Joint Circular No. 01/2001/TTLT-BTP-BCA-TANDTC-VKSNDTC on guiding the application of provisions in Chapter XV "Crimes Violating the Marriage and Family System" of the 1999 Criminal Code

JOINT CIRCULAR

REGARDING GUIDANCE ON THE APPLICATION OF PROVISIONS IN CHAPTER XV "CRIMES VIOLATING THE MARRIAGE AND FAMILY REGIME"

OF THE CRIMINAL CODE 1999

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To ensure correct and uniform application of the provisions in Chapter XV "Crimes Violating the Marriage and Family Regime" of the Criminal Code 1999 (hereinafter referred to as the "Criminal Code"), the Ministry of Justice, the Ministry of Public Security, the Supreme People's Court, and the Supreme People's Procuracy have reached the following guidance on certain points:

1. Regarding the circumstance "having been administratively punished for this act but still committing it"

For the crimes of "forcing marriage or obstructing voluntary, progressive marriage" (Article 146 of the Criminal Code); "violating the monogamy regime" (Article 147 of the Criminal Code); organizing child marriage, the crime of child marriage" (Article 148 of the Criminal Code); "abusing or maltreating grandparents, parents, spouse, children, grandchildren, or persons who have raised oneself" (Article 151 of the Criminal Code); "refusing or evading alimony obligations" (Article 152 of the Criminal Code), the Criminal Code stipulates the circumstance "having been administratively punished for this act but still committing it" within the elements of the crime; therefore, attention should be paid:

It shall be considered as "having been administratively punished for this act but still committing it" if before that, a person has been administratively punished for one of the acts listed in one of the above articles, but has not yet exceeded the period to be considered as not having been administratively punished according to the law on administrative violations, and then:

a) Committing the same act. For example, before A was administratively punished for forcing marriage, and has not yet exceeded the period to be considered as not having been administratively punished, commits the act of forcing marriage again; before B was administratively punished for organizing child marriage, and has not yet exceeded the period to be considered as not having been administratively punished, commits the act of organizing child marriage again; etc...

b) Committing one of the acts listed in the corresponding article. For example, before A was administratively punished for forcing marriage, and has not yet exceeded the period to be considered as not having been administratively punished, commits the act of obstructing voluntary, progressive marriage; before B was administratively punished for abusing wife and children, and has not yet exceeded the period to be considered as not having been administratively punished, commits the act of abusing parents; etc..

The period to be considered as not having been administratively punished is the period prescribed by the law on administrative penalties. According to Article 10 of the Law on Handling Administrative Violations 1995, individuals or organizations that have been administratively punished, if more than one year has passed since the date of completion of the administrative penalty decision or from the date when the time limit for enforcement of the administrative penalty decision has expired without reoffending, shall be considered as not having been administratively punished.

2. Regarding the crime of forcing marriage or obstructing voluntary, progressive marriage (Article 146 of the Criminal Code)

2.1. Forcing marriage means using all kinds of means to compel others (male party, female party, or both parties) to marry against their will.

Obstructing voluntary, progressive marriage means using all kinds of means to prevent people who meet the legal conditions for marriage from marrying or hindering others from maintaining a voluntary, progressive marital relationship or compelling them to terminate such a relationship.

The act of forcing marriage or obstructing voluntary, progressive marriage can be carried out through various means such as abuse, maltreatment, mental coercion, demanding property, or other means.

a) Abuse, maltreatment means treating others cruelly and badly causing prolonged physical or mental suffering, such as: frequently beating (without necessarily causing injury), confining, withholding food and drink, exposing to cold, insulting, humiliating, etc., with the aim of forcing marriage or obstructing voluntary, progressive marriage. It should be noted that the act of abuse, maltreatment is a means of the crime of forcing marriage or obstructing voluntary, progressive marriage, so there is no additional criminal responsibility for the crime of abuse, maltreatment under Articles 110 or 151 of the Criminal Code.

b) Mental coercion means threatening to cause damage to life, health, reputation, property, or vital interests of the person being threatened, making that person truly fear and submit, such as threatening to burn down the house, kill relatives, disclose private secrets of the person being threatened, parents, or family members threatening suicide if the male and female parties marry, children threatening to leave home or commit suicide if their parents remarry, etc..

c) Demanding property means making unreasonable demands for property and considering it one of the conditions for marriage to hinder the voluntary marriage between a male and female party.

d) Other means may include forcing one or both parties to go far away to separate them; kidnapping someone who does not want to marry to force them to marry against their will; a family member arranging marriages for their relatives with others against their will to separate them from the person they wish to marry voluntarily; etc.

