Các tội xâm phạm an toàn giao thông đường bộ theo pháp luật hình sự từ thực tiễn xét xử của các tòa án quân sự ở việt nam tt tiếng anh

VIETNAM ACADEMY OF SOCIAL SCIENCES
GRADUATE ACADEMY OF SOCIAL SCIENCES

HOANG DAT NAM

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

Major
Code

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

SUMMARY OF DOCTORAL THESIS IN LAW

HANOI, 2019


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

Supervisor: Assoc Prof. Dr. Cao Thi Oanh

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

Reviewer 3: Dr. Nguyen Van Diep

The doctoral thesis will be examined by Examination Board of
Graduate Academy of Social Sciences at ………………………….

The doctoral thesis can be found at:
- National Library of Vietnam;
- Library of Graduate Academy of Social Sciences


LIST OF AUTHOR’S PUBLISHED WORKS

1. Hoang Dat Nam (2018), "Crimes of infringing on road traffic
safety in some countries and experiences for Vietnam", Journal of
Social Sciences Human Resources (1), pg. 20-26.
2. Hoang Dat Nam (2018), "Crimes of infringing on road traffic
safety in the Penal Code 2015 and the amendment and supplement
Penal Code in 2017 and some petitions", Scientific Journal of Hanoi
Open University (2), pg. 34-43.


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INTRODUCTION
1. Rationale
In Vietnam, the situation of road traffic safety and traffic rule
violations has been happening complicatedly that causes not only
serious deaths, serious health and wealth losses, destabilizing social
order and safety but also psychological worries for people, great
concerns of state agencies. According to reported data of the Traffic
Police Department in 2017, there were 19,798 road traffic accidents,
killing 8,089 people and injuring 16,970 people nationwide.
Violations of road traffic safety, which are criminally handled, have

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

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contribute to educate military, civil servants and workers to be loyal
to the country, to strictly abide by the law, army orders, to respect the
rules of the commune life, to have awareness of fighting and
preventing crimes and other law violations.
Through the criminal trials in general and road traffic safety
crimes trial in particular of the MCs in Vietnam, it shows that the
provisions of the Criminal Law on those criminals group still have
many loopholes that are not suitable to social development. There are
also dangerous behaviors for the society that arise in reality without
stipulation in the Penal Code that are leading to no legal basis for
settlement. In the process of resolving specific cases, there are also
certain limitations in determining criminal charges, in the application
of circumstances to set up penalties for punishment; in the
application of extenuating and aggravating circumstances; in the
application of penalty decisions. The above-mentioned issues have
certain impacts on the application of law provisions in the Penal
Code on crimes of road traffic safety of the MCs.
Therefore, the study of the topic "Crimes on road traffic safety
according to criminal law from the practical trials of military courts
in Vietnam" has very important meaning both in terms of reason
treatise and practice.
2. Purposes and missions of the thesis
2.1. Purposes
On the basis of studying theoretical issues about crimes on
traffic safety in Vietnamese criminal law, assessing the situation of
trial, finding inadequacies and problems in practical application the
provisions of the Penal Code through trial activities of MCs in
Vietnam. Since then, the thesis propose solutions and
recommendations to improve legal provisions and ensure proper

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


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

Criminal Law; Research road traffic safety crimes, including specific
crimes from Article 260 to Article 266, Chapter XXI of the Penal
Code 2015, amended and supplemented in 2017 (Article 202 to
Articles 207, Cahpter XIX of the Penal Code 1999). The thesis uses
research data in 10 years, from 2008 to 2017 and focuses on instance
and appeal criminal trial levels of military courts in Vietnam.
4. Research method of the thesis
4.1. Methodology
The thesis uses dialectical materialism and historical materialism
of Marxism-Leninism; Ho Chi Minh’s ideology; guidelines and
policies of Vietnamese Communist Party and the State of the
Socialist Republic of Vietnam on crimes, penalties for research
methodology.
4.2. Research methods
Based on an interdisciplinary and multi-disciplinary approach
with systematic and historical characteristics, the thesis uses many
different scientific and social research methods such as: analysis


