THE
MINISTRY OF JUSTICE - THE MINISTRY OF PUBLIC SECURITY - THE SUPREME PEOPLE'S
COURT - THE SUPREME PEOPLE'S PROCURACY
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No:
01/2001/TTLT/BTP-BCA-TANDTC-VKSNDTC
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Hanoi,
September 25, 2001
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JOINT CIRCULAR
GUIDING THE APPLICATION OF THE PROVISIONS IN CHAPTER XV
"CRIMES OF INFRINGING UPON THE MARRIAGE AND FAMILY REGIMES" OF THE
1999 PENAL CODE
In order to correctly and uniformly apply the
provisions in Chapter XV "Crimes of infringing upon the marriage and
family regimes" of the 1999 Penal Code (hereinafter abbreviated to PC),
the Ministry of Justice, the Ministry of Public Security, the Supreme People’s
Court and the Supreme People’s Procuracy hereby jointly guide a number of
points as follows:
1. Regarding the detail
"have already been administratively sanctioned for such acts but repeat
their violations"
For the crimes: "Forcible marriage or prevention
of voluntary and progressive marriage" (Article 146 of the PC);
"Bigamy" (Article 147, the PC); "Organizing underage marriage,
entering into underage marriage" (Article 148, the PC); "Ill-treating
or persecuting grand-parents, parents, spouses, children, grand-children and/or
fosterers" (Article 151, the PC); "Refusing or evading the obligation
to provide financial support" (Article 152, the PC), the PC has prescribed
the detail "have already been administratively sanctioned for such acts
but repeat their violations" in the constitution of crimes; therefore,
attention should be paid to:
Being considered "have already been
administratively sanctioned for such acts but repeat their violations," if
earlier a person had already been administratively sanctioned for one of the
acts listed in the above-mentioned articles, has not yet finished the time
limit for being regarded as having never before been administratively
sanctioned according to the law provisions on handling of administrative
violations, but:
a) Commits such act. Example: Earlier, A had
been administratively sanctioned for the act of forcible marriage, has not yet
finished the time limit for being regarded as having never before been
administratively sanctioned but re-committed the act of forcible marriage;
earlier, B had been administratively sanctioned for the act of organizing
underage marriage, has not yet finished the time limit for being regarded as
having never been administratively sanctioned, but re-committed the act of
organizing underage marriage; etc.
b) Commits one of the acts listed in such
corresponding article. Example: Earlier, A had been administratively sanctioned
for the act of forcible marriage, has not yet finished the time limit for being
regarded as having never been administratively sanctioned, but committed the
act of preventing voluntary and progressive marriage; earlier, B had been
administratively sanctioned for the act of ill-treating his wife, children, has
not yet finished the time limit for being regarded as having never been
administratively sanctioned, but re-committed the act of ill-treating his
father, mother; etc.
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2. Regarding the crime of
forcible marriage or prevention of voluntary and progressive marriage (Article
146, the PC)
2.1. Forcible marriage means employing all means
to force other persons (the male, the female or both) into marriage against
their own will.
Prevention of voluntary and progressive marriage
means employing all means to prevent the marriage of persons eligible for
marriage as provided for by law or committing an act of preventing other
persons from maintaining voluntary and progressive marriage or forcing them to
break off such marriage bonds.
Acts of forcible marriage, prevention of
voluntary and progressive marriage are committed through various means such as
persecution, ill-treatment, mental intimidation, property claim or other means.
a) Persecution, ill-treatment means cruel, ill
treatment of other persons, thus causing prolonged physical or spiritual pains,
such as frequent beating (possibly not causing injuries), detention, forcing
them to abstain from eating and drinking, forcing them to stand the cold,
scolding, humiliation, etc. in order to force the marriage or prevent voluntary
and progressive marriage. It should be noted that acts of persecution and
ill-treatment are means of forcible marriage or prevention of voluntary and
progressive marriage, hence, no further penal liability examination shall be
conducted against the crimes of persecution and ill-treatment prescribed in
Article 110 or Article 151 of the PC.
b) Mental intimidation means threatening to harm
the lives, health, honor, property or legitimate interests of the intimidated
persons, making them to have grounds to really scare, hence have to subdue,
such as the threat to set on fire houses, kill relatives, disclose personal lives
of the intimidated persons, parents or family members, threaten to commit
suicide if the couple marry each other, children threaten to abandon their
houses or commit suicide if their fathers or mothers remarry, etc.
c) Property claim means an excessive and
unconcessionible claim of property, which is considered one of the conditions
for marriage in order to prevent voluntary marriage between a male and a
female.
d) Other means may be the forcible departure of
one or both parties in order to separate them; the kidnap of the person who
does not want to marry the kidnapper in order to force her/him into marriage
against her/his own will; the marriage of a person to another person by his/her
family against the former’s will in order to separate the former from the
person she/he wishes to marry voluntarily; etc.
2.2. The penal liability examination can only be
effected against this crime when the offender has already been administratively
sanctioned for such act but repeats the violation.
