Chương VII Bộ luật hình sự 1999: Quyết định hình phạt

Chapter VII

DECIDING PENALTIES

Article 45.- Bases for deciding penalties

When deciding penalties, the courts shall base themselves on the provisions of the Penal Code, taking into consideration the nature and extent of danger posed to society by the acts of offense, the personal records of the offenders, and any circumstances that extenuate or aggravate the penal liability.

Article 46.- Circumstances extenuating penal liability

1. The following circumstances are considered as extenuating the penal liability:

a) Offenders have prevented and/or reduced the harm caused by their offenses;

b) Offenders volunteer to repair, compensate for the damage or overcome the consequences;

c) Crimes are committed in cases where it is beyond the limit of legitimate defense;

d) Crimes are committed in cases where it is beyond the requirements of the urgent situation;

e) Crimes are committed in cases where offenders are mentally incited by the illegal acts of the victims or other persons;

f) Crimes are committed due to particular difficulty plights not caused by themselves;

g) Crimes are committed but no damage or minor damage is caused;

h) Crimes are committed by first time offenders and in cases of less serious crimes;

i) Crimes are committed due to threats and/or coercion by other persons;

j) Crimes are committed due to ignorance;

k) Offenders are pregnant women;

l) Offenders are aged persons;

m) Offenders are persons suffering from illnesses that restrict their cognitive capability or the capability to control their acts;

n) Offenders give themselves up;

o) Offenders make honest declarations and reports and show their repentance;

p) Offenders who actively help responsible bodies detect and investigate the crimes;

q) The offenders have redeemed their faults with achievements;

r) The offenders are persons who have recorded outstanding achievements in production, combat, study or work.

2. When deciding penalties, the court may also consider other circumstances as extenuating, but must clearly inscribe them in the judgment.

3. The extenuating circumstances which have been prescribed by the Penal Code as signs for determining crimes or determining the penalty bracket shall not be considered extenuating circumstances for the purpose of deciding penalties.

Article 47.- Deciding penalties lighter than those prescribed by the Penal Code

Where there exist at least two extenuating circumstances as provided in Clause 1, Article 46 of this Code, the courts may decide a penalty under the lowest level of the penalty bracket stipulated by the law, which, however, must lie within the adjacent lighter penalty bracket of the law; where the law contains only one penalty bracket or such penalty bracket is the highest penalty bracket of the law, the courts may decide a penalty below the lowest level of the bracket or move to another penalty of lighter category. The reasons for such reduction must be clearly inscribed in the judgement.

Article 48.- Circumstances aggravating the penal liability

1. Only the following circumstances are considered circumstances aggravating penal liability:

a) Committing crimes in an organized manner;

b) Committing crimes in a professional manner;

c) Abusing positions and powers in order to commit crimes;

d) Committing crimes in a hooligan manner;

e) Committing crimes with despicable motivation;

f) Intentionally carrying out crimes to the end;

g) Re-offending, recidivism, dangerous recidivism;

h) Committing crimes against children, pregnant women, aged persons, persons unable to defend themselves or persons dependent on offenders in material and/or moral conditions, work or other ways;

i) Infringing upon the State’s property;

j) Committing crimes causing serious, very serious or particularly serious consequences;

k) Taking advantage of war conditions, emergency situations, natural calamities, epidemics or other special difficulties of society in order to commit crimes;

l) Using treachery or, cruel tricks to commit crimes and/or using means capable of causing harm to many persons;

m) Inciting juveniles to commit crimes;

n) Committing treacherous and/or violent acts in order to shirk or conceal crimes.

2. Circumstances which are constituents of a crime or determine the penalty bracket shall not be considered aggravating circumstances.

Article 49.- Recidivism, dangerous recidivism

1. Recidivism means cases where offenders have been sentenced and have not yet had their criminal records wiped out but again commit crimes intentionally or commit very serious crime or particularly serious crimes unintentionally.

