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MINISTRY OF EDUCATION AND TRAINING

MINISTRY OF JUSTICE

HANOI LAW UNIVERSITY

HA LE THUY

JUDICIAL MEASURES IN VIETNAMESE CRIMINAL LAW THEORETICAL AND PRACTICAL ISSUES

Major: Criminal law and criminal procedure
Code : 9380104

SUMMARY OF DOCTORAL THESIS IN LAW

HA NOI – 2020


THE THESIS WAS COMPLETED AT:
HANOI LAW UNIVERSITY

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

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

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

The thesis can be found at:
1) National Library
2) Library of Hanoi Law University


LIST OF ANNOUNCED RESEARCH WORKS RELATED
TO THE THESIS’ THEME
1. Ha Le Thuy (2015), Some issues on judicial methods in Vietnam's
criminal law and solutions for complementing, Journal of
Procuratorate Studies, (1), pp.56-63.
2. Ha Le Thuy (2015), As to application of judicial measures in place of
penalization towards juvenile delinquency pursuant to the current
criminal law in Vietnam, Journal of Human Resources Development, (4),
p. 63-68.
3. Ha Le Thuy (2016), Judicial measures in the Criminal Law of some
countries in the world, The People’s Court Journal (4), pp.32-36.
4. Ha Le Thuy (2017), Penalties and judicial measures application to
offenders in Vietnam Penal Code and related laws in number of
countries, Journal of Legislative Studies (14), p.60-64, 34.
5. Ha Le Thuy (2020), Evaluating provisions of the Criminal Code
2015 on supervisory, educational measures applied to offender aged
under 18 in comparison with foreign law, The People’s Court Journal,
(11), p.1-8, 48.



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A. INTRODUCTION
1. The urgency of the topic

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

MEASURES IN VIETNAMESE CRIMINAL LAW - THEORETICAL
AND PRACTICAL ISSUES" as our research thesis.
2. Research objectives and tasks of the thesis
2.1. The objective of the thesis
The dissertation sets out the research objectives and theoretical
clarifications on the concept, characteristics and basis of the provision of judicial
measures; analyze and clarify the provisions of the penal code on judicial
measures to evaluate the suitability between reasoning and statutory law.


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Besides, the thesis also focuses on analysis and clarification of the reality
of applying judicial measures to find out restrictions, inadequacies, and evaluate
difficulties and obstacles. On that basis, the dissertation also sets out the goal of
perfecting the law on judicial measures, discovering remedial solutions and
ameliorating efficiency to be the basis for flexible application and judicial
measures in the practice of criminal handling.
2.2. The task of the thesis
- Research theoretical concepts, characteristics of judicial measures,
analyze issues related to judicial measures to identify different concepts of
judicial measures, from which construction get the scientific concept of judicial
measure;
- Studying legally on provisions of the Criminal Code on judicial
measures, analyzing and clarifying the history of criminal legislative provisions
on judicial measures, generalizing provisions of criminal law of some states in
the world from which to compare, contrast and draw similarities and differences
with Vietnam's criminal law;
- Research, analyze and evaluate the current provisions of the criminal
law and the reality of the application of judicial measures in Vietnam's criminal

law, point out the problems and limitations in the process of applying judicial
measures;
- Research and find solutions to perfect the law, identify the factors that
ensure the correct application of legal provisions on judicial measures to
improve the effectiveness of the application of judicial measures in practice.
3. Research subject and research scope of the thesis
3.1. Research subjects
The thesis studies the theoretical issues of judicial measures, with
reference to the provisions of Vietnam's criminal law from 1945 to 2015
Criminal Code and the criminal law of a number of states in the world have
regulations on judicial measures, studying the current provisions of Vietnam's
criminal law and the practice of applying these measures in Vietnam, studying
solutions to improve their effectiveness of the application of judicial measures
in Vietnamese criminal law.
3.2. Research scope
The thesis studies the above-mentioned subjects based on the provisions
of the current Criminal Code and legal documents prescribing judicial measures
so far. The thesis has studied judgments, decisions and procedures, figures
whole nation and in some provinces and cities with large number of sentences
in 10 years, from 2008 until 2017. The thesis doesn’t research the reality of
applying judicial measures of legal entities committing crimes. Because, at the
time of the study, Criminal Code 2015 was officially in effect, so no cases have
been handled and therefore no actual data.