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3. Regarding bigamy (Article
147, the PC)
3.1. Living together like husband or wife means
any married person lives with another person or any unmarried person lives with
another person who he/she knows to be a married person openly or secretly but
like a family. The cohabitation like husband and wife is often proved by common
child (children) and the couple are considered by neighbors and the society as
husband and wife, having common property, who have been educated by their
families, offices and organizations but continue maintaining such relationship…
3.2. The penal liability examination can only be
effected against this crime in one of the following cases:
a) The bigamous act causes serious consequences
which may break up the family of one or both parties, thus leading to divorce,
hence suicide by the husband, wife or child, etc.
b) The bigamist had already been
administratively sanctioned for such act but repeated the violation.
3.3. In cases where the court has decided to
dissolve the marriage or force the termination of co-habitation like husband
and wife contrary to the monogamy but a couple continues to maintain such
relationship, the offenders shall be examined for penal liability for bigamy
according to Clause 2, Article 147 of the PC without being examined for
additional penal liability for the failure to execute the judgment according to
Article 304 of the PC.
4. Regarding the crime of
organizing underage marriage, entering into underage marriage (Article 148, the
PC)
4.1. Underage marriage means marrying a wife or
husband when either or both parties have not yet reached the marital ages
prescribed by the marriage and family legislation.
4.2. Organizing underage marriage means
organizing the marriage for persons who have not yet reached the marital ages
as prescribed by the marriage and family legislation. The underage marriage
organizers clearly know or have grounds to know clearly that either or both
persons who they organize the marriage for has (have) not yet reached the
prescribed marital age(s). In cases where the organizers do not really know
this or get confused about the age bracket, they shall not be examined for
penal liability for this crime.
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4.4. The penal liability examination for
underage marriage can be effected only when there appear the following signs:
a) The offenders deliberately maintain the
illegal husband-wife relationship with persons who have not reached the marital
ages;
b) The court has issued a decision to force the
termination of such relationship;
c) The offenders had already been administratively
sanctioned for such act but repeated the violation.
4.5. The subjects of the crime of organizing
underage marriage may be any persons having the penal liability capacity, but
usually grandfathers, grandmothers, fathers, mothers, brothers, sisters or
relatives of the male, the female.
The subjects of underage marriage may be any
persons having the penal liability capacity and having already reached the
marital ages under the marriage and family legislation. According to Article 9
of the 2000 Marriage and Family Law, the marital age for men is 20 or older,
the marital age for women is 18 or older.
5. Regarding the crime of
registering illegal marriage (Article 149, the PC)
5.1. Registering illegal marriage means that
persons responsible for marriage registration certify the marriage (recording
in the marriage register and granting the marriage certificates) for the
persons who they know are not eligible for marriage according to the provisions
in Clauses 1 and 2 of Article 9 or who fall under one of the cases banned from
marriage as provided for in Article 10 of the 2000 Marriage and Family Law.
5.2. The offenders shall be examined for penal
liability for the crime of registering illegal marriage only when they had
already been disciplined for this act and the time limit for wiping out their
discipline has not yet expired but they repeat the violation.
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For judicial officials of communes, wards or
district towns, as the time limit for wiping out the discipline has not yet
been prescribed by law, the effective discipline duration shall also be 12
months counting from the date the presidents of the commune, ward or district
town People’s Committees issue the discipline decisions.
It should be noted that only cases of
"having been already disciplined for this act but repeating the
violation" recorded as from July 1, 2000 onward, namely the effective date
of the PC, can be examined for penal liability for this crime.
5.3. The subjects of this crime may be persons
responsible for marriage registration, concretely:
a) Representatives of the administration or
representatives of our country’s overseas diplomatic missions or consulates,
who are competent to sign the marriage certificates;
b) Civil status officials who carry out
procedures for marriage registration at the commune, ward, district town
People’s Committees or officials of the provincial/municipal Justice Services
for cases of registering marriage involving foreign elements;
c) Officials carrying out the procedures for
marriage registration in Vietnam’s overseas diplomatic missions or consulates.
6. Regarding incest (Article
150, the PC)
6.1. Incest means the sexual intercourse between
fathers or mothers and children; between grandfathers or grandmothers and
paternal or maternal grandchildren; between siblings of the same parents;
between half-brothers and half-sisters.
6.2. To examine penal liability for incest, it
is necessary to clearly determine acts of voluntary sexual intercourse without
any signs of violence or coercion and with persons aged full 16 or older. Where
the act of sexual intercourse between the above-mentioned persons is voluntary,
but committed with children aged between full 13 and under 16, the penal
liability shall not be examined for incest but for sexual intercourse with
children (Point c, Clause 2, Article 115, the PC).
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7. Regarding the crime of
ill-treating or persecuting grandparents, parents, spouses, children,
grandchildren and/or fosterers (Article 151, the PC)
7.1. Acts of ill-treatment, persecution are
usually understood as the maltreatment in terms of food, clothing,
accommodation in daily-life activities against relatives, such as scolding,
forcible abstention from eating, drinking, forcible stand of coldness, worn-out
clothing in abnormal ways or acts of violence against victims, such as beating,
detention,… thus making the victims suffer from physical and spiritual pains.
