Crimes infringe upon the marriage and family law under vietnam’s criminal law in Ho Chi Minh city

research methods to clarify theoretical and legal issues on crimes infringe upon the marriage and family by independent and complementary approach to assess and analyze the provisions of the criminal law on such crimes, and the application of the law in practice. Thenceforth, the study proposes solutions to 5 improve the quality of provisions of the law and effectively apply the law for these crimes. 5.1.3. New points of the dissertation The dissertation is an intensive research work on crimes infringe upon the marriage and family law under Vietnam’s criminal law. On the basis of the provisions of criminal law and through practical research, the study tries to further clarify crimes infringe upon the marriage and family law so as to discover causes, limitations and shortcomings in building the law on such crimes, as well as practical application and propose measures to correctly apply regulations for such crimes. 6. Significance of the dissertation 6.1. Scientific significance 6.2. Practical significance 7. Structure of the dissertation Chapter 1: Literature review Chapter 2: Theoretical issues and history of criminal legislation on crimes infringe upon the marriage and family law Chapter 3: Applying the provisions of the law for crimes infringe upon the marriage and family law in Ho Chi Minh city Chapter 4: Solutions of completing the law and properly applying criminal law for crimes infringe upon the marriage and family law in Ho Chi Minh city Additionally, the dissertation includes introduction, conclusion and references 6 Chapter 1 LITERATURE REVIEW There are many studies on this issue, each work has its own meaning for researching and completing the provisions of the law in general and criminal law on crimes infringe upon the marriage and family regime in particular, and contribute to the fight against crimes. The author refers to the following domestic and foreign research works: 1.1. Domestic research works 1.1.1. Research works on theoretical perception and regulations on crimes infringe upon the marriage and family law in the country 1.1.2. Research works on the application of the law and solutions to improve the provisions of the law for crimes infringe upon the marriage and family law in the country 1.2. Foreign research works In the world, there are also many scientific studies on crimes infringe upon the marriage and family law as follows: 1.2.1. Research works on theoretical issues and regulations related to crimes against the marriage and family law abroad 1.2.2. Research works on the application of the law for crimes infringe upon the marriage and family law abroad 1.3. Assessing research situation and the issues need to be further examined in this dissertation By reviewing scientific works on crimes infringe upon the marriage and family law at home and countries around the world, the author has recognized, absorbed, selected and made the following comments: 1.3.1. The unified issues 1.3.2. The controversial issues By examining, the author found that there are differences in opinions and approaches to specific issues such as research content, 7 research limitations and research depth. Researchers have also different perceptions on same issues that they are interested in studying, so there are different viewpoints on the same issues due to the different research directions. The above studies are controversial on the foundation of regulations on crimes infringe upon the marriage and family law in the Vietnamese Penal Code over periods. Some studies argue that economic reason is considered the foundation of regulations on crimes infringe upon the marriage and family law, other studies determine the foundation of regulations on such crimes mainly arises from tradition, morality, customs or political institutions, etc. Many studies still have different opinions on subjects, objects, subjective and objective aspects. Some studies argue that it is against the law for a person to get married but still has relationships with another person as husband and wife, but someone argue he/she is same sex or opposite sex. Because, in fact, there are many homosexual people in society nowadays, so the systematization of regulations on crimes infringe upon the marriage and family law is incomplete and accurate in Vietnam. There are not research works on crimes infringe upon the marriage and family law under Vietnam’s criminal law in HCMC – a locality with large and diverse population and as the economic – cultural center of the country and also home to a high number of hearing cases in Vietnam, so as to make recommendation for improving the law. Although the above scientific research works have made recommendation to improve the provisions of the law on crimes