Article 185D Does Not Provide as: “Using Children to Commit Crimes” Occurs


Illegal production is caused by the offender illegally storing, transporting, trading or appropriating drugs.

Because the unit of measurement is in milliliters, when determining substances

Liquid drugs require absolute accuracy, especially for

Drugs must not be packaged in tubes with symbols, content, and mass marked on them.

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quantity... the unit of measurement of which is approximately equal to or (above, below) one hundred milliliters but less than two hundred and fifty milliliters.

o) Possessing two or more narcotic substances, the total quantity of which is equivalent to the quantity of narcotic substances specified in one of the points from point g to point n, clause 2 of this article;

Article 185D Does Not Provide as: “Using Children to Commit Crimes” Occurs


This crime is similar to the case specified in Point i, Clause 2, Point e, Clause 3, Point d, Clause 4, Article 193 of the Penal Code. The determination of the total quantity of narcotic substances has been guided in

Joint Circular No. 01/1998/TTLT/TANDTC-VKSNDTC-BNV dated January 2,

1998 of the Supreme People's Court, the Supreme People's Procuracy and the Ministry of Home Affairs guiding the application of a number of provisions of the Law amending and supplementing a number of articles of the Penal Code.30

p) Dangerous recidivism.

This crime is similar to the case prescribed in

Point k, Clause 2, Article 193 of the Penal Code stipulates the crime of illegal production.

narcotics31, only

other

in place

dangerous recidivist

in this case the person has been convicted of a very serious crime, a special crime

especially serious due to intention, not yet cleared of criminal record but still storing, transporting

Illegally transferring, trading or appropriating narcotics in the cases specified in Clause 2, Clause 3, or Clause 4 of Article 194, or having re-offended, not having had his criminal record expunged, but committing the crime of illegally storing, transporting, trading or appropriating narcotics.

Committing a crime under the circumstances specified in Clause 2, Article 194 of the Penal Code shall result in imprisonment from seven to fifteen years, which is a very serious crime.

Compared with Clause 2 of Articles 185c and 185d of the 1985 Penal Code, if based only on the level of punishment, Clause 2 of Article 194 of the Penal Code

1999 is neither lighter nor heavier. However, clause 2

Article 194 of the 1999 Penal Code stipulates a number of additional circumstances as factors in determining the penalty framework that are not stipulated in Clause 2 of Articles 185c and 185d of the 1985 Penal Code, so Clause 2 of Article 194 must be considered an invalid provision.



30 See the analysis of points i, clause 2, point e, clause 3, point d, clause 4, Article 193 of the Penal Code.

31 See the analysis of point k, clause 2, Article 193 of the Penal Code.


beneficial to the offender. Therefore, the crime of illegally storing and transporting narcotics falls under the cases specified in Clause 2, Article 185c and Clause

2 Article 185d does not provide as follows: “Using children to commit crimes” occurs

If the crime was committed before 0:00 on July 1, 2000 but is only processed after 0:00 on July 1, 2000, Clause 2, Article 194 of the 1999 Penal Code cannot be applied, but only Clause 1, Article 185c, Article 185d or Article 185e of the 1985 Penal Code can be applied to the offender, because according to the provisions of Clause 2, Article 7 of the Penal Code, "a provision providing for a new aggravating circumstance cannot be applied to a crime committed before that provision comes into effect."

Compared to Clause 2 of Articles 185d and 185e of the 1985 Penal Code, Clause 2 of Article 194 of the 1999 Penal Code is lighter, because the lowest penalty in the penalty range is only seven years compared to ten years prescribed in Clause 2 of Articles 185d and 185e of the 1985 Penal Code, and Article 194 is also lighter than Articles 185d and 185e. Therefore, the crime of illegal trading or appropriation of narcotics occurring before 0:00 on July 1, 2000 but not handled until after 0:00 on July 1, 2000 shall be subject to Clause 2 of Article 194 of the 1999 Penal Code.

As with other criminal cases, in addition to basing on the provisions of the Penal Code on deciding on punishment, if the offender only falls into one case specified in Clause 2 of the article, has many mitigating circumstances specified in Clause 1, Article 46 of the Penal Code, and has no aggravating circumstances, the Court may impose a sentence of less than seven years in prison but not less than two years in prison because according to the provisions of Article 47 of the Penal Code, when there are at least two mitigating circumstances specified in Clause 1, Article 46 of the Penal Code, the Court may impose a sentence of less than seven years in prison.

may decide on a penalty below the lowest level of the penalty range,

but must be within the adjacent penalty frame

light

more than the law. If

The offender falls into many cases specified in Clause 2 of the law, has many aggravating circumstances and no mitigating circumstances, then the penalty is at the high end of the penalty range (fifteen years in prison).


