 46 to ensure the consistency with Article 82 of the Criminal
Code.
Third, it is necessary to supplement new judicial measures to ensure
effective prosecution of crimes and prevent dangerous acts for society.
3.2.1.2. Regarding some specific judicial measures
Firstly, for the confiscation of objects and money directly related to
crimes, it is necessary to prescribe the collection process to ensure the strict
confiscation, especially in case money and objects no longer exist or cannot be
finallydetermined where they are.
Secondly, with regard to property return, it is necessary to clarify the
difference of the regulations of Section 2, Article 47 and Section 1, Article 48
on return of property.


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Thirdly, with respect to the compensation for losses, it is necessary to
represent the nature of judicial measures in the Criminal Code
Fourthly, it is advised to eliminate the provision of offering of public
apology in the current Criminal Code, whichshould be considered as a civil
measure and apply the provisions of the Civil Code for the adjustment and
implementation.
Fifthly, it is better for the Procuracyto apply compulsory medical
treatment before the prosecution of a criminal case rather than it iscurrently
prescribedin Article 447 of the 2015 Criminal Procedure Code.
Sixthly, it is necessary to keep researching the expansion of entities
applying compulsory medical treatment, accordingly helping to timely prevent
dangerous acts from being considered crimes for society in reality.
Seventh, it is necessary to stipulate more clearly the provisions to be able