infringe upon the marriage and family law, many solutions and recommendations are temporary and not systematized or not centralized even contradictory in building legal models for crimes infringe upon the marriage and family law. 1.3.3. The issues need to be further examined in this dissertation 8 On the one hand, the dissertation will refer the advantages of previous works, on the other hand, it tries to clarify pending issues or have been studied but incomplete. On the basis of reviewing literature, unified opinions and controversial opinions, as well as research purpose and tasks, research object and scope, the dissertation tries to address the following matters: By synthesizing theoretical issues of criminal law, the marriage and family relationship, the dissertation will systematize scientific theoretical issues on crimes infringe upon the marriage and family law. It also clarifies the effects of economic, cultural, ethical and social circumstances of each period that how affect people’s perceptions of marriage and family relationship so as to see the development of the social relationship. By examining the provisions of the Vietnamese law in each socio- historical period, the dissertation will build a relatively general picture of the legal mechanism in Vietnam to protecting the marriage and family regime. Thereby, realizing the inherited values of the criminal legislature history in protecting the marriage and family relationship and regime. By examining data on hearing cases of marriage and family at two level People’s Court in HCMC between 2005 and 2019, the dissertation seeks to assess the application of the provisions of the law for crimes infringe upon the marriage and family law. Thenceforth, it seeks to analyze the causes of limitations and obstacles in practice. From analysis as mentioned above, the study will propose some measures to properly apply the provisions of the law for crimes infringe upon the marriage and family law. Summary of chapter 1 The marriage and family relationship play a very important role in social life, it is a foundation for the survival and development of each country, because each person is a family member and also a member of society. In other words, every family is a cell of society, each family member is part of the cell. Thus, countries around the world 9 pay attention to protecting marriage and family regime by imposing various regulations, forms and measures, in which the most effective measure to deal with endangered behaviors for the above relationship to be criminal punishment. In the world, there are many scientists with many studies related to crimes infringe upon the marriage and family relationship and juveniles in many fields of different sciences such as: Jurisprudence, Sociology, Psychology, Criminology, etc., these studies have made great contributions to improving the legal system and they have great significance for combating such crimes in practice. In Vietnam, since the ancient era, the marriage and family relationship are always concerned and protected. In the feudal period, if the perception of regulations and application of the law in dealing with crimes against marriage and family law is oppressiveness for protecting interests of the feudal class and unequal relationship, in current period the perception, regulations and application of the law for crimes infringe upon the marriage and family law are progress, humanity, punishment along with education and persuasion. There are also a lot of research works relating to crimes against the marriage and family law in Vietnam but most of the works have mentioned individual crimes or lack of comprehensiveness and totality as well as not updating systematically theoretical issues on the marriage and family law. In short, research works at home and abroad related to the dissertation topic, whether there are unified issues or controversial issues or they have not been completely resolved, but these are extremely valuable material for the author conducting this dissertation and contribute to the dissertation’s success. 10 Chapter 2 THEORETICAL ISSUES AND HISTORY OF CRIMINAL LEGISLATION ON CRIMES INFRING UPON THE MARRIAGE AND FAMILY LAW 2.1. The concept, legal signs, basis and significance of regulations on crimes infringe upon the marriage and family law 2.1.1. The concept of crimes infringes upon the marriage and family law 2.1.2. Legal signs of crimes infringe upon the marriage and family law under the Vietnamese Penal Code 2.1.2.1. Objects of crimes infringe upon the marriage and family law 2.1.2.2. Objective aspects of crimes infringe upon the marriage and family law 2.1.2.3. Subjects of crimes infringe upon the marriage and family regime 2.1.2.4. The subjective aspects of crimes infringe upon the marriage and family law 2.1.2.5. Comparing