2.2. Criminal responsibility can only be pursued for this crime when the violator has been administratively punished for this act but still commits it.

2.3. The subject of this crime can be any person with criminal responsibility capacity. Typically, the subject of this crime is the male or female party wishing to marry; a person with significant influence in the family of the male or female party (such as grandparents, parents, siblings, etc.); a person directly influencing the male or female party (such as former wives, husbands, children after divorce, former lovers, etc.);.; a person with influence in work (such as superiors towards subordinates) or in religious beliefs (such as religious officials towards followers).

3. Regarding the crime of violating the monogamy regime (Article 147 of the Criminal Code)

3.1. Cohabitation as husband and wife means that a person who already has a spouse lives with another person, or a person who does not have a spouse lives with someone they know to be married to another person, either publicly or privately, but shares household activities as a family unit. Cohabitation as husband and wife is typically proven by having children together, being recognized as a couple by neighbors and surrounding society, or having joint property which remains despite family, workplace, or community organizations' education efforts to stop such relationships....

3.2. Criminal responsibility for this offense may only be pursued in one of the following cases:

a) The violation of the monogamy system causing serious consequences.

Serious consequences include the breakdown of one or both families leading to divorce, suicide by the spouse or child due to such circumstances, etc....

b) The violator of the monogamy system has been administratively punished for this act and continues to violate it.

3.3. In cases where a court decision has annulled the marriage or ordered the termination of cohabitation as husband and wife contrary to the monogamy system, but the relationship is still maintained, the offender will be criminally prosecuted for violating the monogamy system under Clause 2, Article 147 of the Penal Code without being additionally prosecuted for failing to comply with the court's judgment under Article 304 of the Penal Code.

4. Regarding the crime of organizing child marriage and the crime of child marriage (Article 148 of the Penal Code)

4.1. Child marriage refers to the act of marrying when one or both parties have not reached the legal age for marriage as stipulated by the Marriage and Family Law.

4.2. Organizing child marriage involves arranging for those who have not reached the legal age for marriage as stipulated by the Marriage and Family Law to marry. The organizer knows or has grounds to know that one or both of the persons they are arranging to marry have not reached the legal age for marriage.. If the organizer genuinely does not know about this or is mistaken about the age, they will not be criminally prosecuted for this offense.

4.3. Criminal responsibility for the crime of organizing child marriage can only be pursued if the violator has been administratively punished for this act and continues to violate it.

4.4. Criminal responsibility for the crime of child marriage can only be pursued if all of the following conditions are met:

a) The violator intentionally maintains an illegal marital relationship with a person who has not reached the legal age for marriage;

b) There is a court decision ordering the termination of such relationship;

c) The violator has been administratively punished for this act and continues to violate it.

4.5. The subject of the crime of organizing child marriage is anyone capable of criminal responsibility, but usually includes grandparents, parents, siblings, or close relatives of the male or female party.

The subject of the crime of child marriage is anyone capable of criminal responsibility who has reached the legal age for marriage as stipulated by the Marriage and Family Law. According to Article 9 of the 2000 Marriage and Family Law, the legal age for marriage for males is 20 years old or older, and for females is 18 years old or older.

5. Regarding the crime of registering marriage illegally (Article 149 of the Penal Code)

5.1. Registering marriage illegally means that a person responsible for registering marriages confirms the marriage event (records it in the marriage registration book and issues a marriage certificate) for individuals known to not meet the conditions for marriage as specified in Clauses 1 and 2 of Article 9 or fall within the prohibited categories of marriage as specified in Article 10 of the 2000 Marriage and Family Law.

