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CRIMINAL LAW AND CRIMINOLOGY; CRIMINAL-EXECUTIVE LAW
THEORY OF DAMAGE CAUSED BY CRIME IN VIETNAMESE LAW
Nguyen Phuong Anh
PhD, Lecturer, Faculty of Law, People's Police Academy,
Vietnam, Hanoi E-mail: [email protected]
Nguyen Quoc Phu
PhD,
Officer Department of Training Management and Title Development,
People's Police Academy, Vietnam, Hanoi
ТЕОРИЯ ВРЕДА, ПРИЧИНЕННОГО ПРЕСТУПЛЕНИЕМ В УГОЛОВНОМ ПРАВЕ ВЬЕТНАМА
Нгуен Фыонг Ань
канд. юрид. наук., преподаватель юридического факультета
Народной полицейской академии, Вьетнам, г. Ханой
Нгуен Куок Фу
канд. юрид. наук., сотрудник, Кафедра управления подготовкой кадров и развития титулов,
Народная полицейская академия, Вьетнам, г. Ханой
ABSTRACT
Damage caused by crime is a type of damage caused by a violation of criminal law (crime). Assessing the nature and extent of damage as well as identifying the subject of damage is important in resolving criminal cases and remedying damage. However, there are still different opinions on understanding what is damage caused by crime, so in this article the authors have raised some theoretical issues about damage caused by crime.
АННОТАЦИЯ
Вред, причиненный преступлением, является разновидностью ущерба, причиненного нарушением уголовного права (преступлением). Оценка характера и размера ущерба, а также определение субъекта ущерба важны для разрешения уголовных дел и возмещения ущерба. Однако все еще существуют разные мнения о понимании того, что является ущербом, причиненным преступлением, поэтому в этой статье авторы подняли некоторые теоретические вопросы об ущербе, причиненном преступлением.
Keywords: Damage, crime, physical damage, mental damage, significant.
Ключевые слова: ущерб, преступление, физический ущерб, моральный ущерб, значительный.
Damage is the loss and serious damage to people and property. In fact, damage to people and society has many causes with diverse contents and nature. Damage is not only in the life, health of people and property of the violated person but also in the long-term difficulties and instability for society. From a legal perspective, damage is also considered and evaluated in many causes in many branches of law with the purpose of determining the responsibility of the subject causing the damage, the way to remedy and compensate for the damage. That is the damage caused
by the acts of those who violate administrative law, violate civil law, violate criminal law... Damage caused by crime is a type of damage caused by acts that violate criminal law (crime). Assessing the nature and extent of damage as well as identifying the damaged subject is important in resolving criminal cases and remedying the damage. However, there are still different opinions on understanding what is damage caused by crime, so it needs to be clarified theoretically.
Библиографическое описание: Nguyen P.A., Nguyen Q.P. THEORY OF DAMAGE CAUSED BY CRIME IN VIETNAMESE LAW // Universum: экономика и юриспруденция : электрон. научн. журн. 2025. 3(125). URL:
https://7universum.com/ru/economy/archive/item/1943 7
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In the authors opinion, the damage caused by crime has the following contents and characteristics:
First, the damage caused by crime includes physical, mental, property damage and the state of disorder, social security, and legal order. In general, the damage caused by crime exists in two forms: material and immaterial. Damage in the form of material (exist objectively in the material world) includes physical damage and property damage. Damage in the form of spirit (exist in the spiritual world such as consciousness, emotions, reputation, etc.).
• Physical damage is reflected in the damage to life and health caused by crime, this damage is only associated with natural humans. For example, the damage to life caused by murder, the damage to health caused by intentional injury. This damage is quantified by specific numbers of deaths, disability rates, and levels of health damage. Physical damage is manifested in the change of the normal state of the natural entity of a person.
• Mental damage is manifested in the emotional damage of the victim or relatives caused by the crime (sadness, suffering); reputation, honor, dignity are violated by the crime due to slander, rape, humiliation... Mental damage is difficult to quantify by specific numbers and cannot be valued in money according to the principle of equal value. Mental damage is a form of non-material consequence, so people can only perceive it through thinking. However, Vietnamese civil law has provisions on compensation for mental damage with the purpose of comforting and encouraging people who have suffered mental damage, as well as an educational measure to prevent people from committing illegal acts. Therefore, mental damage is also taken into account in the process of resolving the case. Spiritual damage can also be broadly understood in other nonmaterial damages such as violations of citizens' freedoms and democracy.