crimes infringe upon the marriage and family law with other relevant crimes 2.1.2.6. Penalties for crimes infringe upon the marriage and family law under the 2015 Penal Code 2.1.3. The basis of the provision of crimes infringe upon the marriage and family law under Vietnam's criminal law 2.1.3.1. Theoretical basis 2.1.3.2. Practical basis 2.1.3.3. Political - Legal basis 2.1.3.4. Economic basis 2.1.3.5. Ethical basis 2.1.3.6. Psychological, Cultural, Traditional basis 11 2.1.4. The significance of regulations on crimes infringe upon the marriage and family law under the Vietnamese criminal law 2.2. An overview of Vietnam's criminal legislative history on crimes infringe upon the marriage and family law before enacting the 2015 Penal Code 2.2.1. Before the August Revolution 1945 Feudal society period French colonial period 2.2.2. From 1945 to the 1985 Penal Code took effect 2.2.3. From the 1985 Penal Code took effect to the 1999 Penal Code took effect 2.3. Crimes infringe upon the marriage and family law under the criminal law of some countries around the world 2.3.1. Crimes infringe upon the marriage and family law under the criminal law of the Russian Federation 2.3.2. Crimes infringe upon the marriage and family law under the criminal law of the People's Republic of China 2.3.3. Crimes infringe upon the marriage and family law under the criminal law of the Federal Republic of Germany 2.3.4. Similarities, differences and experiences of building criminal law abroad for completing the law on crimes infringe upon the marriage and family regime under Vietnam’s criminal law 2.3.4.1. Similarities with Vietnam’s Penal Code 2.3.4.2. Differences with Vietnam’s Penal Code 2.3.4.3. Experiences of building criminal law abroad for completing the law on crimes infringe upon the marriage and family regime under Vietnam’s criminal law Summary of chapter 2 The marriage and family issue is a philosophical category arising from nature and society, and social development through the practice 12 of labor, creativity and thought as well as human capacity is increasingly perfected. This natural feature has existed in the history of human development as the driving force of social development. When the society is divided into classes, through the state, the ruling class has used policies and laws to regulate and intervene in the process of developing marriage and family relationship in a progressive direction and consistent with natural rule to ensure the benefits of the ruling class by coercive measures, since then the marriage and family law has been made. The marriage and family law play a role of reproducing human physical and spiritual life, as the foundational of each country and the cell of society in order for citizens to be growing and developing, and as one of the important factors determining the quality of citizenship while simultaneously ensuring sustainable development of the society. On the basis of the legal signs of crimes infringing upon the marriage and family regime, according to the Penal Code, such crimes are defined as dangerous behaviors for society. Persons without criminal liability intentionally violate the provisions of the law on marriage, divorce, rights and obligations between husband and wife, parents and children, among other family members, supporters, adopted children, guardian, as well as the marriage and family relationship with foreign elements and other issues related to the marriage and family. The history of establishment and development of regulations on crimes infringing upon the marriage and family law in Vietnam over periods has shown by the reality of social life. Criminal law policies on such crimes have been planned promulgating provisions in the Penal Code to protect the social relationships from harm. Each country around the world is different from geographical conditions, location, population, economy, customs, traditions, so regulations on crimes infringing upon the marriage and family law 13 are also different. Based on the political, socio-economic, ethical, emotional, cultural, and traditional basis of the country to issue the regulations, so the Penal Code of each country always has similarities and differences, bringing some legislative experiences to regulate and protect the marriage and family law in Vietnam. The content of this chapter has mentioned the theoretical issues on crimes infringing upon the marriage and family law so as to create a premise for the analysis of the general legal signs and classifying these crimes under the provisions of the Penal Code. The study has also assessed theoretically and practically the application of the provisions of the law for crimes infringe upon the marriage and family law. 14 Chapter 3 APPLYING THE PROVISIONS OF THE LAW FOR CRIMES INFRINGE UPON THE MARRIAGE AND FAMILY LAW IN HO CHI MINH CITY From the basic adjustment of the criminal policy in current period, the 2015 Penal Code stipulates 7 types of crimes in the chapter on crimes infringe upon the marriage and family law. With appropriate criminal policies, the enactment of the 2015 Penal Code has made the law come to life early and as an effective tool of the State in protecting national security, crime prevention and protecting social safety, human rights, citizen rights, as well as promote the market economy and international integration. 