PENAL CODE
(No. 15/1999/QH10)
FOREWORD
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.
GENERAL PART
Chapter I
FUNDAMENTAL PROVISIONS
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 therefor.
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.
Chapter II
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.
Chapter III
CRIMES
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 therefor; 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 therefor.
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
therefor.
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.
Chapter IV
STATUTE OF LIMITATION FOR PENAL LIABILITY EXAMINATION,
PENAL LIABILITY EXEMPTION
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.
Chapter V
PENALTIES
Article 26.-
Definition of penalty
Penalty is the most severe coercise 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:
a) Warning;
b) Fine;
c) Non-custodial reform;
d) Expulsion;
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;
c) Probation;
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.
Chapter VI
JUDICIAL MEASURES
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.
Chapter VII
DECIDING PENALTIES
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.
Chapter VIII
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 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.
Chapter IX
REMISSION OF CRIMINAL RECORDS
Article 63.-
Remission of criminal records
Convicted persons shall have their criminal records wiped out
according to the provisions in Articles 64 to 67 of this Code.
Persons entitled to criminal record remission shall be considered as
having not been convicted and granted certificates by the court.
Article 64.-
Automatic remission of criminal records:
The following persons shall automatically have their criminal records
wiped out:
1. Persons who are exempt from penalties.
2. Persons charged with crimes other than those defined in Chapter XI
and Chapter XXIV of this Code, if after completely serving their
sentences or after the expiry of the statute of limitation for
execution of the sentences, such persons do not commit new crimes
within the following time limits:
a) One year in the case of being penalized with warning, fine,
non-custodial reform or suspended sentence;
b) Three years in the case of imprisonment of up to three years;
c) Five years in the case of imprisonment of between over three years
and fifteen years;
d) Seven years in the case of imprisonment of over fifteen years.
Article 65.-
Criminal record remission by the court's decision
1. The courts decide the criminal record remission for persons charged
with crimes defined in Chapter XI and Chapter XXIV of this Code,
depending on the nature of the committed offenses, their personal
identification, their attitude towards law observance and labor
behavior of the convicted persons in the following cases:
a) They have been sentenced to imprisonment for up to three years
without committing new crimes within three years of completing their
sentences or after the expiry of the statute of limitation for the
execution of the sentences;
b) They have been sentenced to imprisonment for between over three
years and fifteen years without committing new crimes within seven
years of completing their sentences or after the expiry of the statute
of limitation for the execution of the sentences;
c) They have been sentenced to imprisonment for over fifteen years
without committing new crimes within ten years of completing their
sentences or the expiry of the statute of limitation for execution of
the sentences.
2. A person whose application for criminal record remission is
rejected by the court for the first time must wait one more year
before making another application therefor; if the application is
rejected for the second time, he/she must wait for two years before
applying for the criminal record remission.
Article 66.-
Criminal record remission in special cases
Where a convicted person shows signs of marked progress and has made
good achievements and is recommended for criminal record remission by
the agency or organization where he/she works or the administration of
the locality where he/she permanently resides, he/she may have his/her
criminal record wiped out by the court if such person has served at
least one-third of their prescribed term.
Article 67.-
Method of calculating time limit for criminal record remission
1. The time limit for criminal record remission stipulated in Article
64 and Article 65 of this Code shall be based on the principal penalty
already declared.
2. If a person whose criminal record has not yet been expunged commits
a new crime, the time limit for remitting the previous criminal record
shall be calculated from the date of completely serving the new
judgement.
3. The complete serving of a judgement shall cover the complete
serving of the principal penalty, the additional penalty and any other
decisions of the judgement.
4. A person who is exempt from serving the rest of his/her penalty
shall also be considered as having completely served the penalty.
Chapter X
PROVISIONS APPLICABLE TO JUVENILE OFFENDERS
Article 68.-
Application of the Penal Code to juvenile offenders
Juvenile offenders are offenders who are aged between full 14 years
and under 18 years. They shall bear penal liability under the
provisions of this Chapter as well as the provisions of the General
Part of this Code which are not contrary to the provisions of this
Chapter.
Article 69.-
Principles for handling juvenile offenders
1. The handling of juvenile offenders aims mainly to educate and help
them redress their wrongs, develop healthily and become citizens
useful to society.
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