Difference between silence in civil relations and right to silence in criminal procedures
Recently, the public have paid much attention to the case of obtaining property by deception brought to the court by Truong Ho Phuong Nga – a Miss Vietnam in Russia and Cao Toan My – the General Director of Vina Cyber. This case even draws much more attention from law students, law practitioners and those who study law matters owning to the fact that the defendant Nga has exercised the right to remain silent during the trial.
It is sure that many people have known about “ silence” in civil relations. Therefore, this article will specify the difference between the silence in civil relations and right to silence in criminal procedures.
In civil relations: Silence does not mean consent
Article 393 of Civil Code 2015 is specified as follows:
Article 393. Acceptance of offers to enter into contracts
1. Acceptance of an offer to enter into a contract means a reply from the offeree to the offeror indicating its acceptance of the entire contents of the offer.
2. The silence of the offeree shall not be considered as an acceptance of the offer to enter into the contract, unless it is agreed upon or based on habits established by the parties.
Therefore, in the cases where both parties agree that if the offeree’s silence upon expiry of time limit for reply constitutes an acceptance of offer to enter into the contract, it shall prevail.
Next, Article 400 of Civil Code 2015 is specified as follows:
Article 400. Time when the contract are entered into
1. A contract is entered into at the time when the offeror receives the reply of accepting to enter into the contract.
2. If the parties have agreed that silence shall be construed as an acceptance within a time limit, the contract shall also be deemed to be entered into when such time-limit expires.
Therefore, if both parties agree that the silence means consent, the contract will take effects from the time when the time limit for a reply expires. The abovementioned issue is no longer unfamiliar and happens on a daily basis in transactions among organizations or individuals.
In reality, parties of a contract, however, do not always agree that the silence will constitute as an acceptance of the offer to enter into the contract. Majority of transactions is made without the abovementioned agreement.
There are many cases in which parties of a contract do not agree that the silence will constitute an acceptance of the offer to enter into the contract but the offeree that has remained silent still executes a part of the contract when the offeror executes the contract. Is the silence in this case considered as the consent?
According to the abovementioned cases, the silence will constitute an acceptance of execution of a contract based on the following expressions:
- The party that has remained silent during the process of creation of the contract requests the other party to execute the contract
- The party that has remained silent during the process of creation of the contract accepts the execution of contract of the other party and also executes the contract.
- The party that has remained silent during the process of creation of the contract is well-informed about the execution of the contract and does not object to this execution.
- According to statements of the party having remained silent during the process of creation of the contract if this statements showing that the party remaining silent has agreed to enter into the contract.
(Based on opinions of Prof. Do Van Dai)
Criminal procedure: When should the right to remain silent be exercised?
The right to remain silent of defendants is one of the amendments to Criminal Procedure Code 2015 although it is not expressed explicitly. The right to remain silent is prescribed implicitly in Articles 59, 60 and 61 as follows: “A temporary detainee or a defendant is entitled to give testimonies and opinions and exercise right against self-incrimination".
In the case mentioned above, Miss. Phuong Nga has exercised right against self-incrimination by choosing silence when being questioned at the trial. This silence, however, is whether truly safe for the defendant. Opponents of right against self-incrimination indicate that the defendant has made a mistake owing to the fact that she will miss a chance to express her opinions and point out the mistakes of investigation authorities during the process in which the testimonies are given (if any).
The defendant’s silence will lead to consequences related to crime victims, defenders and other relevant people prescribed in Article 309 of Criminal Procedure Code. To be specific:
“If a defendant does not answer questions, the judicial panel, procurators, defenders, protectors of legitimate benefits and rights of crime victims and litigants shall give further questions to other people related to the case and consider material evidences and documents related to the case”
To sum up, we find that the silence in civil relations and criminal procedure does not mean the consent but it is a way of expressing opinions of a contractual party or a defendant. The silence, in some cases, will mean the consent, refusal or even dissatisfaction.
Reading in Vietnamese at Sự khác biệt về “quyền im lặng” trong quan hệ dân sự và tố tụng hình sự
It is sure that many people have known about “ silence” in civil relations. Therefore, this article will specify the difference between the silence in civil relations and right to silence in criminal procedures.
In civil relations: Silence does not mean consent
Article 393 of Civil Code 2015 is specified as follows:
Article 393. Acceptance of offers to enter into contracts
1. Acceptance of an offer to enter into a contract means a reply from the offeree to the offeror indicating its acceptance of the entire contents of the offer.
2. The silence of the offeree shall not be considered as an acceptance of the offer to enter into the contract, unless it is agreed upon or based on habits established by the parties.
Therefore, in the cases where both parties agree that if the offeree’s silence upon expiry of time limit for reply constitutes an acceptance of offer to enter into the contract, it shall prevail.
Article 400. Time when the contract are entered into
1. A contract is entered into at the time when the offeror receives the reply of accepting to enter into the contract.
2. If the parties have agreed that silence shall be construed as an acceptance within a time limit, the contract shall also be deemed to be entered into when such time-limit expires.
Therefore, if both parties agree that the silence means consent, the contract will take effects from the time when the time limit for a reply expires. The abovementioned issue is no longer unfamiliar and happens on a daily basis in transactions among organizations or individuals.
In reality, parties of a contract, however, do not always agree that the silence will constitute as an acceptance of the offer to enter into the contract. Majority of transactions is made without the abovementioned agreement.
There are many cases in which parties of a contract do not agree that the silence will constitute an acceptance of the offer to enter into the contract but the offeree that has remained silent still executes a part of the contract when the offeror executes the contract. Is the silence in this case considered as the consent?
According to the abovementioned cases, the silence will constitute an acceptance of execution of a contract based on the following expressions:
- The party that has remained silent during the process of creation of the contract requests the other party to execute the contract
- The party that has remained silent during the process of creation of the contract accepts the execution of contract of the other party and also executes the contract.
- The party that has remained silent during the process of creation of the contract is well-informed about the execution of the contract and does not object to this execution.
- According to statements of the party having remained silent during the process of creation of the contract if this statements showing that the party remaining silent has agreed to enter into the contract.
(Based on opinions of Prof. Do Van Dai)
Criminal procedure: When should the right to remain silent be exercised?
The right to remain silent of defendants is one of the amendments to Criminal Procedure Code 2015 although it is not expressed explicitly. The right to remain silent is prescribed implicitly in Articles 59, 60 and 61 as follows: “A temporary detainee or a defendant is entitled to give testimonies and opinions and exercise right against self-incrimination".
In the case mentioned above, Miss. Phuong Nga has exercised right against self-incrimination by choosing silence when being questioned at the trial. This silence, however, is whether truly safe for the defendant. Opponents of right against self-incrimination indicate that the defendant has made a mistake owing to the fact that she will miss a chance to express her opinions and point out the mistakes of investigation authorities during the process in which the testimonies are given (if any).
The defendant’s silence will lead to consequences related to crime victims, defenders and other relevant people prescribed in Article 309 of Criminal Procedure Code. To be specific:
“If a defendant does not answer questions, the judicial panel, procurators, defenders, protectors of legitimate benefits and rights of crime victims and litigants shall give further questions to other people related to the case and consider material evidences and documents related to the case”
To sum up, we find that the silence in civil relations and criminal procedure does not mean the consent but it is a way of expressing opinions of a contractual party or a defendant. The silence, in some cases, will mean the consent, refusal or even dissatisfaction.
Reading in Vietnamese at Sự khác biệt về “quyền im lặng” trong quan hệ dân sự và tố tụng hình sự
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