Looking at Table 3.2 shows that: During the period from 2008 to 2013, the total number of cases of property extortion was 995 cases with 1239 defendants, of which 924 cases with 1124 defendants were tried (accounting for 92.8% of the cases and 90.7% of the defendants). Of which, in 2008 there were 249 cases with 326 defendants, in 2008 there were 264 cases with 355 defendants, in the following years the number of cases and defendants committing this crime gradually decreased, at least in 2011 there were 78 cases with 94 defendants. Thus, on average, each year there were about 165 cases with nearly 207 defendants.
The number of cases transferred is very small, only 02 cases with 03 defendants, the files returned to the Procuracy have 44 cases with 67 defendants; the number of suspended cases has 03 cases with 03 defendants. The number of remaining cases that have not been tried is 22 cases with 42 defendants.
Third, analyze the sanctions for the defendants according to the Court's decision (punishment and measures to exempt from criminal liability and additional penalties and penalties) for the crime of property extortion, shown in Table 3.3.
Table 3.3: Analysis of sanctions for defendants according to the Court's decision on the crime of property extortion
Year
Analysis of the number of defendants tried | |||||||||||||
Main penalty | Additional penalties | ||||||||||||
Not guilty | Exemption from criminal liability or punishment | Expulsion | Warning | Fine | Non-custodial reform | Suspended sentence | From 03 years or less | From 03 years to 5 years | From 07 years to 15 years | Confiscation of assets | Fine | Expulsion | |
2008 | 1 | 2 | 3 | 71 | 177 | 34 | 4 | 2 | 19 | ||||
2009 | 5 | 7 | 79 | 160 | 67 | 5 | 4 | 5 | |||||
2010 | 1 | 1 | 1 | 58 | 109 | 19 | 1 | ||||||
2011 | 3 | 51 | 75 | 11 | 1 | ||||||||
2012 | 5 | 31 | 40 | 18 | 1 | 4 | |||||||
2013 | 2 | 2 | 16 | 59 | 4 | 3 | |||||||
Total | 0 | 1 | 0 | 0 | 10 | 21 | 306 | 620 | 153 | 15 | 10 | 24 | |
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Source: General Statistics Department - Supreme People's Court.
Looking at table 3.3 shows:
The number of defendants tried from 2008 to 2013 who were exempted from criminal liability or punishment was very small, only 01 defendant.
The study shows that: the rate of giving suspended sentences and prison sentences of 7 years or less to offenders convicted of extortion is very high, 306 defendants were given suspended sentences, on average, each year there are about 61 defendants who are given suspended sentences when committing this crime. In particular, in 2008, 2009 and 2010, the rate of defendants given suspended sentences is very high, 71, 79 and 58.
Regarding the penalty of 03 years or less: from 2008 to 2013, there were 620 defendants who received this penalty, on average each year there were more than 103 defendants who received a penalty of 03 years or less. In the three years 2008, 2009 and 2010, the number of defendants who received this penalty was very high at 177, 160, 109, meaning that each year there were more than 100 defendants who received a penalty of 03 years or less.
Regarding the penalty range from 03 years to 07 years: the number of defendants receiving this penalty range is less, from 2008 to 2013, only 153 defendants were punished in this penalty range. Regarding the penalty range from 07 years to 15 years: the number of defendants punished in this penalty range is the least, only 15 defendants were punished in this penalty range when committing the crime of extortion.
The application of additional penalties to defendants who committed the crime of extortion from 2008 to 2013 was mainly monetary fines. From 2008 to 2013, 24 defendants were imposed monetary fines.
Fourth, analyze the personal characteristics of defendants tried for property extortion during the period from 2008-2013, data shown in Table 3.4.
Table 3.4: Personal characteristics of defendants tried for the crime of property extortion
Year
Characteristics of the offender's personality | |||||||||||
Civil servants | Party member | Party committee members from district level and above | Relapse, Dangerous recidivism | Drug Addiction | Ethnic minorities | Female | From 14 to under 16 years old | From 16 to under 18 years old | From 18 to 30 years old | Foreigner | |
2008 | 9 | 2 | 53 | 1 | 5 | 111 | |||||
2009 | 1 | 1 | 40 | 7 | 3 | 94 | |||||
2010 | 19 | 3 | 53 | ||||||||
2011 | 9 | 2 | 2 | 39 | |||||||
2012 | 1 | 13 | 3 | 28 | |||||||
2013 | 1 | 1 | 8 | 1 | 46 | ||||||
Total | 11 | 2 | 3 | 142 | 13 | 14 | 371 | ||||
Source: General Statistics Department - Supreme People's Court.
Looking at table 3.4 shows:
The number of defendants convicted of property extortion does not include any party members or civil servants. The number of female defendants is relatively high, with an average of 24 female defendants committing this crime each year.
The criminals are mainly adults from 18 to under 30 years old, with the highest number in 2008 being 111 defendants from 18 to under 30 years old who committed this crime.
Fifth, compare the ratio of cases and defendants tried for property extortion with the total number of cases and defendants tried for property infringement crimes (crimes from Article 133 to Article 145 of the Penal Code), shown in the statistical table below (Table 3.5).