4
method, systematic method, combination and statistics method,
historical methods, comparative methods...
5. New scientific contributions of the thesis
5.1. New contributions of view and approach
By using multidisciplinary, interdisciplinary methods in law,
especially the methods of legal philosophy, sociological law, legal
psychology, the thesis analyzes and clarifies the current situation of
applying the provisions of the law on road traffic safety crimes, finds
out the limitations of those provisions of law, the mistake on law
application and their causes which are a basical results for building

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


5
organizations and units, especially MCs in Vietnam to apply

regulations on road traffic safety crimes to achieve higher efficiency.
7. Structure of the thesis
In addition to the introduction, conclusion, references and list of
works related to the thesis has been published, the thesis consists of 4
chapters:
Chapter 1: Overview about research and theories
Chapter 2: Theoretical and legal matters on road traffic safety
crimes
Chapter 3: Practical implementation the provisions of the
current Penal Code on road traffic safety crimes in military courts in
Vietnam
Chapter 4: Requirements and solutions to ensure proper
application of law on road traffic safety crimes.


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Chapter 1
OVERVIEW ABOUT RESEARCH AND THEORIES
1.1. International studies
International authors have studied aspects related to traffic
problems, traffic safety as well as conditions and causes of traffic
accidents and factors that affect those crimes. In this field, we can
mention some articles and works of following authors:
Spolander, K: Statistics on drunk driving records related to
traffic accidents; Bailey. J. P. M. (1993): Article on criminal history,
drunk driving and causing fatal traffic accidents in New Zealand;
Junger, M., West, R., & Timman, R. (2001) have the article: "Crimes
and risk behaviors in traffic"; Gururaj. G has the article "Alcohol and
road traffic accidents in South Asia”...
1.2. Local studies

1.1.1. Theoretical studies
* First, the studies of legal concepts and characteristics: The
research group on public safety and public order crimes, on typical
signs of this group of crimes, must be included: The book
“Vietnamese Criminal Law, crimes section (chapter X)” of the
Academy of Social Sciences by Prof. Dr. Vo Khanh Vinh (ed),
published by Social Science Publishing House in 2014; the books
“Road traffic order and safety crime - Some issues of theory and
practical trial in Vietnam”, of Dr. Pham Minh Tuyen published by
Youth Publishing House in 2014,....
* Second, the group of books that study and comment about
crimes elements and legal characteristics of each specific crime in the
Penal Code, include activities of preventing road traffic accidents in
Vietnam, including: "Intensive scientific comments on Criminal Code
– crimes section, Chapter VI - Crimes on public safety and public
order" of MSc. Dinh Van Que; the article “Chapter XIX - Crime on
public safety, public order” of Dr. Nguyen Duc Mai in the book:
“Scientific comments on Vietnamese Penal Code in 1999”; the book
“Scientific comments on the Penal Code 2015, by Assoc Prof. Dr.
Cao Thi Oanh and Dr. Le Dang Doanh, etc...
1.2.2. Sspecific research on road traffic safety crimes
Not may studies have discussed the determinations of criminal
offenses and decisions on penalties for road traffic safety offenses.
These works include doctoral and master's thesis such as:


7
The doctoral thesis of Law "Measures to prevent and fight
against violations of regulations on controlling road traffic means in
Hanoi Capital" in 2001 by Bui Kien Quoc; Master's thesis of Law

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

thesis
- Clarifying legal concepts and characteristics of road traffic
offenses; characteristics of those crimes under the jurisdiction of
military courts in Vietnam; the development process and regulations