The traditional concept considers that spiritual damage often occurs to individuals, such as emotional damage, honor, and dignity. Nowadays, the subjects of social relations are increasingly expanded and established by legal entities, existing independently of individuals, including organizations without legal status. In social relations, an organization is also at risk of damage not only in material aspects but also in spiritual and reputational aspects. Therefore, spiritual damage to organizations is also defined by Vietnamese law as honor, reputation being violated, reduced or loss of trust, confidence... due to misunderstanding. Property damage is expressed in money, property rights (for example, the right to receive child support) or valuables converted into money that are lost, destroyed, damaged, the value of property is reduced, lost income, costs incurred to prevent, remedy, repair, handle consequences... For example, property damage caused by theft of property, medical expenses for treating injuries caused by intentional acts of causing injury... Property damage can be converted and quantified into money. Property damage caused by crime can include indirect damages (having a causal relationship with the crime) such as medical expenses for treating injuries caused by intentional acts of causing injury, the ability to make a profit from destroyed or damaged property...
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In addition, in science, the content of damage caused by crime is understood in a broad and abstract sense as "the legal order prescribed by the state" that any crime is capable of causing damage. It can also be understood as social order, national security and other common interests that are violated by crime. This is also a form of non-material damage but cannot be classified as spiritual damage, because spiritual damage (such as feelings, honor, reputation violated by crime) must belong to a specific individual or organization.
Thus, the damage caused by crime includes many types: physical damage, mental damage, property damage. In addition, there are other damages such as social order, legal order, etc. The combination of these damages leaves behind the material (people, property) and non-material (mental, social order, legal order) consequences of crime. These types of damage are also infringed by other illegal acts, however, the scope of content and level of damage may be different. For example, a breach of contract (breach of contractual obligations - a type of civil law violation) causes property damage; an intentional act of causing injury that is not serious enough to be prosecuted for criminal liability (an administrative law violation) also causes physical damage; an act of insulting the dignity and honor of another person that is not serious enough to cause mental damage... But if the physical damage is life, the damage caused by the illegal act plays a role in the cause of being considered a crime. The issue of recognizing the type of damage caused by a crime is important in fully assessing the content of the damage, the people who suffered the damage and resolving compensation for damage in the criminal procedure.
Second, the damage caused by crime is "significant" to the social relations that are violated by crime. When discussing the consequences of crime, scientists believe that it is "a certain and significant specific damage caused by criminal acts to the interests protected by criminal law". It is the significant damage caused by crime that contributes to the high danger to society of crime and "is the basis for distinguishing criminal acts from other violations".
Normally, the damage caused by crime is more serious than the damage caused by other illegal acts. There are acts that, when performed, reveal a high danger to society without needing to be based on the level of damage. If this act has caused damage, it is certain that it is significant damage or the act causes damage that is difficult to determine. In criminal law science, these crimes are often considered to have a formal structure, for example, the crime of robbery, the crime of illegal arrest, detention, and imprisonment. However, there are many dangerous acts that are fully expressed in the act and the damage (consequences). The crime is only considered complete when damage occurs.
Criminal law science often considers these crimes to have a material element. For crimes with a material element, the level of damage is also the basis for distinguishing a criminal act from an act that violates administrative or civil law, because the level of damage caused by the crime is considered more serious. For example, in normal cases, the damage caused by an act of intentionally causing injury or harm to the health
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of another person is 11% or more, then that act is considered a crime. That means if the injury or damage to health is less than 11% (less serious) without other accompanying conditions, this act is not considered a crime. Or in normal cases, if an act of destroying or intentionally damaging another person's property causes damage of two million VND or more, then this act is considered a crime, if the damage is smaller without accompanying conditions, it is not considered a crime. It should also be noted that a crime can cause or threaten to cause one or more damages, of which at least one is significant and may be accompanied by other minor damages. The total damage caused by a crime is always significant. The perception of the level of damage caused by a crime is significant for assessing the dangerous consequences for society of the crime in a criminal case, and at the same time distinguishing it from the damage caused by other illegal acts.
