​Việt Nam’s Penal Code Reform: The Contradictions of the New Leniency Policy

​Less than a year after the June 2025 amendments, the Ministry of Public Security (MPS) has once again replaced the Ministry of Justice as the lead agency drafting the amended Penal Code. [1] [2]

This revision, however, does not merely target specific provisions; it represents a comprehensive overhaul of criminal law policy.

A central feature of this revision is the proposed reduction or exemption of certain penalties, alongside new mechanisms that govern punishment and criminal liability. [3]

Initially, these proposals seem to align with the call to “renew criminal legislative thinking in a humane and progressive direction” and to “encourage the use of restorative and community reintegration measures,” a directive established in the October 2025 drafting plan issued by former Prime Minister Phạm Minh Chính. [4]

Yet, a closer examination of the individuals, entities, and offenses eligible for this relaxed criminal liability reveals an unusual motive behind the proposals labeled as “humane” and “progressive.” 

Special Leniency for Full Restitution

In the draft policy for amending the Penal Code, the MPS proposes highly favorable adjustments to punishment and criminal liability for offenders who fully remedy the consequences of their actions.

Primarily, the ministry intends to create an intermediate mechanism between “immediate prosecution” and “immediate exemption” called the temporary deferral of criminal liability. [5]

This entirely new mechanism provides offenders time to remedy the consequences, potentially allowing them to avoid a criminal case altogether and be exempted from liability at an early stage.

To qualify for this deferred prosecution, the violation must meet three specific criteria:

• It caused economic damage but was committed for socioeconomic development or national defense and security;

• It did not involve corruption;

• It generated socioeconomic benefits for the locality or the country, and its consequences can be fully remedied.

Furthermore, the MPS proposes sharp sentence reductions—even decreasing the death penalty to a maximum 20-year prison term—for offenders who show remorse and fully remedy the consequences. [6]

This effectively bypasses multiple stages of sentence reduction under the existing criminal law framework, which mandates strict conditions for death penalty commutations and amnesties for life or fixed-term sentences.

Currently, offenders must fulfill rehabilitation requirements and serve a minimum amount of time, including at least 15 years for life sentences. [7]

Regarding the death penalty, existing law offers no direct shortcut to fixed-term imprisonment; leniency only permits commutation to life imprisonment via clemency or by satisfying the specific conditions of Clause 4, Article 40 of the current Penal Code. [8]

In both of the MPS proposals, financial restitution acts as the primary determinant for criminal liability.

The question remains: Should the capacity to compensate for damages serve as the key to special leniency?

While asset recovery is vital, it cannot supersede the core criminal law objectives of deterrence and prevention. In economic crimes, individuals capable of full restitution are typically those with high status and substantial financial resources.

If restitution becomes the decisive factor for sentence reduction or exemption, the leniency policy heavily favors those wealthy enough to “buy back” their criminal risk.

This sends a dangerous message that serious harm can result in a reduced sentence or outright exemption, provided the offender can pay the required sum. As a result, this leniency ceases to be a humanitarian policy and instead functions as a selective privilege for the elite.

Double Standards for the Police and Lawyers

​A second contradiction in the proposed Penal Code revision is the relaxation of criminal liability for actors who require strict oversight, alongside the tightening of rules for those whose roles necessitate protection.

For instance, the MPS proposes expanding exemptions for concealing or failing to report a crime to include extended relatives like adoptive parents, parents-in-law, stepparents, adopted children, and stepchildren. [9] 

Conversely, Articles 18 and 19 of the current Penal Code strictly limit this exception to grandparents, parents, children, grandchildren, siblings, spouses, and biological brothers and sisters. [10]

This provision creates an overly broad immunity zone that subordinates the public interest and crime detection to kinship. Most international legal frameworks prioritize the public interest over family ties; under Article 434-1 of the French Penal Code, for example, exemptions for failing to report a crime apply exclusively to parents, siblings, and spouses. [11]

Furthermore, the MPS draft policy proposes an exemption for police officers, excluding them from criminal liability when “carrying out professional measures.” [12] 

Any immunity granted to people wielding coercive power must be bound by strict conditions. Without them, the term “professional measures” becomes an excessively broad justification that could easily legitimize acts that violate human and civil rights.

While the draft establishes these broad safe zones for police and extended family, it simultaneously tightens the liability for legal counsel. The MPS proposes that lawyers bear criminal liability for failing to report clients who are preparing to commit a crime. [13]

While no democratic legal system encourages lawyers to facilitate criminal conduct, attorney-client confidentiality remains a fundamental pillar of the right to defense. Expanding the duty to report so aggressively ensures that clients will no longer dare to speak truthfully to their legal representatives, effectively weakening the right to a legal defense in practice.

Leniency Must be Fair and Measured

​Defending this contradiction, the Ministry of Public Security argues that its proposals reflect the policy of “closely combining strict punishment with leniency and humanity.” In principle, this approach is sound; criminal law must punish, but it must also offer offenders a path to make amends and reintegrate into society.

However, leniency is only persuasive when grounded in transparent, consistent, and fair criteria. It cannot become a purchasable privilege for those wealthy enough to remedy the consequences, nor should it create overly broad exemptions that prioritize private interests over the public good. Most importantly, leniency should not be given to people who have coercive power unless there are also independent ways to check on them.

While these proposals are currently only draft policy directions rather than specific legal provisions, they already expose unusual shifts in the revision of a foundational law. If these irregularities are not identified and challenged early, inertia could easily pass them by and ultimately redefine the very nature of the legal framework.

In a truly humane criminal justice policy, leniency alone is not enough. What matters more is the ability to grant leniency fairly and with proper restraint.

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Trường An 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.