8
of Vietnamese criminal law from 1945 to present on this crimes
group.
- Analyzing the provisions of the Penal Code 2015 (amended
and supplemented in 2017) and guiding documents of competent
agencies to clarify the legal elements of specific crimes in the group
of crimes against infringement on road traffic safety. Distinguishing
from other related crimes which are stipulated in the Penal Code and
studying road traffic safety crimes of some countries in the world to
find out the advantages that can be inherited and learned in
legislative work.
- Evaluating the achieved results on practice of crimes
determination and penalties decisions of road traffic safety crimes
from practical trial of MCs in Vietnam. Finding out inadequacies and
problems in practice applying the current provisions of the Penal
Code on those crimes as well as those problems causes.
- Raising some proposals, recommendations and solutions to
improve the provisions of the law as well as to improve the
effectiveness of law application in the trial of road traffic safety
offenses in the future.
Chapter 1 Conclusion


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

* Objective aspects of road traffic safety offenses
* Subjective aspects of road traffic safety offenses
* Subjects of crimes of road traffic safety offenses
2.1.2. Crimes characteristics of infringing upon road traffic
safety under the jurisdiction of military courts in Vietnam


10
2.1.2.1. The organizational structure and jurisdiction of military
courts
Organizational structure: According to Article 50 of the Law on
Organization of the People's Courts, the MCs are organized at 3
levels: The Central Military Court; Military courts of military zones
and the equivalent; Regional military courts.
The object of trial: MCs have jurisdiction on:
"Criminal cases where defendants are active military personnel,
military servants, military workers, military officials, reserve soldiers
during the time of focusing on training or checking the state of
combat readiness; militia and self-defense during the time of
concentrating on training or cooperating with the People's Army in
fighting and serving combat; citizens are mobilized, gathered or
contracted to serve in the People's Army”;
Criminal cases that defendants who are not subjects specified at
Point a, Clause 1 of this Article relate to military secrets or cause
damage to their lives, health, honor and dignity of active military and
public soldiers defense officials, workers and employees, reserve
military personnel during the period of focusing on training or
checking the situation of being ready to fight or causing damage to
property, honor and prestige of the People's Army or offense crime in
military barracks or military areas managed and protected by the

People's Army.
Military courts have jurisdiction to hear all criminals occurring
in the area of martial law”
In addition, when the case has defendants and crimes that are
under the jurisdiction of the Military Court and under the jurisdiction
of the People's Court as well, the trial jurisdiction is implemented:
"In case the case can be separated, the Military Court adjusts the
defendants and crime under the jurisdiction of the Military Court;
People's courts adjudicate defendants and crimes under the
jurisdiction of the People's Courts;
If the case cannot be separated, the Military Court adjusts the
whole case”.
Territorial jurisdiction: the MCs adjudicate cases according to
the military administrative boundaries, a military court of military
zones or regional military courts adjudicate cases occurred in many
provinces and cities.


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2.1.2.2. Crimes factors of infringing upon road traffic safety
under the jurisdiction of military courts
In addition to crimes factors of infringing upon road traffic
safety in general, the offenses of infringing upon road traffic safety
under the jurisdiction of the military tribunals have their own specific
elements which clearly manifest in two factors: objective factors and
the subject factor of crime:
Firstly, the object of the crime: The object of the offenses of
infringing upon road traffic safety is the safety of road traffic
activities; the safety of the lives and health of citizens and property of
the State, property of organizations and citizens. Crimes of infringing

upon road traffic safety under the jurisdiction of the military tribunals
are violations of road traffic safety and causing damage to life, health
and property for active military and public soldiers. military officials,
military workers, reserve soldiers during the time of focusing on
training or checking the state of combat readiness; Self-defense
militias are attached to the army in combat, combat service and those
who are mobilized to carry out military duties are directly managed
by the military units or cause damage to the properties of the Military
Army.
Secondly, the subjects of the crime: The subjects of the offense
of road traffic safety under the jurisdiction of the MCs include two
types of subjects:
First, those who reach a certain age and have a criminal
responsibility of violating road traffic safety and causing damage to
their lives, health and property to active soldiers, military servants
and workers, military officials, reserve soldiers during the time of
focusing on training or checking the status of combat readiness;
militia and self-defense during the time of concentrating on training
or cooperating with the People's Army in fighting and serving
combat; citizens are mobilized, gathered or contracted to serve in the
People's Army;
Second, those who are active soldiers, military servants, military
workers, military officials, reserve soldiers during the time they focus
on training or checking the state of combat readiness; militia and
self-defense during the time of concentrating on training or
cooperating with the People's Army in fighting and serving combat;
citizens are allowed to mobilize, expose or contract to serve in the


