English - CEDAW Southeast Asia

A Gendered and Rights-Based Review of Vietnamese Legal Documents through the Lens of CEDAW
Article 48 of the Penal Code also provides for circumstances that may generally aggravate
penal liability, which include abusing position and power, and committing a crime against
children, pregnant women, aged persons, persons unable to defend themselves, or persons
dependent on offenders (for materials, moral conditions, work or others).
Acts of infringing upon children’s rights
Article 8(6) of the Decree No. 36/2005/ND CP Detailing the Implementation of a Number of
Articles of the Law on Child Protection, Care and Education (Decree on Children Law) prohibits
trafficking in children in any form.
There is no definition of ‘trafficking’ provided in legal documents. Some guidance can be
found in Resolution No. 04/HDTP by the Judicial Council of Supreme People’s Court of 29
November 1986 on Guidelines for applying a number of provisions in the Penal Code
(Resolution on Penal Code). The resolution provides that ‘trading in children’ means “the buying
or selling of a child for personal profit, even buying a child from the stealer or the parents.
The act of buying a child knowing that the child is stolen shall also be regarded as a crime of
trading in children.”
The Trafficking Protocol requires criminalization of all aspects of trafficking. Vietnamese
laws have a good coverage of offences that are committed in the ‘course of trafficking’. These
include prostitution, labour exploitation, violence, sexual assault, illegal entry and exit, organizing
or forcing others to run away for abroad, and illegal marriages. The crime of prostitution
is already penalized under the Penal Code (see Part 4.2.1). As to labour exploitation, Articles
227 and 228 of the Penal Code punish violations of labour safety and hygiene conditions and
violations of provisions of child labour. Further, hard and dangerous work, and work that
exposes one to hazardous substances, are covered by legal documents promulgated by
MOLISA. Article 19 of the Labour Code also punishes and provides administrative sanctions
for “any conduct which is intended to deceive workers or to use an employment service as a
means of breaching the law is strictly prohibited, including forms of enticement, false promises,
or false advertising.”
Chapter XII of the Penal Code deals with crimes of infringing upon human life, health,
dignity and honor. These can be used to penalize particular offences committed in the course
of trafficking. These include: murder; 290 forced suicide; 291 inciting or assisting other persons to
commit suicide; 292 refusal to rescue people from a life-threatening situation; 293 threatening to
murder; 294 intentionally inflicting injury on or causing harm to the health of other persons; 295
rape; 296 rape of children; 297 forcible sexual intercourse; 298 forcible sexual intercourse with chil-
151
290
Ibid., Article 93
291
Ibid., Article 100
292
Ibid., Article 101
293
Ibid., Article 102
294
Ibid., Article 103
295
Ibid., Article 104
296
Ibid., Article 111
297
Ibid., Article 112
298
Ibid., Article 113
Trafficking and exploitation of prostitution (Article 6 of CEDAW)