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Historically, the state's most powerful tools for maintaining social order have been arrest, detention, prosecution, trial, and imprisonment. Common legal thinking dictates that the true power of criminal law lies in its ability to deprive individuals of their freedom.

Yet, a notable shift is beginning to emerge within the latest draft revision of the Criminal Code . [1]

The Ministry of Public Security (MPS) is proposing a series of alternatives to incarceration, particularly for certain economic crimes.

These proposals include expanding financial penalties, broadening exemptions from criminal liability, and allowing temporary deferrals of prosecution to let offenders remedy the consequences of their actions. Additionally, the draft aims to widen the use of non-custodial rehabilitation measures.

This shift could lead to two entirely different outcomes.

A Trend Not Unique to Việt Nam

The proposal to reduce criminalization and increase financial sanctions is not a new concept internationally. Over the past few decades, many legal systems worldwide have gradually decreased their reliance on imprisonment, particularly for economic and corporate offenses.

The United States serves as a prime example. Currently, the U.S. Department of Justice employs mechanisms that allow companies to defer or entirely avoid prosecution, provided they voluntarily disclose violations, cooperate with investigators, and enhance their internal compliance systems. [2]

This policy aims to encourage businesses to proactively detect and report internal wrongdoing while incentivizing early and honest disclosure to authorities. [3]

When viewed from this perspective, the proposed revisions to Việt Nam’s Criminal Code clearly align with broader international legal trends.

The Practical Benefits of Expanding Fines

The strongest argument supporting this approach comes down to a highly practical question: when dealing with economic crimes, does society need another person in prison or the recovery of assets and compensation for damages?

In many economic crime cases, a company's total collapse following criminal prosecution creates consequences that extend far beyond the offender. Workers lose their jobs, investors lose capital, supply chains break down, and markets lose confidence, causing the broader economy to suffer severe ripple effects.

Conversely, imposing a sufficiently strong financial penalty can often produce far more practical outcomes. It enables the recovery of illicit gains and the compensation of victims, while forcing companies to restructure without destroying lawful economic activity.

The latest draft revision of the Criminal Code clearly reflects this shift through proposals like temporarily deferring prosecution for remediation, exempting criminal liability in compensated cases, and expanding the use of monetary fines. Ultimately, this approach suggests the state is recognizing that imprisonment is not the most effective solution for every legal violation.

The Commodification of Justice

Even so, the most difficult aspect of this policy is the reality that money is not always a fair instrument.

One of the primary criticisms of the “fines instead of prison” model is the risk that legal violations simply devolve into another “business expense.” If the profits generated from wrongdoing exceed the financial penalties, companies can easily calculate that it is more lucrative to commit the violation first and pay the fine later.

This phenomenon is hardly unprecedented. Many banks continue to commit violations despite facing billions of dollars in fines, making this concern increasingly tangible. If financial penalties lack the severity to force behavioral changes, they risk becoming merely another “ operating cost ” that financial corporations accept as part of doing business. [4]

Perhaps more troubling is the inherent risk of creating systemic inequality. A legal framework that prioritizes “remedying consequences” allows those with wealth to compensate victims and pay fines, while those without such means cannot. This raises a difficult question regarding who truly has the opportunity to correct their mistakes.

If freedom becomes a commodity exchanged for financial compensation, legal punishments may begin to reflect a defendant’s financial capacity rather than the actual severity of the offense.

As Việt Nam expands mechanisms for criminal liability exemptions based on “remedying consequences,” this risk becomes highly probable.

Safeguarding Justice Against Wealth Privilege

In “ Revisiting Theories of Punishment in the 21st Century, ” legal scholar Subodh Kumar Singh observes a common trend among modern justice systems: a reduction in criminal punishment coupled with expanded opportunities for compensation and remediation. [5]

However, Singh argues that mechanisms such as substituting fines for prison or granting exemptions based on remediation are only effective when the legal system is transparent, the criteria are clearly defined, and the discretionary power of enforcement authorities is strictly constrained.

This remains an important issue for the latest draft revision of Việt Nam’s Criminal Code. Currently, the draft relies heavily on broad concepts such as "for the purpose of socio-economic development,” “without self-interest,” “bringing benefits to the locality or the country,” and “objective causes.” If these terms lack specific definitions, enforcement agencies will retain excessively broad discretion in their interpretation.

Ultimately, if we do not make these standards strictly transparent, society risks facing a threat even greater than imprisonment: the profound unpredictability of the law itself.

***

If implemented effectively, this latest direction in revising the Criminal Code could mark a necessary shift away from a model of “punishment through imprisonment” and toward one focused on “remedying harm and managing risk.”

But if the legislation is designed too loosely, the revised law risks pushing society toward a dangerous reality where the wealthy are permitted to correct their mistakes, while those without financial means are sent to prison.

Thúc Kháng wrote this article in Vietnamese and published it in Luật Khoa Magazine on May 8, 2026. The Vietnamese Magazine has the copyrights of the English translation.

References: +

Ministry of Public Security. (2026). Draft policy dossier for the revised Criminal Code project . Bocongan.gov.vn. https://bocongan.gov.vn/chinh-sach-phap-luat/lay-y-kien-du-thao/du-thao-ho-so-chinh-sach-du-an-bo-luat-hinh-su-sua-doi-1776335113?type=dang-lay-y-kien&tab=fulltext

Voluntary Self Disclosure and Monitor Selection Policies. (2023, March 29). Justice.Gov. https://www.justice.gov/corporate-crime/voluntary-self-disclosure-and-monitor-selection-policies

McCullough, J., Moss, B., & Moore, G. (2026, March 12). New DOJ corporate enforcement and voluntary disclosure policy brings uniformity to cooperation credit in federal criminal cases. Reuters. https://www.reuters.com/legal/legalindustry/new-doj-corporate-enforcement-voluntary-disclosure-policy-brings-uniformity–pracin-2026-03-12/

Bloomberg. (2017, March 2). World’s biggest banks fined a whopping $321 billion since financial crisis. The Financial Express. https://www.financialexpress.com/business/banking-finance-worlds-biggest-banks-fined-a-whopping-321-billion-since-financial-crisis-572485/

Subodh, K., Singh, A., Professor, & Singh. (n.d.). Revisiting Theories of Punishment in the 21st Century: A Critical Analysis of Retribution, Deterrence, Rehabilitation, and Restorative Justice in Contemporary Legal Systems. https://theinfinite.co.in/wp-content/uploads/2025/05/Revisiting-Theories-of-Punishment-in-the-21st-Century.pdf