Under criminal law, not every act associated with a criminal offence is treated equally. In many cases, an individual may merely prepare tools or means, or formulate a plan to commit an offence, without causing any actual harm. This raises the question of whether preparation for a criminal offence is punishable and under what circumstances criminal liability arises.
This article analyzes the relevant provisions of the 2015 Criminal Code of Vietnam (as amended and supplemented in 2017) to clarify this issue.
1. What Constitutes Preparation for a Criminal Offence?
To determine whether a person may incur criminal liability, it is first necessary to understand the legal concept of preparation for a criminal offence.
Pursuant to Clause 1, Article 14 of the 2015 Criminal Code (as amended and supplemented in 2017), preparation for a criminal offence includes any of the following acts:
- Searching for or preparing instruments or means to commit an offence;
- Creating other conditions necessary for the commission of an offence;
- Establishing or participating in a criminal group, except where such establishment or participation falls within the circumstances prescribed in Article 109, Point a, Clause 2, Article 113, or Point a, Clause 2, Article 299 of the Criminal Code.
Accordingly, preparation for a criminal offence refers to the stage preceding the commencement of the criminal act itself. At this stage, the offender merely creates the conditions necessary for committing the offence and has not yet engaged in conduct directly infringing upon the legally protected interests.
Examples include:
- Purchasing a knife with the intention of committing murder;
- Preparing poison to kill another person;
- Obtaining lock-picking equipment for the purpose of committing theft;
- Establishing a group to carry out a robbery.
Such conduct may constitute preparation for a criminal offence if all statutory elements prescribed by the Criminal Code are satisfied.
2. Is Preparation for a Criminal Offence Subject to Criminal Liability?
Yes. However, not every act of preparation gives rise to criminal liability.
Pursuant to Clause 2, Article 14 of the 2015 Criminal Code, a person preparing to commit an offence shall incur criminal liability only in respect of certain offences specifically prescribed by the Criminal Code.
This reflects the State’s criminal policy of imposing criminal liability at the preparation stage only for offences that are particularly serious or capable of causing substantial harm to society.
Conversely, where preparation relates to an offence not included in the statutory list, the individual shall not be subject to criminal prosecution solely on the basis of preparatory acts.
Accordingly, determining criminal liability requires not only identifying whether preparatory acts have occurred but also assessing whether the intended offence falls within the categories for which criminal liability attaches at the preparation stage.
3. Offences for Which Preparation Is Criminally Punishable
Clause 2, Article 14 of the 2015 Criminal Code specifies the offences for which preparation constitutes a criminally punishable act.
These primarily include particularly serious offences involving national security, offences against human life, drug-related crimes, terrorism, and other serious criminal offences.
Representative examples include:
- Treason;
- Activities aimed at overthrowing the people’s administration;
- Espionage;
- Rioting;
- Terrorism against the people’s administration;
- Murder;
- Robbery;
- Kidnapping for the purpose of appropriating property;
- Certain drug-related offences;
- Certain terrorism-related offences;
- Other offences specifically enumerated in Clause 2, Article 14 of the Criminal Code.
Accordingly, criminal liability at the preparation stage is limited to offences that the legislature considers to pose a particularly high degree of danger to society.
4. How Does Preparation Differ from an Attempted Offence?
These two legal concepts are frequently confused but have fundamentally different legal implications.
4.1. Preparation for a Criminal Offence
Preparation refers to the stage in which the offender merely creates the conditions necessary for committing the offence.
At this point, the individual has not yet commenced the conduct constituting the criminal offence.
For example, a person intending to commit murder who has only purchased a weapon or monitored the victim’s daily routine remains at the preparation stage.
4.2. Attempt to Commit a Criminal Offence
Pursuant to Article 15 of the 2015 Criminal Code, an attempted offence occurs where the offender has commenced the commission of the offence, but the offence is not completed due to circumstances beyond the offender’s control.
For example, where an offender stabs a victim with a knife but the victim survives because of timely medical treatment, the offender has committed an attempted murder rather than merely preparing to commit the offence.
In such circumstances, criminal liability arises for an attempted offence, rather than for preparation.
5. Is a Person Between 14 and Under 16 Years of Age Liable for Preparation?
Not every person aged between 14 and under 16 years is criminally liable for preparatory acts.
Pursuant to Article 12 of the 2015 Criminal Code, persons within this age group incur criminal liability only for certain very serious or particularly serious intentional offences as prescribed by law.
Furthermore, Clause 3, Article 14 of the Criminal Code provides that individuals aged between 14 and under 16 years are criminally liable for preparation only in relation to:
- Murder; or
- Robbery.
Accordingly, the scope of criminal liability for juveniles at the preparation stage is significantly narrower than that applicable to adults.
6. Penalties for Preparation for a Criminal Offence
The penalties imposed for preparation differ from those applicable where an offence has been completed.
Pursuant to Article 57 of the 2015 Criminal Code, when determining the sentence for preparation, the Court shall consider:
- The nature and degree of danger posed by the preparatory conduct;
- The extent to which the criminal intent has been carried out;
- Other relevant circumstances of the case.
The applicable sentence is generally lighter than that imposed for a completed offence.
Where the completed offence carries a maximum penalty of life imprisonment or capital punishment, the sentence for preparation shall not exceed 20 years’ imprisonment.
Where the applicable offence is punishable by a fixed-term imprisonment, the sentence imposed for preparation shall not exceed one-half of the maximum term of imprisonment prescribed for the completed offence.
These provisions reflect the principle of individualized sentencing, ensuring that the punishment corresponds to the actual degree of danger posed by the offender’s conduct.
7. Practical Considerations Regarding Criminal Liability for Preparation
When assessing criminal liability for preparatory acts, several important points should be noted:
- Not every preparatory act constitutes a criminal offence.
- Criminal liability at the preparation stage applies only to the offences listed in Clause 2, Article 14 of the Criminal Code.
- It is essential to distinguish preparation from an attempted offence, as each stage is governed by different legal rules.
- Persons aged between 14 and under 16 years incur criminal liability for preparation only in the limited circumstances expressly prescribed by law.
Correctly identifying the stage of criminal conduct is essential for determining the appropriate offence and imposing a lawful sentence.
8. Conclusion
Under Article 14 of the 2015 Criminal Code (as amended and supplemented in 2017), preparation for a criminal offence may give rise to criminal liability, but only in respect of specific offences expressly prescribed by the Criminal Code. A person preparing to commit an offence is subject to criminal liability only where the intended offence falls within the statutory categories identified by law.
Accordingly, determining whether criminal liability arises requires consideration of multiple factors, including the stage of the criminal conduct, the intended offence, and the relevant provisions of the Criminal Code. A proper understanding of these rules not only promotes awareness of legal responsibility but also contributes to the consistent and accurate application of Vietnamese criminal law.
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Nguyen Thuy Duong