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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 : 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 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 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 INTRODUCTION 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 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 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 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 Objects and scope of the thesis 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 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 method, systematic method, combination and statistics method, historical methods, comparative methods 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 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, organizations and units, especially MCs in Vietnam to apply regulations on road traffic safety crimes to achieve higher efficiency 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 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 Chapter 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: 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 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 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 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 11 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 articles, but only 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 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 Conclusion 14 Chapter 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 (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 (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 (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 conclusion 18 Chapter 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 19 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 20 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 21 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 22 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 23 military courts are directed and managed in all aspects by the Military courts in Military Zone This means that each MCs is an independent military unit established from the grassroots level to the central level and the subordinates are under the leadership of all aspects of their superiors The establishment under this model, Central Military Court will directly implement recruitment, rotation, mobilization of officials in MCs according to needs and staff agreed between the SPC and the Ministry of Defense that avoids unwanted effects on military administrative factors in trial activities 4.2.12 Studying to propose the establishment of a specialized Court to hear and deal with traffic safety cases Through research, the author found that the Traffic Court is not a "Special Court" nor is it established into an independent Court system The main goal of the establishment of this court is to judge cases and deal with traffic safety and order cases In essence, this is the type of specialized court within the People's Court system Therefore, the establishment of this Court must be associated with the organization of the People's Court system in the spirit of judicial reform Chapter conclusion CONCLUSION Crimes of infringing upon traffic safety are dangerous acts to the society, are stipulated in the Penal Code, are 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 Those crimes are presented in five typical legal elemets In addition to the general characteristics, traffic safety crimes committed by the jurisdiction of the MCs also have specific characteristics Crimes of infringement on road traffic safety is historical crimes Since the August Revolution in 1945, our State has issued legal documents regulating crimes of infringing upon traffic safety Through different historical periods, Vietnamese criminal law provisions on road traffic safety crimes have been increasingly improved, met the requirements of judicial reform and the demands of practice, especially in the current period when those crimes are rising, threatening the life, health and property of citizens In the 24 Penal Code 2015 and the Penal Code 2015 (amended and supplemented in 2017), the road traffic safety offenses are regulated from Article 260 to Article 266 with many new amendments and supplements in the criminal structures as well as punishments The reality of judging the road traffic safety crimes in the MCs in the past time shows that the quality of trial of MCs at all levels has been generally ensured and achieved encouraging results However, the application of the law on road traffic safety offenses in the MCs also has certain shortcomings and limitations, such as: determining the crime is not accurate or the penalty framework is not appropriate; assessing evidence to prove criminals, determining incomplete litigation participants; deciding the compensation level is not commensurate with the level of damage caused by the accused;, applying Article 47 of the Penal Code 1999, Article 54 of the Penal Code 2015 and the Penal Code 2015 (amended and supplemented in 2017) to decide penalties, applying probation sentences is not accurate that are causing significant impacts on the trial results Limitations stem from both objective and subjective reasons, which are the provisions of the law are not consistent with the reality, the awareness and application of the provisions of the law has not been completed Improving and developing the effectiveness of the application of criminal law provisions on road traffic safety crimes is an objective, indispensable requirement to protect people's lives, health and property Therefore, the thesis has proposed solutions to complete the provisions of the Penal Code as well as regulations on this group of crimes and solutions to ensure the proper application of regulations on traffic safety crimes in practice Since then, improving the effectiveness of the trial of road traffic offenses of the People's Courts in general and in the trial activities in the military courts in Vietnam in particular ... 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... 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... references and list of works related to the thesis has been published, the thesis consists of chapters: Chapter 1: Overview about research and theories Chapter 2: Theoretical and legal matters on
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