12

People's Army in violation of road traffic safety and cause damage to
their lives and health, citizens' and organizations’ properties.
2.2. Development history and criminal law provisions on
offenses of road traffic safety
2.2.1. Regulations on crimes of infringing upon road traffic
safety during the period from the August in 1945 Revolution to
before the Penal Code in 1985
2.2.2. Regulations on crimes of infringing on road traffic
safety in the Penal Code in 1985 and the Penal Code in 1999
2.2.2.1. Regulations on crimes of infringing on road traffic
safety in the Penal Code in 1985
2.2.2.2. Regulations on crimes of infringing upon road traffic
safety in the Penal Code in 1999
2.2.3. Regulations on crimes of infringing upon road traffic
safety in the Penal Code 2015 and the Penal Code 2015 (amended
and supplemented in 2017)
The Penal Code 2015 was passed by the XIII National Assembly
of the Socialist Republic of Vietnam, the 10th session, on November
27, 2015 and takes effect from July 1, 2016. However, due to a
number of errors that need to be amended, therefore, the
implementation of the Penal Code 2015 was postponed. On June 20,
2017, the XIV National Assembly of the Socialist Republic of
Vietnam, the 3rd session passed the Law amending and
supplementing a number of articles of the Penal Code No.
100/2015/QH13, this Law takes effect from January 1, 2018.
2.2.3.1. Regulations on crimes of infringing on road traffic
safety in the Penal Code 2015
2.2.3.2. Regulations on crimes of infringing upon road traffic
safety in the Penal Code 2015 (amended and supplemented in 2017)
2.2.4. Distinguishing offenses of violating regulations on road

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


13
* Distinguish the offense of violating regulations on road traffic
with unintentional injury or harm to the health of others
2.3. Crime of infringing upon road traffic safety according to
the provisions of criminal law in some countries in the world
2.3.1. Crimes of infringing upon road traffic safety in
accordance with the Criminal Code of Russian
In the Russian Federation Penal Code, the offenses of infringing
upon road traffic safety are stipulated in Chapter 27 with the name:
Crimes of safety infringement when controlling and operating traffic.
In Chapter 27, there are 8 articles, but only 3 articles have contents
relating to road traffic safety and have similarities to crimes of
infringing on road traffic safety as stipulated in the Vietnamese Penal
Code Vietnam.
2.3.2. Crimes of infringing upon road traffic safety under the
provisions of the Penal Code of the Federal Republic of Germany
In the Federal Penal Code of Germany in 2009, crimes of
infringing upon road traffic safety are stipulated in Chapter 28 with
the name: Crimes of common danger. In Chapter 28, there are 28
articles, but only three of those have contents relating to road traffic

safety and have similarities to the offenses of road traffic safety as
prescribed in the Penal Code 2015 (amended and supplemented in
2017).
2.3.3. Crimes of infringing upon road traffic safety in
accordance with the Japanese Penal Code
The offenses of road traffic safety in the Japanese Penal Code
are stipulated and located in 3 different chapters: chapter 11 with the
names: “Crimes of obstruction”; Chapter 27 with the name “Crimes
of injury” and chapter 28 with the name “Crimes of causing injury”.
In which, there are four articles that have similarities to the crimes of
infringing on road traffic safety stipulated in the Vietnamese Penal
Code.
Chapter 2 Conclusion