Table 3.5: Ratio of number of cases and number of defendants tried for property extortion to total number of cases and number of defendants tried for property infringement crimes
Year
Crimes against property (Articles 133 to 145) | Crime of extortion (Article 135) | Percentage | ||||
Number of cases (I) | Number of defendants (II) | Number of cases (III) | Number of defendants (IV) | (I) and (III) | (II) and (IV) | |
2008 | 10,449 | 21,262 | 249 | 326 | 2.38 | 1.53 |
2009 | 11,542 | 22,952 | 264 | 355 | 2.28 | 1.54 |
2010 | 13,642 | 29,291 | 177 | 211 | 1.3 | 0.72 |
2011 | 13,176 | 29,195 | 133 | 152 | 1.0 | 0.52 |
2012 | 12,732 | 30,332 | 94 | 101 | 0.73 | 0.33 |
2013 | 11,167 | 25,997 | 78 | 94 | 0.69 | 0.36 |
Total | 72,708 | 159,029 | 995 | 1,239 | 1.36 | 0.77 |
Source: General Statistics Department - Supreme People's Court.
Looking at table 3.5 shows:
Of the total number of cases and defendants committing crimes against property (crimes from Article 133 to Article 145 of the Penal Code), the number of cases and defendants committing crimes of extortion of property accounts for a very small proportion in terms of both the number of cases and the number of defendants. The highest number was in 2008, accounting for 2.38% of the total number of cases and 1.53% of the total number of defendants; the lowest number was in 2011, accounting for 0.69% of the total number of cases and 0.36% of the total number of defendants.
3.1.2. Practice in adjudicating property extortion cases
Through studying a number of specific judgments by courts at all levels across the country on the crime of property extortion, it can be seen that the act of property extortion is often expressed in the following forms of behavior:
One is, the offender threatens to destroy the property if the person responsible for the property does not hand over the property to the offender or makes it difficult for the person with the property to perform a job in order to appropriate the property.
Example 1: On April 16, 2012, Mr. Nguyen Van T mobilized a bulldozer to level the land behind Mr. Th's house in Quarter 6, Ward 5 according to the agreement of
On both sides, they met Nguyen Van S and Pham Phu M. When meeting Mr. T, S threatened Mr. T and forced Mr. T to pay S to level the land, otherwise he would be beaten, Mr. T was afraid so he did not dare to level the land. On April 21, 2012, S continued to call Mr. T to talk, when Mr. T came to meet S, S asked Mr. T to give S
50,000,000 VND, Mr. T asked to reduce it to 25,000,000 VND, S agreed. Then, Mr. T gave S 10,000,000 VND in advance, S promised to pay the rest of the money after 5 days. For this act, S was sentenced to 02 years in prison for extortion.
Example 2: At around 9:00 p.m. on October 12, 2012, after drinking alcohol, Le Van V walked to Rach Ruong bridge to block cars and threaten drivers to steal money. When he encountered Nguyen Thanh L's car, V stopped it and asked for money, but L refused. V immediately used a eucalyptus stick to smash L's car window. L had to give L 500,000 VND. V stated that in addition to this incident, during October 2012, V committed 3 other similar cases. For this act, V was sentenced to 2 years in prison for extortion (the Court did not apply the professional nature of the crime).
Example 3: On May 12, 2012, Mr. Le Van S was driving a tractor and it overturned into a ditch. Mr. S called his friend to help him lift the vehicle. At that time, Le Dinh Th and Nguyen Huu N came and said that this was our land, if we wanted to lift the vehicle, we had to hire Th and N for 15,000,000 VND, if we wanted to lift the vehicle ourselves, we had to pay 7,000,000 VND. Mr. S did not agree, so Th and N continuously threatened him and did not allow him to lift the vehicle. The next day, Mr. S had to pay Th and N
6,400,000 VND to lift the car. For this act, Th and N were both sentenced to 9 months in prison for extortion, but given a suspended sentence.
Second, criminals impersonate authorized State officials such as police officers, soldiers, journalists... to inspect, arrest, and search people with property, forcing them to hand over money or property.
Example 1: At about 9:00 p.m. on April 3, 2012, Vu Minh D, Bui Thanh L and Nguyen Thanh T went together to Dang Xuan Th's room at Trung
medical level to play. When they arrived, Mr. Th was not home, only 4 friends were sitting and gambling. D, L and T went in together, D pretended to be a police officer, threatening the gamblers. Mr. L was a gambler and had to give D
400,000 VND and 1 phone. For this act, D was sentenced to 01 year in prison for the crime of Extortion.
Example 2: On October 23, 2012, Duong Duc Ngh went to AD bar and bought sex with Ms. Nh. After having sex with Ms. Nh, Ngh pretended to be a police officer and threatened to arrest Ms. Nh if she did not give Ngh 50,000,000 VND. Because she was afraid of being arrested, Ms. Nh had to give Nghi 500,000 VND. For this act, Ngh was sentenced to 5 years in prison for the crime of Extortion of property according to Point d, Clause 2, Article 135 of the Penal Code.