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4. Research methodology
The thesis is based on the methodology of dialectical materialism and
historical materialism, using a combination of methods such as combining

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


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CHAPTER OVERVIEW RESEARCH TO THE THESIS
1. The research in Vietnam related to the topic
1.1. The work of research on judicial measures in general
At the level of monograph there are works: “Criminal responsibility and
punishment” of the authors Nguyen Ngoc Hoa, Le Thi Son and Pham Thi Lien
Chau; “Criminal liability and exemption from criminal liability” by the
collective of authors Le Cam, Pham Manh Hung and Trinh Tien Viet;
“Completing the provisions of the General Criminal Code in the face of new
requirements of the country” by author Trinh Tien Viet; “Scientific
commentary on new points of the Criminal Code 2015 (amended and
supplemented in 2017)” by Nguyen Thi Phuong Hoa and Phan Anh Tuan;
“Scientific awareness of the common part of Vietnamese criminal law after the
third codification” by Le Van Cam, author of the research team. At the doctoral
dissertation level, there are works: “Criminal liability institution under
Vietnam's Criminal Law” by Pham Manh Hung; “Criminal responsibility for
environmental crimes” by Duong Thanh An; “Major penalties for not
depriving people of Vietnam's criminal law” by Nguyen Minh Khue. At the
research level in the form of articles with works: “Judicial measures in the
1999 Penal Code and the completion of the Criminal Procedure Code on the
order and procedures for applying measures” by Pham Hong Hai; “Penalties
and judicial measures in Vietnamese criminal law” by Le Cam ...
1.2. The research works on each specific judicial measure
- At the dissertation level, there are constructions: “Judicial measures
applied to juvenile offenders” by Duong Thi To Nga; “Judicial measures to
return properties, repair or compensate for damage according to the 1999
Penal Code” by Vu Thi Phuong.... At the level of the articles there are articles
such as: “Regulations of the Criminal Code and the Criminal Procedure Code
on return of property to owners and applicable practices” by Nguyen Van
Truong; “Completing the provisions on criminal liability of criminal legal
entities in the Criminal Code 2015” by Nguyen Thi Phuong Hoa...

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


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

liability of French companies” by Phillipe Xavier Bender; “Swiss Penalties and
Measures” by the Federal Ministry of Justice and the police, Swiss Federal
Office of Justice.
Thus, from the perspective of each specific defense plan, foreign works
have also studied the copyrights applied to juvenile offenders or against legal
entities who have committed crimes but have not yet studied them into a
cabinet, specific content about the judicial mesures.
3. Evaluating the research situation related to the thesis
3.1. The research results are inherited and continue to develop by the thesis
On the basis of presenting and analyzing domestic and foreign researches
related to the judicial mesures from the perspective of overall research and
specific research of each measure, the thesis has shown the results that the
works go ahead to be able to inherit and develop.
3.2. The issues related to the thesis have not been solved or continue research
The thesis points out the contents that have not been mentioned or
clarified by the previous works and need to continue researching and clarifying
in this thesis: Theoretical issues about the legal frameworks in the law Criminal
law; Legislative experience of some typical countries in the world providing for
judicial measures; Practical application of judicial mesures specified in
Vietnam's Criminal Law; Proposal of complete solutions regulations of criminal
law and solutions to ameliorate the effectiveness of applying the judicial
mesures in practice.
3.3. Research hypotheses
Hypothesis 1: The nature of judicial measures in relation to punishment
and other criminal remedies should be re-perceived. The judicial mesures is not
only a means to support the punishment but also an independent role.