3.1. Similarities and differences between the provisions of the 2015 Penal Code and the 1999 Penal Code 3.1.1. General overview 3.1.2. Inheritance of the 2015 Penal Code from the 1999 Penal Code Object of crimes including the objective and subjective aspects of crimes, and subject of crimes. 3.1.3. Differences of the provisions between the 2015 Penal Code and the 1999 Penal Code 3.1.4. Situation of hearing crimes infringe upon the marriage and family law in Ho Chi Minh City According to statistics over 15 years from 2005 to 2019, cases were heart at two levels People’s Court in HCMC about crimes infringe upon the marriage and family law as follows: There are 34 cases with 44 defendants were heart at the first instance district People’s Court; 4 cases with 4 defendants were heart at the first instance People’s Court of HCMC; and appellate trial of 11 cases with 11 defendants at the People’s Court of HCMC. 15 From statistics mentioned above, it is found that the number of cases on crimes infringe upon the marriage and family in HCMC is not high and not equal every year. 3.1.4.1. For “crimes of forcing marriage or preventing a voluntary and progressive marriage under Article 146 of the 1999 Penal Code” and “crimes of forcing marriage or preventing a voluntary and progressive marriage, preventing voluntary divorce under Article 181 of the 2015 Penal Code” 3.1.4.2. For “crimes of violating the monogamy” under Article 147 of the 1999 Penal Code and Article 182 of the 2015 Penal Code 3.1.4.3. For “crimes of organizing underage marriage and underage marriage” under Article 148 of the 1999 Penal Code and Article 183 of the 2015 Penal Code 3.1.4.4. For “illegal marriage registration” under Article 149 of the 1999 Penal Code and transfer into “crimes of illegal civil status registration” under Article 336, chapter XXII on “crimes of violating administrative management” of the 2015 Penal Code 3.1.4.5. For “incest” under Article 150 of the 1999 Penal Code and Article 184 of the 2015 Penal Code 3.1.4.6. For “crimes of mistreating or torturing grandparents, parents, spouses, children or grandchildren” under Article 151 of the 1999 Penal Code and “crime of mistreating or torturing grandparents, parents, spouses, children, grandchildren or other persons under Article 185 of the 2015 Penal Code 3.1.4.7. For “crimes of refusing or avoiding the support obligation” under Article 152 of the 1999 Penal Code and Article 186 of the 2015 Penal Code 3.1.4.8. For “crimes of organizing surrogacy for commercial purposes” under Article 187 of the 2015 Penal Code 3.2. Condemning crimes of infringing upon the marriage and family law in HCMC 3.2.1. The reality of condemning crimes of forcing marriage or preventing a voluntary and progressive marriage under Article 146 16 of the 1999 Penal Code” and “crimes of forcing marriage or preventing a voluntary and progressive marriage, preventing voluntary divorce under Article 181 of the 2015 Penal Code” 3.2.2. Condemning “crimes of violating the monogamy” under Article 147 of the 1999 Penal Code and Article 182 of the 2015 Penal Code 3.2.3. Condemning “crimes of organizing underage marriage and underage marriage” under Article 148 of the 1999 Penal Code and Article 183 of the 2015 Penal Code 3.2.4. Condemning “illegal marriage registration” under Article 149 of the 1999 Penal Code and transfer into “crimes of illegal civil status registration” under Article 336, chapter XXII on “crimes of violating administrative management” of the 2015 Penal Code 3.2.5. Condemning “incest” under Article 150 of the 1999 Penal Code and Article 184 of the 2015 Penal Code 3.2.6. Condemning “crimes of mistreating or torturing grandparents, parents, spouses, children or grandchildren” under Article 151 of the 1999 Penal Code and “crime of mistreating or torturing grandparents, parents, spouses, children, grandchildren or other persons under Article 185 of the 2015 Penal Code 3.2.7. Condemning “crimes of refusing or avoiding the support obligation” under Article 152 of the 1999 Penal Code and Article 186 of the 2015 Penal Code 3.2.8. Condemning “crimes of organizing surrogacy for commercial purposes” under Article 187 of the 2015 Penal Code This is a new crime added to the 2015 Penal Code, so far there has not been investigation, prosecution