5.2. Criminal responsibility for the crime of registering marriage illegally can only be pursued if the violator has been disciplined for this act but the disciplinary period has not yet expired and the violation continues.

According to Clause 2 of Article 6 of Decree No. 97/1998/ND-CP dated November 17, 1998 of the Government on disciplinary measures and material liability for civil servants, the duration of disciplinary measures for civil servants is 12 months from the date the disciplinary decision takes effect. A civil servant is considered to have had their disciplinary record cleared if, within 12 months from the date of the disciplinary decision, they do not reoffend and do not commit violations warranting disciplinary action, and the competent authority issues a decision terminating the disciplinary effect. However, to ensure the rights of those disciplined, they are also considered to have had their disciplinary record cleared if, within 12 months from the date of the disciplinary decision, they do not reoffend and do not commit violations warranting disciplinary action, even if the competent authority has not issued a decision terminating the disciplinary effect.

For judicial officers at commune, ward, town level, since the law does not specify a clearance period, the duration of disciplinary measures is also calculated as 12 months from the date the Chairman of the People's Committee of the commune, ward, or town issues the disciplinary decision.

It should be noted that criminal responsibility for this offense can only be pursued for cases "having been disciplined for this act and continuing to violate" from July 1, 2000 onwards, i.e., the effective date of the Penal Code.

5.3. The subject of this offense is a person responsible for registering marriages, specifically:

a) A representative of the government authority or a representative of the diplomatic agency or consulate of Vietnam abroad authorized to sign the marriage certificate;

b) Civil registry officials handling marriage registration procedures at the commune, ward, town People's Committee or officials of the Department of Justice for cases involving foreign elements;

c) Officials handling marriage registration procedures at diplomatic agencies and consulates of Vietnam abroad.

6. Regarding the crime of incest (Article 150 of the Penal Code)

6.1. Incest refers to sexual intercourse between parent and child; grandparent and grandchild; siblings with the same father and mother; siblings with the same father but different mothers or the same mother but different fathers.

6.2. To pursue criminal responsibility for the crime of incest, it must be clearly established that the sexual intercourse was consensual, without signs of violence or coercion, and was conducted with a person aged 16 or older. In cases where the sexual intercourse between the aforementioned parties is consensual, but is conducted with a child aged 13 or older but under 16, criminal responsibility for the crime of incest shall not be pursued, but criminal responsibility for the crime of sexual intercourse with a minor (point c, Clause 2, Article 115 of the Penal Code) shall be pursued.

In cases where acts of incest are accompanied by signs of using violence, threatening to use violence, taking advantage of the victim's inability to defend themselves, or other means, the person committing such acts shall be held criminally responsible for the crime of rape (point e, Clause 2, Article 111 of the Penal Code) or the crime of raping a child (point a, Clause 2, Article 112 of the Penal Code); if the act of incest is accompanied by signs of taking advantage of a dependent relationship that forces the other party to engage in sexual intercourse, the person committing such acts shall be held criminally responsible for the crime of coercive sexual assault (point d, Clause 2, Article 113 of the Penal Code) or the crime of coercively sexually assaulting a child (point a, Clause 2, Article 114 of the Penal Code); in all cases where acts of incest are committed against children under 13 years old, the person committing such acts shall be held criminally responsible for the crime of raping a child (point a, Clause 2, Article 112 of the Penal Code).

7. Regarding the crime of abuse and maltreatment of grandparents, parents, spouse, children, grandchildren, and persons who have raised oneself (Article 151 of the Penal Code)

7.1. The term "abuse and maltreatment" generally refers to poor treatment regarding food, clothing, shelter, and daily living conditions towards relatives, such as insulting, forcing to go without food or drink, making them endure cold, wearing torn clothes in an abnormal manner, or violent acts that harm the body of the victim, such as beating, confining, etc., causing the victim physical and mental pain.