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

has given the author a comprehensive and insightful view on the issues related
to the thesis. Thereby, the author also found that, although there are many
works at different angles research on judicial measures, but until now, there has
not been any work at the advanced thesis level research in a comprehensive and
holistic perspective from the criminal law perspective on judicial measures. So,
the thesis will continue to focus on clarifying the theoretical issues on judicial
measures, the practice of applying judicial measures of Vietnam, thereby
proposing synchronous and have practical value to contribute to improving the
effectiveness of the application of judicial measures in Vietnam.


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C. CONTENTS, RESEARCH RESULTS
CHAPTER 1. GENERAL ISSUES AND CRIMINAL LAW IN SOME
COUNTRIES ON JUDICIAL MEASURES
1.1. Theoretical issues on judicial measures
1.1.1. Definition and characteristics of judicial measures
1.1.1.1. Definition of judicial measures
Judicial measures are from the term “security measures”. The theoretical
basis of security measures in the Criminal Law originated in the 19 thcentury
when there was no clear difference between penalties and other criminal
measures. Lawmakers believe that there is a certain entity appearing in danger
in society under the affect and impact of criminal factors. These entities need to
be prohibited before they are at risk of committing crimes by restricting a
number of special rights (such as disarming, confiscation of property). This is
considered a security measure because the purpose of social protection comes
from the nature and dangerous threat of these people.
Based on the concept of other criminal coercive measures, foreign criminal
law science also uses different terms to name these measures such as “security

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


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

criminal law
Secondly, judicial measures are suited by competent authorities during the
proceedings and execution.
Thirdly, judicial measures are applied to individuals committing crimes,
corporate legal entities committing crimes and those showing dangerous acts to
society in case of incapability of criminal liability (it is not considered crime).
Fourthly, judicial measures are applied independently or with penalties.
Fifthly, judicial measures may or may not be associated with criminal
liability.
Sixthly, judicial measures are preventive. This is an indispensable
characteristic of the criminal coercive measures to improve the system of
criminal remedies for entities committing crimes.
Seventhly, judicial measures contribute to overcome damages caused by
offenders, those committing dangerous acts to society in case of incapability of
criminal liability, corporate legal entities committing crimes, protecting rights
and interests of individuals, agencies and organizations, and simultaneously
reforming and educating offenders.
1.1.2. The role of judicial measures
First, judicial measures contribute to diversify the handling measures for
individuals and corporate legal entities committing criminal offences in the
system of criminal coercive measures.
Second, judicial measures contribute to support penalties to achieve the
purpose of handling crimes.
Third, judicial measures contribute to overcome damages caused by
criminals, protect the legal rights and interests of individuals, organizations and
other entities in the society.
1.1.3. Classification of judicial measures
- Based on entities of judicial measures, it can be classified into groups:
the group of judicial measures affecting the rights of objects, money, property,
the group of measures affecting the rights of freedom and human honor.

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


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

judicial measures and penalties including: foundation for application, subjects
being applied, method of regulation and application, basis of application,
authority of application and purpose. Accordingly, the dissertation evaluates
and clarifies the indispensable role of judicial measures in the system of
criminal coercive measures.
1.2. The historical overview of formation and development of judicial
measures in Vietnam's criminal law before the 2015 Criminal Code
1.2.1. The period from the feudalism to the August Revolution of 1945
The criminal law in the feudalism had regulations on other criminal
prosecution in addition to the penalties containing judicial measures; however,
legislators at that time did not indicate a specific term and how to correctly
understand judicial measures as they do today. These measures are meant as
supportive measures in necessary cases, even indispensable in the application of
dealing with some crimes.
1.2.2. The period from the August Revolution of 1945 to before the
promulgation of the 1985 Criminal Code
It can be seen that apart from penalties, the confiscation of objects and
money directly related to crimes was the earliest and the most applied in the
criminal law of our country. In addition, criminal documents had no clear
distinctions among measures, and defined general regulations, without
specifying contents, scopes, conditions and duration for each measure. Those
limitations particularly affected on the effectiveness of criminal liability in
reality. But it is worth acknowledging that the regulations of judicial measures
during this period were precious experiences informing Vietnam’s criminal law
in 1985.


