Chương VIII Bộ luật hình sự 2015: Quyết định hình phạt

Chapter VIII

DECISION ON SENTENCES

Section 1. GENERAL PROVISIONS

Article 50. Basis for decision on sentences

1. The Court shall issue the decision on sentences pursuant to this document and in consideration of the nature and danger of the crime to society, record of the offender, mitigating factors and aggravating factors.

2. When imposing a fine, apart from the basis specified in Clause 1 of this Article, the Court shall also consider the offender's property and ability to pay the fine.

Article 51. Mitigating factors

1. The following circumstances are considered mitigating factors:

a) The offender has prevented or reduced the harm caused by the crime;

b) The offender voluntarily makes rectification, pays damages or relieves the consequences;

c) The crime is considered unjustified force in self-defense;

d) The crime is considered unjustified force in urgent circumstance;

dd) The crime is considered unjustified force in capturing a criminal;

e) The crime is committed under provocation caused by the victim's illegal acts;

g) The crime is committed because of extreme hardship that is not on the offender's account;

h) The crime has not inflicted damage or the damage inflicted is not significant;

i) The offender commits a less serious crime and does not have prior criminal record;

k) The crime is committed because the offender threatened or coerced by others;

l) The offender commits the crime while because of lack of awareness that is not on his/her account;

m) The crime is committed due to obsolescence;

n) The offender is a pregnant woman;

o) The offender is 70 years of age or older;

p) The offender has a serious physical disability or extremely serious physical disability;

g) The offender has a disease that limits his/her awareness or control of his/her acts;

r) The offender turns himself/herself in;

s) The offender expresses cooperative attitude or contrition;

t) The offender arduously assisting the agencies concerned in discovery of crimes or investigation;

u) The offender has made reparation in an effort to atone for the crime;

v) The offender is an excellent worker, soldier or student;

x) The offender is a parent, spouse or child of a war martyr or war veteran.

2. When issuing a decision on sentences, the Court might consider the offender's turning himself/herself in or other circumstances as mitigating factors and specify the reasons in the judgment.

3. If a circumstance defined as a mitigating factor this document is the basis for determination of a crime or sentence bracket, it shall not be considered a mitigating factor in the decision on sentences.

Article 52. Aggravating factors

1. The following circumstances are considered aggravating factors:

a) Organized crime;

b) The crime is committed in a professional manner;

c) The offender abuses his/her position or power to commit the crime;

d) The crime is of a gangster-like nature;

dd) The crime is committed by despicable motives;

e) The offender is determined to commit the crime to the end;

g) The offence has been committed more than once;

h) Recidivism or dangerous recidivism;

i) The crime is committed against a person under 16 years of age, pregnant woman or a person aged 70 years or older;

k) The crime is committed against a defenseless person, a person having a serious physical disability or extremely serious physical disability, a person whose awareness is limited or a person who is financially, spiritually, professionally or otherwise dependent on the offender;

l) The offender takes advantage of war, state of emergency, natural disaster, epidemic or other tragic circumstances of society to commit the crime;

m) The offender makes use of a sophisticated, deceitful or ruthless trick to commit the crime;

n) The offender uses a trick or instrument capable of harming many people to commit the crime;

o) The offender incites a person aged under 18 to commit the crime;

p) The offender has deceitful or violent actions to conceal the crime.

2. Circumstances defined by this document as the basis for determination of a crime or sentence bracket shall not be considered an aggravating factor.

Article 53. Recidivism and dangerous recidivism

1. Recidivism is a situation in which a person who has an unspent conviction for the same offence and deliberately commits a very serious crime or involuntarily commits an extremely serious crime.

2. Dangerous recidivism is a situation in which:

a) A person who has an unspent conviction for a deliberate very serious crime or extremely serious crime deliberately commits a very serious crime or an extremely serious crime;

b) A person who repeated the same offence for which the conviction has not been expunged deliberately commits another criminal offence.

Section 2. DECISION ON SENTENCES IN PARTICULAR CASES

Article 54. Decision on a sentence below lower limit of the sentence bracket.

1. The Court may decide a sentence lighter than the lower limit of the current sentence bracket if it is in the next lighter bracket provided the offender has at least two mitigating factors specified in Clause 1 Article 51 hereof.

2. The Court may decide a sentence below the lower limit of the current sentence bracket and it is not required to belong to the next lighter bracket provided the offender is an abettor with a minor role in the offense and does not have prior criminal record.

3. If all of the conditions specified in Clause 1 or Clause 2 of this Article are satisfied but there is only one sentence bracket or the current sentence bracket is already most lenient, the Court may switch over to a lighter sentence. The reasons for imposition of a lighter sentence must be specified in the judgment.

Article 55. Decision on sentence for multiple crimes

When a person is tried for multiple crimes, the Court shall decide the sentence for each of them and combined sentence as follows:

1. Primary sentence:

a) If all of the sentences imposed are community sentence or determinate imprisonment, they shall be combined. The combined sentence shall not exceed 03 years for community sentence and 30 years for determinate imprisonment;

b) If the sentences imposed include community sentence and determinate imprisonment, community sentence shall be converted into imprisonment. 03 days' community sentence equals (=) 01 day's imprisonment.

c) If the most severe sentence among the sentences imposed is life imprisonment, the combined sentence shall be life imprisonment;

d) If the most severe sentence among the sentences imposed is death sentence, the combined sentence shall be death sentence;

dd) Fines shall be aggregated and shall not be combined with other sentences;

e) Expulsion shall not be combined with other sentences;

2. Additional sentence:

a) If all of the sentences imposed are of the same type, the combined sentence shall not exceed the limit imposed by this document; fines shall be aggregated;

b) If the sentences imposed are of various types, the convict must serve all of them.

Article 56. Combination of sentences of multiple judgments

1. If a person who is serving a sentence is tried for a crime committed before such sentence is imposed, the Court shall decide the sentence for the crime being tried and then the combined sentence as prescribed in Article 55 hereof.

The duration of the previous sentence shall be deducted from that of the combined sentence.

2. When a person who is serving a sentence is tried for a new crime, the Court shall decide the sentence for the new crime, then aggregate it with the unserved part of the sentence to make the combined sentence as prescribed in Article 55 hereof.

3. If a person is serving multiple sentences that are not combined, the executive judge of the Court shall issue a decision on a combined sentence as prescribed in Clause 1 and Clause 2 of this Article.

Article 57. Decision on sentences for preparation of crimes or unsuccessful crimes

1. A sentence for preparation of a crime or unsuccessful crime shall be decided in accordance with Articles on corresponding crimes hereof and vary according to their nature, danger to society, progress of the crime and other factors that prevent the crime from being committed to the end.

2. The sentence for preparation of a crime shall be imposed within the sentence brackets in particular provisions of law.

3. The maximum sentence for the unsuccessful crime shall be 20 years if the maximum sentence provided for by corresponding provision of law is life imprisonment or death sentence. The maximum sentence for an unsuccessful crime shall not exceed three quarters of the determinate imprisonment sentence provided for by the corresponding provision of law.

Article 58. Decision on sentence for complicacy

When imposing sentences upon accomplices, the Court must consider the nature of complicacy and the degree of participation of each accomplice.

Mitigating factors, aggravating factors or from criminal responsibility of an accomplice shall only apply to that accomplice.

Article 59. Exemption from punishment

The offender might be exempt from punishment in the circumstances specified in Clause 1 and Clause 2 Article 54 hereof, provided he/she deserves the leniency but not to a degree eligible for exemption from criminal responsibility.