7.2. This crime can only be examined for penal
liability in one of the following cases:
a) Acts of ill-treatment, persecution cause
serious consequences, namely making the ill-treated or persecuted persons
always tormented sentimentally, hurt their honor, undergo spiritual sufferings
or get injured, damage to their health. The injury or health damage is caused
by unintentional faults; if it leads to human death, the offender shall be
examined for penal liability for accidentally causing human death (Article 98,
the PC).
Where the injury, health damage or human death
occurred due to intentional faults, depending on each specific case, the
offender shall be examined for penal liability according to corresponding
clauses of Article 104 of the PC for intentionally inflicting injury on or
causing harm to the health of other persons, or Article 93 of the PC for
murder; if making victims writhe so deeply that they commit suicide, the offenders
may be examined for penal liability for forcing suicide under Article 100 of
the PC.
b) Persons who commit acts of ill-treatment,
persecution and have already been administratively sanctioned for such acts,
but repeat the violations.
7.3. Objects of infringement prescribed in
Article 151 of the PC include:
a) Grandparents, including paternal grandparents
and maternal grandparents;
b) Parents, including natural parents, adoptive
parents, step fathers, step mothers;
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d) Children, including natural children (wedlock
children and out-of-wedlock children); adopted children, sons-in-law;
daughters-in-law; children of previous marriages of the husband or wife;
e) Grandchildren, including paternal
grandchildren, maternal grandchildren;
f) Fosterers means brothers, sisters, aunts,
uncles, next of kin or other persons who fostered or are fostering the persons
who have committed in-treating or persecuting acts.
It should be noted that only cases of
ill-treating or persecuting the subjects mentioned above shall be examined for
penal liability for this crime; if the ill-treating or persecuting acts are
committed against persons other than the above-mentioned subjects, the
offenders shall be examined for penal liability for the crime of ill-treating
other persons according to Article 110 of the PC; where the ill-treating or
persecuting acts constitute means of forcible marriage or prevention of
voluntary and progressive marriage, the offenders shall be examined for penal
liability for crimes of forcible marriage or prevention of voluntary and
progressive marriage according to Article 146 of the PC.
8. Regarding the crime of
refusing or evading the obligation to provide financial support (Article 152,
the PC)
8.1. The obligation to provide financial support
means a person’s duty to contribute money or other property to meeting the
essential needs of the person having marital, blood or fostering ties under the
provisions of the marriage and family legislation.
According to Articles from 50 through 60 of
Chapter VI of the 2000 Law on Marriage and Family, the obligation to provide
financial support is implemented between:
a) Husband and wife;
b) Father, mother and children;
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d) Brothers, sisters of the common parents.
8.2. Having the practical capability to fulfill
the financial support obligation means the persons with obligation to provide
financial support have money, property or incomes, which can ensure their
family life at the local average level.
8.3. Acts of evading or refusing the obligation
to provide financial support are usually manifested through the refusal to
contribute money or property for financial support though having the practical
capability to fulfill such obligation.
8.4. The crime of refusing or evading the
obligation to provide financial support can be examined for penal liability
only when there appear all the following signs:
a) The offenders must be the persons having the
obligation to provide financial support under the provisions of the Marriage
and Family Law;
b) The offenders have refused or evaded the
obligation to provide financial support;
c) The refusal or evasion of the obligation to
provide financial support causes serious consequences (namely making the
persons entitled to the support fall into the dangerous situation threatening
their lives or health, such as ailment, diseases, etc). Though serious
consequences have not yet been caused, the offenders had already been
administratively sanctioned for this act, but repeated their violations.
8.5. In the process of investigation,
prosecution, trial of this crime, it should be noted that if the court has
already issued the judgments or decisions, forcing the persons with the
obligation to provide financial support to fulfill their obligation, but such
persons deliberately refuse to execute them even though necessary coercive
measures were already applied, such persons shall be examined for penal
liability according to Article 304 of the PC for failing to execute judgments.
9. Implementation effect of the
Circular
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In the course of implementation, if any problems
arise or additional explanations and/or guidance are needed, they should be
reported to the Ministry of Justice, the Ministry of Public Security, the
Supreme People’s Court and the Supreme People’s Procuracy for timely additional
explanations or guidance.
FOR THE JUSTICE MINISTER
VICE MINISTER
Uong Chu Luu
FOR THE MINISTER OF PUBLIC
SECURITY
VICE MINISTER
Le The Tiem
FOR THE CHIEF JUDGE OF THE
SUPREME PEOPLE’S COURT
DEPUTY CHIEF JUDGE
Dang Quang Phuong
FOR THE
DIRECTOR OF THE SUPREME PEOPLE’S PROCURACY
DEPUTY DIRECTOR
Pham Sy Chien