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1.2.3. The period of the promulgation of the Criminal Codes from 1985 to

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

additional penalties within the penalty system. Specifically, the security
measures apply to juvenile offenders including: mandatory supervision,
mandatory attendance at a correctional institution; to offenders over 18 years
old including: expulsion, prohibition of accommodation in the territory of
France. The classification of penalties and security measures only identified the
different purposes of these measures, but the nature and security measures
could still be the main or additional penalties in the system of penalties.
1.3.3. Provisions on judicial measures in German Federation’s criminal law
Germany’s Criminal Code defines judicial measures in chapter three, title
6under the name Measures of reform and prevention including: compulsory


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placement in a psychiatric hospital, compulsory placement in an addiction
treatment facility, compulsory placement in preventive detention, mandatory
supervision of conduct, disqualification from driving and disqualification from
exercising a profession. It can be seen that Measures of reform and prevention
prescribed by Germany’s Criminal Code are not under the penalty system nor
are they considered as an accompanying consequence as the criminal law in
some other countries in the world, they are separate from criminal prosecution
system aiming to improve the status of the person being applied as well as to
ensure social safety.
1.3.4. Provisions on judicial measures in Russian Federation’s criminal law
Russian Federation’s Criminal Code stipulates judicial measure at Section
VI, chapter 15 and chapter 15-1 under the name Other Criminal Legal
Measures, including: compulsory measures of medical treatment, confiscation
of property and compensation for damages, compulsory education. There is no
separate part on judicial measures or any provisions indicating the purpose and
meaning of the application of these measures in Russian Federation’s Criminal

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


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Chapter 2. JUDICIAL MEASURES UNDER THE PROVISIONS

OF THE CURRENT VIETNAMESE CRIMINAL LAW
AND PRACTICE OF APPLICATION
2.1. Current Vietnamese criminal law provisions on judicial measures
2.1.1. Provisions on confiscation of money and items directly related to the
crime
Confiscation of money and items directly related to the crime is
interpreted as confiscation to supplement the state budget, however, if the
confiscated objects and money are no longer valid or used, they must be
destroyed. In terms of applicable conditions, confiscation of money and items
directly related to the crime applied to all types of crimes and to all criminals.
In terms of content, confiscation of money and items directly related to the
crime is deprivation of objects, money of offenders or stripping of objects and
money that offenders have earned from crimes to pay into the state budget or
for disposal if no longer valid. The purpose of this measure is to prevent and
ensure the deterrence of crime, stability and social order.
2.1.2. Provisions on returning, repairing of property or provision of
compensation; offering of public apology
In terms of applicable conditions, this measure can be applied to all types
of crimes and all subjects. In terms of content, this measure force criminal
subjects to return properties they have illegally appropriated to their lawful
owners or managers. In cases the criminal subjects have caused the above
properties to be damaged, they must repair or compensate for the damage or
must still apologize publicly. In terms of purpose, this measure is applied to
support the penalty, in order to restore the original state of ownership when the
crime has not occurred or to remedy the consequences caused by the criminal
act, to restore the honor and dignity that the offender committed with the
victim.
2.1.3. Provisions on mandatory disease treatment
Mandatory disease treatment is forcing a person who, during or after
performing dangerous acts for the society but before being convicted or is

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


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

punish offenses committed by an individual in the name of legal entities, then it
is the responsibility of the legal entity to restore the original state for material
damage caused by an individual, organizations or a society.
2.1.5.2. Implementation of other measures for mitigation and prevention of
consequences.
Remedy may be interpreted as the legal entity committing a crime by
using measures prescribed by law to limit or restore a part of the original state
caused by its acts. According to the above provisions, an act may be applied
many remedies in addition to other sanctions. Law-makers formulate the
contents of measures to force the remedial and prevent from consequences
continously happening related to the environment, goods, products and articles
that are the subjects of the impact of these criminal groups.
2.2. Practical application of the provisions of the law on judicial measures
in Vietnam from 2008 to 2017
2.2.1. Situation of applying judicial measures in Vietnam from 2008 to 2017
2.2.2.1. The situation of applying judicial measures to confiscate objects and
money directly related to crimes
The application of measures of confiscation of objects and money directly
related to crimes focused on the following criminal groups: crimes of offences
against the person and repulation offences against rights of property drugrelated offences against public order and public safety. These crimes are both
affected by property and at the same time, offenders often use tools and means
to support crimes. Therefore, when being handled criminally, the competent
authorities will temporarily seize them to serve the process of investigation,
prosecution and trial. When deciding criminal responsibility for offenders, the
Court may exproprivate or destruct. If the property is owned by the other that


