Policy on enforcement of imprisonment sentences in Vietnam and China - from the perspectives of tradition, constitution and statutory law

• Main Author: Le, Lan Chi
• Other Authors: Asian constitutional law recent developments and trends : Vietnam, Hanoi, 6th and 7th December 2019. Volume 1
• Format: Conference or Workshop Item
• Language: Vietnamese
• Published: Đại học Quốc Gia Hà Nội 2020
• Subjects: imprisonment; punishment; reform; prisoners’ rights; Yin Yang
• Online Access: http://repository.vnu.edu.vn/handle/VNU_123/94795
• Institution: Vietnam National University, Hanoi

Vietnam and China, the two neighbours are both in the family of the legal system of the feudalism - “中华法系” (Chinese legal system) in the past and of the socialism now. The paper raises the questions: Do such analogous points lead to any analogous policy on the enforcement of imprisonment sentences? Besides, are there any distinct points between the two countries? What is the movement of these common and distinct points in the current policies on enforcement of imprisonment sentences, especially when Vietnam and China have recently revised their constitutions and prison laws? The paper applies Comparison, “Yi – ology” and Generalization as three main methods to answer these questions; in addition, “Contextual analysis” and “Teleological Statute interpretation” ones are also employed. The paper argues that apart from some differences between Vietnam and China, the two countries have the same approach, which is the outstanding“阴法阳儒” (Yang Fa, Yin Ru), i.e. Legalism with law (penalty) is the mainstream and Confucianism with morality (virtue) is subordinate in the enforcement of imprisonment sentences and which is far distinct from the shown approach “阴儒阳法” (Yang Ru, Yin Fa). Nowadays, the more harmonious approach between government powers and human rights in the 2013 Constitution of the Socialist Republic of Vietnam (the 2013 Constitution of Vietnam) and the Constitution of the People’s Republic of China with the 2018 Amendment (the Constitution of China) entails further adjustments to the policy on enforcement of imprisonment sentences based on the new context but in connection with history and tradition values of the two countries.