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Chapter 3
PRACTICAL IMPLIMENTATION THE PROVISIONS OF
THE CURRENT PENAL CODE ON ROAD TRAFFIC SAFETY
CRIMES IN MILITARY COURTS IN VIETNAM
3.1. Overview of trial results of crimes of infringing upon
road traffic safety of military courts in Vietnam
In general, the practice of applying legal provisions to
adjudicating crimes of infringing upon road traffic safety in the past
and in the present shows good results and great meanings. We have
shown not only the strictness in criminal law to resolutely punish the
criminals offences, but also partly humanity in leniency for the first
time offenders who know how to repent and the consequences of
damage is low...
The application of legal provisions on the contents of the Penal

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


15
cases/defendants were considered totally 100% of road traffic safety
crimes

Through the statistics in table 3 (appendix), during the period
from 2008 to 2017, the MCs issued appellate trial 404 cases and the
total number of defendants brought to trial was 724 defendants. In
particular, the total number of cases brought to trial on road traffic
safety offenses is 92 cases/93 defendants (accounting for 22.77%).
For crimes of infringing upon road traffic safety, which have been
appealed, the offense of violating the regulations on control of road
traffic means were 92 cases/93 defendants (accounting for 100%).
From above data, it is found that in recent years the proportion
of people who committed those crimes is still high, some crimes is
reduced, and some crimes have not been happened, but those crimes
still account for a high proportion of other crimes like violating
regulations on control of road vehicles.
The solving process of road traffic safety crimes at MCs recently
ensured the right people and the right crimes; decided the penalties in
accordance with the characteristics of the crimes’ and the defendant's
faults; the settlement of compensation has carried out in accordance
with the provisions of law that is reflected in the real cases.
3.2. Limitations and mistakes in practice of determining
offenses and deciding penalties for infringing upon road traffic
safety

3.2.1. Limitations and mistakes in practice of determining
offenses against road traffic safety crimes

Analysis of practical trial of crimes of infringing upon road
traffic safety of MCs during the period from 2008 to 2017 shows
that:
In recent years, the total number of cases and defendants
accused of road traffic infringement offenses tends to decrease, but

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


16
First, the determination of the crime is not accurate.
Second, the problem on damage determination to apply
aggravation circumstances;
Third, assessing the level of errors is not accurate, leading to
wrongful criminal prosecution.
Fourth, identifying violations of the Traffic Law in the case of
violating regulations on control of road vehicles is not accurate.
3.2.2. Limitations and mistakes in deciding penalties for
infringing upon road traffic safety
During the period of 2008-2017, see Table 2 (appendix), found
that the results of judging the accused on the road traffic safety
crimes are mainly two measures: 433 probation cases and 136
imprisonment for 03 years or less cases.
The practice of applying the current criminal law provisions on
those crimes in recent years has shown that there are still some
shortcomings, mistakes in deciding penalties, specific:
Firstly: Wrongly assessing the characteristics and seriousness of
the offense, leading to the wrongdoing of the offender

Second: The penalties decisions are not commensurate with the
actual level of errors and consequences.
Third: Do not apply additional penalties in the case of required
articles
Fourth: The penalties decisions have not fully met the
requirements of crime prevention
In addition to the shortcomings and mistakes regarding the
determination of offenses and the decision on penalties for
infringement on road traffic safety, in fact the trial of this type of
crime is still inadequate and erroneous in the determination. the
status of those involved in the proceedings and the application of
civil law provisions on non-contractual damage compensation.
3.3. Causes of limitations and mistakes in practice of
determining criminals and deciding penalties for infringing upon
road traffic safety
3.3.1. Objective reasons
The basic and important cause of limitations and shortcomings
in the application of laws in judicial trials is due to the incompleted
legal system of our country and criminal procedural laws; The
explanation and guidance on the application of law by competent
authorities is incompleted and apdated.