14

has no fault in letting the offender use it in the commission of a crime, then the

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

Article 138
60
55
91,6%
Article 139
95
92
96,8%
Article 140
35
30
85,7%
Article 194
54
54
100%
Article 250
33
30
90,9%
Article 258
7
7
100%
Article 278
8
0
0%
Article 280
7

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

33,3%
Article 133
40
38
95%


15

Article 135
Article 136
Article 138
Article 139
Article 140
Article 194
Article 250
Article 258
Article 278
Article 280
Total

8
7
60
95
35
54
33
7
8

7
500

8
7
55
92
28
14
29
4
8
6
409

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

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

compulsory medical treatment, we also realize that according to the mental
forensic examination plays an important role to quickly resolve the case, but
currently has not been paid attention to implement effectively and
synchronously.
Table 3.2: Situation of defendant applying of mandatory disease treatment
at the proceedings
Year
(1)

2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
Total

Total
number of
defendants
(2)

Number of
Number of
Ratio %
detainees

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

47
0
0,04%
116,178
123
71
0,16%
106,200
88
33
0,11%
101,536
116
67
0,18%
95,248
61
21
0,08%
1,046,215
666
192
0,08%
(Source: Statistics of the Supreme People's Procuracy)


16

2.2.1.4. Situation of applying judicial measures to juvenile offenders
Through the research of cases of defendants applying the Court's at all

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

2744
3900
1
6
2009
2722
3710
4
4
2010
2582
3418
1
2
2011
2355
3243
1
1
2012
4541
6157
13
24
2013
3979
5277
8
17
2014

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

still obstacles, inadequacies in the law, shortage in the process of law
application…These issues will be analyzed in details in the following sections.


17

2.2.2. Problems and limitations in the practice of judicial application
2.2.2.1. For judicial measures to confiscate objects and money directly related
to crimes
Firstly, the problems mentioned in Clause 1, Article 47 confiscation of
tools and means of the offenders or of other persons who are at fault in letting
their properties be used as tools and means for offenses, but the property has
been sold or is not recoverable; problems related to the identification of objects
and money due to crimes or from the sale, purchase or exchange of such things,
with regard to problems of objects that the state banned from storage and
circulation at Point b, Clause 1, Article 47.
Secondly, restrictions on how to understand and apply the law. In current
practice, the confiscation of tools and means used in the commission of crimes
is still inconsistent between the procedure-conducting agencies due to different
understandings about the tools and means used for the commission of crimes.
Thirdly, the limitations of the procedure proceedings. Practices handling
crimes, handling material evidence show that, in some cases, the measures of
confiscation of objects and money directly related to crimes should be applied
but the courts do not.
2.2.2.2. For judicial measures returning properties, repairing or compensating
damages, forcing to publicly apologize
Firstly, problems about the provisions of law. There are viewpoints that
the measures of returning property, repairing or compensating for damage are
measures prescribed by the Penal Code but belong to the content of civil
liability because they originate from the obligation to pay for damages caused