Third, threatening to reveal private secrets of property owners that they do not want anyone to know in order to appropriate the property or fabricating and slandering the person responsible for the property in order to appropriate the property.
Example 1: Nghiem Quy Ph had a relationship with Ms. Tran Thi My Ch since March 2011 when both of them were married. After a while, Ms. Ch wanted to end the relationship, but Ph did not agree and set a condition that Ms. Ch had to give Ph 20,000 USD or else Ph would send videos and pictures of the two of them having sex to Ms. Ch's family. Out of fear, Ms. Ch agreed but only had 200,000,000 VND. When Ph received the above amount from Ms. Ch at the cafe, he was caught red-handed by the police. For this act, Ph was sentenced to 04 years in prison for the crime of Extortion of property according to Point d, Clause 3, Article 135 of the Penal Code.
Example 2: Mr. Le Hai A is in the running to be elected Chairman of the District People's Committee. Journalist Nguyen Duc B immediately emailed Mr. A an article accusing Mr. A of having an illicit relationship with Ms. C, suggesting that if Mr. A paid B some money, B would not allow the article to be published. Although Mr. A and Ms. C did not have a relationship, because he did not want to lose his reputation before the election, Mr. A agreed to give money to B.
Fifth, the act of extortion of property arising from illegal debt collection (also known as debt collection)
This is a new type of crime that has appeared quite a lot recently, especially during the period when the economy faced many difficulties, agencies, businesses and individuals could not find capital to serve production and business, so they had to borrow money at high interest rates from loan sharks and "mafia" subjects. When the deadline came, because they could not pay the debt, they were arrested, beaten and forced to write a debt acknowledgment with an amount many times larger than the loan amount, even having to mortgage houses, land, and valuable assets to pay the debt.
Example 1: In 2008, Mr. D borrowed 400,000,000 VND from Mr. Vu Van T. When the loan expired, Mr. T asked for payment many times but Mr. D did not pay. Because Mr. T still owed Ha Tuan D 480,000,000 VND, Mr. T agreed to let D collect Mr. D's debt.
On September 28 and 29, 2011, the defendants Ha Tuan D, Bui The T, Le An L, Hoang Ngoc T and Quan Hong H arrested Mr. Pham Van D and took him to motel V. At the same time, they forced Mr. D to write a debt note of 1,008,000,000 VND and asked Ms. K, Mr. D's wife, to bring the money to ransom him. When they were receiving 540,000,000 VND from Ms. K, they were arrested.
For the above acts, the People's Court of Hanoi sentenced Ha Tuan D to 13 years in prison, Bui The T to 12 years in prison, Le An L to 11 years in prison, Hoang Ngoc T to 10 years in prison and Quan Hong H to 09 years in prison for the crimes of illegal detention and extortion.
Example 2: Because they suspected that Mr. Vu Van B used fraudulent tricks when playing the lottery to appropriate 300,000,000 VND, on November 31, 2011, Kieu Ngoc L, Nguyen Ngoc B, Nguyen Van Th, Do Xuan H, Nguyen Tien Ng, Hoang Trung K, Luc Hai H arrested Mr. Vu Van B, took him to a motel, used chains to tie his legs, used scissors to threaten to cut off his fingers, used a gun to threaten to shoot him to force Mr. B to pay.
refund or write a debt receipt of 1,050,000,000 VND. Out of fear, Mr. B had to call his wife, Ms. M, to pawn the car for 280,000,000 VND to pay K.
For the above acts, the People's Court of HG City sentenced Kieu Ngoc L to 03 years in prison, the remaining defendants Nguyen Ngoc B, Nguyen Van Th, Do Xuan H, Nguyen Tien Ng, Hoang Trung K, Luc Hai Hung each to 15 months in prison but with a suspended sentence for the crimes of illegal detention and extortion.
3.1.3. Some shortcomings and inadequacies in trial practice and their basic causes
a) Some shortcomings and inadequacies in handling this crime
+ Inadequacies in applying circumstances to determine the penalty
When dealing with crimes of property extortion, although the Law stipulates that the amount of money appropriated is the determining factor, when applying it to trial, the Courts also have different understandings, confusion in determining the consequences of property extortion, leading to inappropriate application of the law.
In the above examples, Duong Duc Ngh threatened and forced Ms. Nh to give 50,000,000 VND, in reality Ngh only took 500,000 VND. However, the Court punished Ngh according to Point d, Clause 2, Article 135 of the Penal Code (the value of the misappropriated property was from 50,000,000 VND to less than 200,000,000 VND). Meanwhile, Nghiem Quy Ph forced Ms. Ch to give 20,000 USD, but the Court only determined that Ph actually appropriated 200,000,000 VND according to Point a, Clause 3, Article 135 of the Penal Code (the value of the misappropriated property was from 200,000,000 VND to less than 500,000,000 VND). In the above cases, the Courts have not yet reached a consensus when determining the consequences of the crime: the amount of money the defendant intended to appropriate, the amount of money the victim agreed to pay, or the actual amount the perpetrator received...