17
3.3.2. Subjective reasons
Through practical research on the application of regulations on
road traffic infringement crimes in trial activities of the Military
Tribunal, showing limitations and shortcomings in the application of
law stemming from a number of subjective causes: ethics,
professional qualifications, professional skills, independence of

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


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

Fourthly, in adjudicating cases of road traffic safety crimes
judges at all levels, must ensure the international integration trend.
Fifth, the requirements for judicial work in general and the
judicial activities in particular are proposed by the Politburo "must
ensure that every citizen is equal by law, truly democratic and
objective", and in the strategy of the judicial way, the Politburo also
emphasized the central content in the trial of the Court must: "Renew
the trial operation, better define the positions, authorities,
responsibilities of procedural conductors and people participating in
proceedings towards ensuring publicity, democracy, strictness,
improving the quality of litigation at trial sessions", considering this
is a breakthrough stage of judicial activities.
Sixthly, adjudicating cases of road traffic safety crimes requires
meeting the requirements set by the Party's Resolution. To ensure


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these requirements, the judges have to keep abreast of specific
requirements
4.2. Solutions to ensure proper application of law on road
traffic safety crimes
4.2.1. Strengthen the guidance, explanation and propaganda to
bring the Penal Code into life
In order to apply a law into life, it requires a great deal of
participation from all levels of sectors, especially communication and
propaganda of laws. The 2015 Penal Code (amended and
supplemented in 2017) has many new points, requiring agencies to
conduct legal proceedings as well as people to change behavior and
awareness. For example, in law enforcement agencies, the
determination of new relationships in accordance with the law, or the

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


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

Second, in Vietnam, if anyone controls a road vehicle while
drunk or intoxicated due to the use of other strong stimulants that
cause loss of life or serious damage to health and property of others,
will be prosecuted for criminal liability under Article 202 of the
Penal Code 1999, (Article 260 of the Penal Code 2015, amended and
supplemented in 2017), while drunkenness and control of means of
transport does not cause damage, only administrative penalties and
not considered criminals.
4.2.3. Amending, supplementing and promulgating documents
explaining and guiding the application of uniform laws related to
the provisions of the Penal Code on crimes of infringing on road
traffic safety
In order to ensure undated and consistency in the application of
laws in the trial of criminal cases in general and crimes of infringing
upon road traffic safety in particular, the author has some following
recommendations:
Resolution No. 02/2003/NQ-HDTP dated on April 17, 2003 of
the Council of Judges of the Supreme People's Court guiding the
application of a number of provisions of the Penal Code "Damage to
life or serious damage on health and property of others" stipulated in
Clause 1, Article 202 of the Penal Code 1999 serves as a basis for
prosecution for penal liability for persons who violate the regulations
on road traffic safety.
The issue of separation the consequences in the case of traffic
accidents due to the fault of many people together.
The circumstances: "Without driving license or being prescribed
driving".
The circumstances: "Using drugs" stipulated in Point b, Clause
2, Article 260 of the Penal Code 2015 (amended and supplemented in
2017) is the situation of aggravating frame.

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


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

foundations and working vehicle funding, step up the application of
information technology and step by step modernize judicial agencies
....
4.2.6. Strengthening the review of trial experience of the
Military Court as a basis for the application of laws on road traffic
offenses
A review of experiences in the application of the law on crimes
in general and the crimes of infringing upon road traffic safety in
particular in the criminal trial is an important task of the Court.
4.2.7. Enhancing the coordination between procedureconducting agencies in settling cases of crimes of infringing upon
road traffic safety
It is collaboration between three agencies, the Investigation, the
Procuracy and the Court in fighting crimes in general and judging
crimes of infringing on road traffic safety in particular.


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4.2.8. Stepping up propaganda on the prevention and
combating of crimes infringing upon road traffic safety.
Strengthen propaganda and education on road traffic safety law,
which is mainly the Road Traffic Law of 2008 for people
participating in traffic on all means of communication or through
union organizations… Agencies, unions, schools and local
administrations at all levels mobilize individuals and social
organizations to build and implement the Law on road and traffic
cultural.
4.2.9. Improving the moral qualities and professional
qualifications of judges and inspectors
Improving the quality of judges in general and in the current
period is an urgent requirement stemming from the practice and the

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