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


18

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

state management of correctional institutions yet is not synchronized and
effective. Currently, the organization of the state management system for
correctional institutions has not yet been consolidated and not yet
professionalized.
2.2.3. The cause of the problems and restrictions in the application of judicial
measures
2.2.3.1. The cause of the legal system
Due to the fact that the criminal law has not caught up with the rapid and
diverse development of social relations that need to be adjusted, due to the lack
of coherence and uniformity of the law, it has caused some embarrassments in
the application of judicial measures of procedure-conducting agencies or
procedure-conducting persons.
2.2.3.2. Causes of guidance and interpretation of laws
Guidance on the application of laws by competent agencies has not yet
been consistent, timely and synchronized. The documents guiding the
application of the provisions of the Criminal Code, the Criminal Procedure
Code are still scattered or only guide a specific issue that confuse the
procedure-conducting agencies in their application. .
2.2.3.3. The cause of the subject of application of the law
Those who apply the law still have many restrictions of their awareness
and practical capacity. The number of cases is increasing while the number of
judicial officers and judicial officers are insufficient to meet the needs of
prompt, timely and lawful handling, which has led to the overcrowded, backlog
of judgments, overdue sentences increased.
2.2.3.4. Causes of material facilities and equipment
The State's economic conditions have not yet met the requirements of the
full and effective implementation of criminal coercive measures in general,
including judicial measures in particular. Physical conditions, facilities,
infrastructure, equipment are still inadequate and unable to meet the
requirements of the implementation of current judicial measures.

19

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

20

CHAPTER 3. THE COMPLETION OF LAW AND SOLUTIONS
TO IMPROVE THE APPLICATION OF JUDICIAL MEASURES
3.1. Applied factors in accordance with regulations on judicial measures in the
2015 Criminal Code
The dissertation indicates the following factors:
Firstly, the provisions of the Cirminal Code on judicial measures must be
applied simultaneously and ensure the principles of criminal law;
Secondly, make sure to quickly develop and issue guidanceon
implementing and explaining new provisions in the criminal code;
Thirdly, the application of judicial measures also takes into account of the
qualifications and capabilities of the proceeding-conducting persons;
Fourthly, facilities, equipment, and means also need to be invested to meet
the timeliness and effectiveness of the implementation of judicial measures;
Fifthly, it is necessary to have a consistent mechanism among the
competent authority, competent law enforcement persons, and the specialized
staff;
Sixthly, it is necessary to make sure the requirement ofthe prevention and
prompt and strict prosecution of crimes, ensuring the respect of democratic
rights, legal rights and interests of citizens.
3.2. The completion of legal regulations on judicial measures
3.2.1. The completion of regulations of the criminal law on judicial measures
3.2.1.1. Concerning the general regulations on judicial measures
First, it is necessary to theoretically define judicial measures to ensure the
clarity and consistency in comparison with other definitions in the criminal law,
including the role and effect of the application of judicial measures, entities of
application, especially the principles of the application of judicial measures.
Second, in order to ensure the consistency and completeness, it is
necessary to re-design Article 46 on fully listing judicial measures, adjusting

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


21

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

to apply compulsory education in a correctional institution to juvenile offenders
instead of penalties that they are exempted from the criminal liability.
3.2.2.The completion of guidance on the application of criminal law, criminal
procedures, and execution of criminal sentences related to judicial measures
First,the Council of Judges of the Supreme People's Court should select
the judgments that apply judicial measures prescribed in the latest Criminal
Code to develop into judicial precedents for the Courts to apply in the trial
process.
Second, the competent authorities should issue joint circulars on providing
the guidance for the agencies conducting legal proceedings, ensuring the
consistence in the application of law.
Third, concerned authorities should organize conferences and workshops
to summarize lessons learned in the practice of applying judicial measures,
thereby serving as a base for adjusting, supplementing and amending the
legislative and practical deficiencies, if any.
3.3. Enhancing the capacity and professional responsibility for members in
charge of the investigation, prosecution, judgment and enforcement of
judgment.
The competent members in the course of the investigation, prosecution,
proceedings and enforcement of judgment should improve their professional
knowledge so that the implementation of judicial measures complies with the
provisions of law.
The State should regularlygive training courseson professional knowledge
and skills to people who directly work with juvenile offenders such as educatorwarden, regional police, mediators, officials in the field ofpopulation, family
and children in the locality.
Relevant members in charge of implementing other decisions of the Court
need to enhance their professional skills in particular and legal knowledge in