and hearing any case in HCMC. 3.3. Practical application of punishment for crimes infringe upon the marriage and family law in Ho Chi Minh City Punishment is the most severe coercive measure of the State specified in the Penal Code. The punishment not only punishes the offenders but also educates them to comply with the law and rules of life, preventing them from violating new crimes, legal education, 17 prevention and fight against crimes. The punishment decision is one of the measures to bring the Penal Code into social life. In addition, it contributes to the implementation of the criminal policies of the Party and the State, the punishment decision is one of the basic stages of the process of applying punishment. The state’s criminal policy towards these crimes is mainly aimed at educating and convincing, and it also has a relatively clear division of criminal responsibility for each specific behavior. Among 7 crimes that infringing upon the marriage and family law, there are 4 crimes to be less serious. The maximum penalty is 3 years in prison. The remaining 3 crimes including incest, mistreatment or torturing grandparents, parents, spouses, children, grandchildren, and crimes of organizing surrogacy for commercial purposes to be the highest punishment with 5 years in prison. Therefore, the application for those who committed such crimes is mostly measures that do not deprive or deprive but not more than 5 years of imprisonment. 3.4. Obstacles and errors of applying the criminal law for crimes infringe upon the marriage and family law in HCMC The number of criminal cases to be tried criminally for crimes against the marriage and family law that doing violence to someone is very small, it is inconsistent with the reality and sociological statistics of family violence. Some crimes were not tried for a long time such as organizing underage marriage and underage marriage under Article 148 of the 1999 Penal Code, although this act may be happening every day in many localities, especially in ethnic minority areas, rural areas and villages. 3.5. Causes of obstacles and errors in hearing crimes infringe upon the marriage and family law 3.5.1. Objective reasons 3.5.2. Subjective reasons 18 Summary of chapter 3 In fact, from cases mentioned above, we can see that in the prosecution, there are still many shortcomings to the awareness of legal regulations and dangerous acts for society, as well as awareness of condemning crimes, this affects the results of prosecution and issuance of indictment. For the People’s Court hearing: the trial of a criminal case is the most independent and important procedural stage of criminal proceedings, in which the competent Court bases on provisions of the criminal procedure law so as to 1) apply measures to prepare for trial; 2) hearing criminal case under first instance proceedings to examine the substance of the case, at the same time, on the basis of public and democratic litigation results of the two sides (accusations and defenses) to determine nature of crimes, whether defendant is guilty or not (or hearing the case under appellate procedures), if the first- instance judgement or decision has been declared and has not yet taken legal effect but it is appealed, protested or checked the legality of judgment or decision took effect under the cassation or reopening procedure; or if the judgment or decision is appealed and finally pronounce the Court’s judgment (decision) took effect to resolve fairly, properly and convincingly the issue of criminal liability The timing of this period begins the Court receives the criminal case file transferred by the Procuracy and ends with a legally effective judgment or decision of the Court. However, in fact, the above judgments show that in the hearing, there are still many shortcomings in awareness of the legal regulations, serious acts for society, and condemning crimes and punishments. This affects the outcomes of hearing and issuance of judgment and decision under the law. 19 Chapter 4 SOLUTIONS OF COMPLETING THE LAW AND PROPERLY APPLYING CRIMINAL LAW FOR CRIMES INFRINGE UPON THE MARRIAGE AND FAMILY LAW IN HO CHI MINH CITY 4.1. Requirements of completing the law and properly applying criminal law for crimes infringe upon the marriage and family law 4.1.1. Socio-economic development 4.1.2. Criminal policy for crimes infringing upon the marriage and family law 4.1.3. Institutionalization of the provisions of the 2013 Constitution 4.1.4. Implementing international commitments 4.2. Solutions of completing the criminal law for crimes infringing upon the marriage and family law 4.2.1. Completing criminal law policies to acts violating the marriage and family law 4.2.2. Completing the Penal Code on crimes infringe upon the marriage and family law 4.2.3. Completing the promulgation of t