2. The following cases are considered dangerous recidivism:

a) Offenders have been sentenced for very serious crimes or particularly serious crimes committed intentionally, have not yet had their criminal records wiped out but again commit very serious crimes or particularly serious crimes unintentionally;

b) Offenders have relapsed into crime, not yet had their criminal records wiped out but again commit crimes intentionally.

Article 50.- Deciding penalties in cases where more than one crime is committed

When trying a person who has committed more than one crime, the court shall decide a penalty for each crime, then augment the penalties according to the following regulations:

1. With regard to principal penalties

a) If the penalties already declared are all non-custodial reform or all termed imprisonment, such penalties shall be added together into a common penalty; the common penalty must not exceed three years for non-custodial reform, and thirty years for termed imprisonment;

b) If the penalties already declared are non-custodial reform and termed imprisonment, the non-custodial reform shall be converted into imprisonment penalties according to the ratio that three days of non-custodial reform shall be converted into one day of imprisonment in order to make the common penalty as prescribed at Point a, Clause 1 of this Article;

c) If the heaviest penalty among the already declared penaties is life imprisonment, the common penalty shall be life imprisonment;

d) If the heaviest penalty among the already declared penalties is the death sentence, the common penalty shall be the death sentence;

e) Pecuniary penalties shall not be augmented with other types of penalty; the fine amounts shall be added up into the common fine;

f) Expulsion shall not be augmented with other types of penalty.

2. For additional penalties

a) If the already declared penalties are of the same type, the common penalty shall be decided within the time limit prescribed by this Code for such type of penalty; particularly for pecuniary penalties, the fine amounts shall be added up into the common fine;

b) If the already declared penalties are of different types, the sentenced persons shall have to serve all the declared penalties.

Article 51.- To augment penalties of many judgements

1. In cases where a person who is serving a sentence is tried for a crime which had been committed before such sentence, the court shall decide the penalty for the crime being tried, then decide the common penalty as provided for in Article 50 of this Code.

The time served for the previous sentence shall be deducted from the term of the common penalty.

2. When a person who is serving a sentence and commits a new crime is tried , the court shall decide the penalty for the new crime, then add it to the remainder of the previous sentence before deciding the common penalty as provided for in Article 50 of this Code.

3. In cases where a person has to serve many sentences which have already taken legal effect while the penalties have not yet been augmented, the chief judge of the Court shall decide the augmentation of the sentences as provided for in Clause 1 and Clause 2 of this Article.

Article 52.- Deciding penalties in case of preparation for crime commission, incompleted commission of crime

1. For acts of preparing to commit crimes and acts of committing incomplete crimes, the penalties shall be decided according to the provisions of this Code on corresponding crimes, depending on the nature and the extent of danger to the society of such acts, the extent of realizing the intention to commit crimes and other circumstances that make the crimes not carried out to the end.

2. For cases of preparing to commit crimes, if the applicable law provision stipulates the highest penalty is life imprisonment or the death sentence, the applicable highest penalty shall not exceed twenty years of imprisonment; if it is termed imprisonment, the penalty shall not exceed half of the imprisonment term prescribed by the law provision.

3. For cases of incomplete offense, if the applicable law provision stipulates the highest penalty being the life imprisonment or death sentence, these penalties can only apply to particularly serious cases; if it is termed imprisonment, the penalty level shall not exceed three quarters of the imprisonment term prescribed by the law provision.

Article 53.- Deciding penalties in cases of complicity

When deciding penalties for accomplices, the court shall take into account the nature of complicity and the nature and extent of involvement of each accomplice.

Extenuating, aggravating or penal liability exemption circumstances of any accomplice shall only apply to such accomplice.

Article 54.- Penalty exemption

Persons who commit crime may be exempt from penalties in case where the crime commission involves many extenuating circumstances as provided by Clause 1, Article 46 of this Code, deserving special leniency, but not to the extent of penal liability exemption.