7.2. Criminal responsibility for this crime can only be pursued in one of the following situations:

a) Acts of abuse and maltreatment causing serious consequences, meaning that the person being abused and maltreated is constantly tormented emotionally, suffers damage to their reputation, mental suffering, or bodily injury, impairment to health. The consequence of bodily injury or impairment to health is due to negligence; if it leads to death, criminal responsibility will be pursued for the crime of negligent homicide (Article 98 of the Penal Code).

In cases where bodily injury, impairment to health, or death occurs due to intentional fault, depending on the specific circumstances, criminal responsibility will be pursued according to the corresponding clauses of Article 104 of the Penal Code concerning the crime of intentionally causing bodily injury or impairing the health of another person, or Article 93 of the Penal Code concerning the crime of murder; if the victim is driven to suicide due to frustration, criminal responsibility may be pursued for the crime of compelling suicide under Article 100 of the Penal Code.

b) The person committing the act of abuse and maltreatment has been administratively punished for this act but still violates it.

7.3. The objects of harm specified in Article 151 of the Penal Code include:

a) Grandparents, including maternal and paternal grandparents;

b) Parents, including biological parents, adoptive parents, stepfather, stepmother;

c) Spouse as defined by marriage and family laws;

d) Children, including biological children (both within and outside wedlock), adopted children, son-in-law, daughter-in-law, stepchildren of the wife or husband;

đ) Grandchildren, including grandsons and granddaughters;

e) Persons who have raised oneself, including siblings, aunts, uncles, cousins, or others who have raised or are currently raising the person committing the act of abuse and maltreatment.

It should be noted that only cases of maltreatment and abuse of the above-mentioned objects will be pursued for criminal responsibility for this crime; if the act of maltreatment and abuse is committed against persons not included in the above-mentioned objects, criminal responsibility will be pursued for the crime of maltreating another person under Article 110 of the Penal Code; if the act of maltreatment and abuse is a means of committing the crime of forced marriage or hindering a voluntary, progressive marriage, criminal responsibility will be pursued for the crime of forced marriage or hindering a voluntary, progressive marriage under Article 146 of the Penal Code. 8. Regarding the crime of refusing or evading the duty to provide maintenance (Article 152 of the Penal Code)

The duty to provide maintenance is the obligation of a person to contribute money or property to meet the essential needs of a person with marital, bloodline, or foster relationships as stipulated by marriage and family laws. According to Articles from 50 to 60 of Chapter VI of the Marriage and Family Law of 2000, the duty to provide maintenance is carried out between:

8.1. a) Husband and wife;

b) Father, mother, and child;

c) Maternal and paternal grandparents and grandchildren;

d) Brothers and sisters.

8.2. The actual ability to fulfill the duty to provide maintenance is when the person obligated to provide maintenance has money, property, or income capable of ensuring the average standard of living for the family in the locality.

8.3. Acts of evading or refusing the duty to provide maintenance are usually manifested by refusing to contribute money or property for maintenance despite having the actual ability to fulfill this obligation.

8.4. Criminal responsibility for the crime of refusing or evading the duty to provide maintenance can only be pursued when the following signs are present:

a) The violator must be a person obligated to provide maintenance as stipulated by the Marriage and Family Law;

b) The violator refuses or evades the duty to provide maintenance;

c) The refusal or evasion of the duty to provide maintenance causes serious consequences (meaning that the person receiving maintenance falls into a situation endangering life or health, such as illness, disease, etc.). If there are no serious consequences, the violator must have been administratively punished for this act but still violates it.

8.5. During the investigation, prosecution, and trial of this offense, it should be noted that if there is a court judgment or decision ordering the person obligated to provide maintenance to fulfill their obligations, but they deliberately fail to comply despite the application of necessary enforcement measures, criminal responsibility will be pursued under Article 304 of the Penal Code concerning the crime of failing to comply with a judgment.

9. Effectiveness of the Circular

This Circular takes effect from October 10, 2001.

During implementation, if there are any difficulties or issues requiring further explanation or supplementary guidance, please report to the Ministry of Justice, Ministry of Public Security, Supreme People's Court, and Supreme People's Procuratorate for timely explanation or supplementary guidance.

Pham Si Chien