Third, the damage caused by a crime has a causal relationship with the crime. If the damage is considered the result, the crime is the cause. According to the causal pair of materialist dialectics, the crime comes before the damage and that damage is the inevitable consequence of the crime. Crime plays a causal role in causing not only direct damage but also indirect damage. The direct damage of a crime is determined to be the object of the crime, directly caused by the crime itself. For example, the crime of murder has a direct damage which is the life (death) of the victim. Indirect damage is damage that is not the object of the crime but has a causal relationship with the crime. Because, in the same conditions and circumstances, any person who depends on the victim will also lose the source of support (damage) as an inevitable consequence. That damage is completely different from the damage for which the crime does not play the role of an inevitable cause. For example, a person kills a victim, the victim's relative is strongly emotional, has a sudden increase in blood pressure and dies afterwards. The loss of life of the victim's relative in this case is not part of the inevitable causal relationship. Because, in the same circumstances, not everyone has a sudden increase in blood pressure leading to death. It is a chain causal relationship determined through two direct causal relationships. In which, the direct causal relationship is between the first illegal act and the second illegal act; the direct causal relationship is between the second illegal act and the dangerous consequences for society. The indirect causal relationship is determined as the relationship between the first illegal act (crime) and the consequences of the crime.
The offender is not responsible for the damage caused to the victim's relatives in that case because the decisive cause is not the crime. In reality, there are many cases of indirect damage but it is not considered an inevitable consequence of the crime and does not fall under the category of damage caused by the crime. For example, a person loses the opportunity to find a job,
References: 1. 2. 3.
loses the opportunity to study well, loses the opportunity to advance, family happiness is broken, relatives get sick... due to being involved in a crime that has occurred before. In the second case, there is another type of damage that is also considered indirect damage but has a different formation mechanism than the indirect damage above, has a causal relationship with the crime but is not the consequence of a direct damage that has occurred before. That is a damage that is derivative and is not the purpose of the crime when the crime intentionally causes another direct damage. In other words, this type of indirect damage occurs simultaneously with direct damage and also satisfies the condition that it is not the subject of a crime. This derivative damage is not enough to be the basis for criminal prosecution for a crime independent of the crime committed.
Second, if a damage occurs before a crime is committed, it is not considered a damage caused by a crime. That is, only damage that occurs after a crime is committed can be assumed to be caused by a crime. However, it is not true that when two phenomena appear consecutively in time, the phenomenon that occurs first is the cause of the phenomenon that occurs later, but there must be a causal relationship between them. In reality, there are many events and behaviors that occur before a damage occurs but are not the cause of that damage. This may be due to a random coincidence of time, so it is easy to misunderstand the cause of the damage. Therefore, through the analysis of causal relationships, it is possible to correctly perceive which damages are produced by crimes. For example, a doctor injects a patient with medicine, then the patient dies for another reason unrelated to the medicine used by the doctor. Without an examination of the cause of death to find the causal relationship, it is very possible to mistakenly perceive that the patient died due to the doctor's injection of the drug.
Third, through the causal relationship with its various forms, it is possible to determine which damage is the result of the crime and the level of "contribution" of the criminal act to the mechanism of causing damage, thereby determining the procedural status of the person suffering the damage and having a reasonable method of resolving the responsibility for the person causing the damage. Crimes not only cause direct damage but can also cause indirect damage. Indirect damage occurs together with direct damage and often accompanies direct damage. Direct damage and indirect damage both fall under the category of damage caused by crime in criminal cases, and are resolved together with the resolution of the criminal case.
Thus, the damage caused by crime is physical, mental, property damage and disorder, social security, and legal order. These are significant damages to social relations violated by crime. Damage caused by crime includes direct damage and indirect damage.
National Assembly (2013), Constitution of the Socialist Republic of Vietnam;
National Assembly (2015), Criminal Procedure Code 2015, amended and supplemented in 2021, Hanoi; National Assembly (2015), Penal Code 2015, amended and supplemented in 2017, Hanoi.
