Joint Circular No. 01/TTLN-90 guiding the implementation of certain provisions of the Law amending and supplementing some articles of the Criminal Code

CIRCULAR

Jointly issued by the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Interior, and the Ministry of Justice to guide the implementation of certain provisions of the Law Amending and Supplementing Certain Articles of the Criminal Code.
In order to uniformly apply the provisions of the Law Amending and Supplementing Certain Articles of the Criminal Code adopted by the National Assembly on December 28, 1989, the Supreme People's Procuratorate, the Supreme People's Court, the Ministry of Interior, and the Ministry of Justice hereby provide guidance as follows:
1. The Law Amending and Supplementing Certain Articles of the Criminal Code was promulgated by the State Council on January 2, 1990, therefore, the provisions of this Law shall be applied to criminal acts committed from January 2, 1990 onwards.

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2. According to Clause 2, Article 7 of the Criminal Code, "a provision establishing a new crime or imposing a heavier punishment does not apply to criminal acts committed before the enactment of such provision," hence, for criminal acts committed before January 2, 1990 but tried at first instance, appeal, or cassation after January 2, 1990, the old provisions of the Criminal Code shall still be applied instead of the following new provisions of Article 2 of the Law Amending and Supplementing Certain Articles of the Criminal Code which establish new crimes or impose heavier punishments, specifically:

a. Not applying the provision at Point 1 regarding the aggravating circumstance "professional nature," that is, if there is no other aggravating circumstance, then even if the criminal act committed before January 2, 1990 has a professional nature, the offender will only be punished according to Paragraph 1 of Articles 97, 129, 131, 132, 134, 149, 151, 152, 153, 154, 155, 157, 165, 166, and 201 of the Criminal Code.

b. Not imposing fines according to the amounts specified at Point 2, that is, still only imposing fines not exceeding the maximum amounts stipulated in Articles 90, 91, 100, 126, 142, 179, 185, 215, and 218 of the old Criminal Code for criminal acts committed before January 2, 1990.

c. Not applying Article 96a of the Criminal Code concerning the crime of producing, storing, buying, selling, or transporting prohibited drugs illegally, but only applying the old Article 166 of the Criminal Code concerning the crime of trading or storing prohibited goods for acts of trading or storing prohibited drugs illegally committed before January 2, 1990.

3. The provision "the aggregate sentence shall not exceed the highest limit of the prescribed penalty" under the new Article 41 of the Criminal Code is stricter than the provision of the old Article 41 of the Criminal Code regarding the determination of penalties for multiple offenses. However, this provision is not a provision establishing a new crime or imposing a heavier punishment as provided in Clause 2, Article 7 of the Criminal Code, so it shall be applied to criminal acts committed before January 2, 1990, but tried at first instance after January 2, 1990. In cases where the case was tried at first instance before January 2, 1990, but appealed, cassated, or retried after January 2, 1990, when appealing, cassating, or retrying, the court shall not apply the new provision of Article 41 of the Criminal Code, but shall still apply the old provision of the article, that is, "the aggregate sentence shall not exceed the highest limit of the penalty range prescribed by law for the most serious offense committed and within the scope of the type of penalty already pronounced."

The provision "the aggregate sentence shall not exceed the highest limit of the prescribed penalty" under Clause 1 of the new Article 42 of the Criminal Code shall also be applied similarly to the application of the new Article 41 of the Criminal Code as mentioned above.

4. The provision "if during the probation period, the person sentenced to suspended imprisonment commits a new crime negligently and is punished with imprisonment, or commits a new crime intentionally, the court decides to enforce the original sentence and combine it with the new sentence according to Clause 2 of Article 42" under Clause 5 of the new Article 44 of the Criminal Code is stricter than the provision of Clause 5 of the old Article 44 of the Criminal Code regarding suspended sentences. However, this provision is also not a provision establishing a new crime or imposing a heavier punishment as provided in Clause 2, Article 7 of the Criminal Code, so it shall be applied to criminal acts committed before January 2, 1990, but tried at first instance after January 2, 1990, specifically: if before January 2, 1990, a person sentenced to suspended imprisonment commits a new crime during the probation period, then after January 2, 1990, when they are tried at first instance, the court shall compel them to serve the prison sentence they were granted suspended, if the new crime is intentional, or if the court punishes them with imprisonment for the new negligent crime. In cases where the case was tried at first instance before January 2, 1990, but appealed, cassated, or retried after January 2, 1990, when appealing, cassating, or retrying, the court shall not apply the new provision of Clause 5 of Article 44 of the Criminal Code, but shall still apply the old provision of the clause, that is, only when punishing the defendant for the new crime, the court shall compel them to serve the prison sentence they were granted suspended.

Article 151 on the crime of robbery of citizens' property has been amended and supplemented with three clauses corresponding to three penalty ranges, specifically:

- Clause 1: Imprisonment from three years to seven years.

- Clause 2: Imprisonment from five years to fifteen years.

- Clause 3: Imprisonment from twelve years to twenty years, life imprisonment, or death penalty.

Since the highest limit of the first penalty range is seven years of imprisonment, cases falling under Clause 1 of this article shall fall within the jurisdiction of county-level courts.

Cases falling under Clauses 2 and 3 shall fall within the jurisdiction of provincial-level courts.

Because the highest level of punishment in the first sentencing range is seven years' imprisonment, cases of offenses under Clause 1 of this Article fall within the jurisdiction of district courts.

Cases of offenses under Clauses 2 and 3 fall within the jurisdiction of provincial courts.