3. Committing a crime in one of the cases specified in Clause 3, Article 194 of the Penal Code

a) Opium resin, cannabis resin or coca extract weighing from one kilogram to less than five kilograms

This crime case is similar

like

case specified in

Point g, Clause 2 of the article, only

other

in place

plastic weight

opium, cannabis resin or coca extract is from one kilogram to less than five

kilogram. The determination of opium resin. cannabis resin or coca extract also


similar to the case prescribed in other laws on these drugs.

b) Heroin or cocaine weighing from thirty grams to less than one hundred grams.

This crime is similar to the case specified in Point h, Clause 2 of the Article, except that the weight of Heroin or Cocaine is from thirty grams to less than one hundred grams.

The laws governing heroin or cocaine are similar to those governing other drugs.

like

cases specified in the

c) Cannabis leaves, flowers, fruits or coca leaves weighing from twenty-five kilograms to less than seventy-five kilograms


This crime is similar to the case prescribed.

at point i clause 2 of the law, the only difference is the weight of leaves, flowers, and fruits.

Cannabis plants or coca leaves weighing from twenty-five kilograms to less than seventy-five kilograms. The determination of cannabis leaves, flowers, fruits or coca leaves is similar to the case prescribed in other laws on these drugs.

d) Dried opium fruit weighing from two hundred kilograms to less than six hundred kilograms.

This crime is similar to the case prescribed.

at point k clause 2 of the article, only different

in weight

medicine

Dried opium weighs from two hundred kilograms to less than six hundred kilograms. The determination of dried opium is similar to the provisions of other laws on this drug.

d) Fresh opium poppy weighing from fifty kilograms to less than one hundred and fifty kilograms

This crime is similar to the case prescribed.

at point l clause 2 of the law, the only difference is the weight of the drug.

Fresh opium weighing from fifty kilograms to less than one hundred years

ten kilograms. The determination of the fruit

Fresh opium is similar.

like

cases specified in other laws on this drug.

e) Other solid narcotics weighing from three hundred grams to less than three hundred grams

one hundred grams

This crime is similar to the case specified in Point m, Clause 2 of the article, except that the weight of the narcotic substances is different.

Other drugs in solid form with a weight of from The determination of other drugs

one hundred grams to under three hundred grams.

in solid state is similar to field

consistent with the provisions of other laws on these drugs.


g) Other liquid narcotics from two hundred and fifty milliliters to less than seven hundred and fifty milliliters

This crime is similar to the case prescribed.

at point n clause 2 of the law, the only difference is the weight of the narcotic substances.

Other drugs in liquid form from two hundred and fifty milliliters to less than seven hundred and fifty milliliters. The determination of other drugs in liquid form is similar to the provisions of other laws on these drugs.

h) Possessing two or more narcotic substances, the total quantity of which is equivalent to the quantity of narcotic substances specified in one of the points from point a to point g, clause 3 of this article.

This crime is similar to the case specified in Point n, Clause 2 of this Article, except that there are two or more narcotics whose total quantity is equivalent to the quantity of narcotics specified in one of the points from Point a to Point g, Clause 3 of this Article. Determining that there are two or more narcotics whose total quantity is equivalent to the quantity of narcotics specified in one of the points from Point a to Point g, Clause 3 of this Article is similar to the case specified in other articles on these narcotics.

4. Committing a crime in one of the cases specified in Clause 4, Article 194 of the Penal Code

a) Opium resin, cannabis resin or coca extract weighing five kilograms or more

This crime case is similar

like

case specified in

Point g, Clause 2, Point a, Clause 3 of the law, the only difference is that the weight of opium resin, cannabis resin or coca extract is from five kilograms or more. The determination of opium resin, cannabis resin or coca extract is similar to the case prescribed in other laws on these narcotic substances.

b) Heroin or cocaine weighing one hundred grams or more

This crime case is similar

like

case specified in

Point h, Clause 2, Point b, Clause 3 of the article, the only difference is that the weight of Heroin or Cocaine is one hundred grams or more. The determination

Heroin or cocaine are subject to similar laws regarding these drugs.

as provided in the articles

c) Cannabis leaves, flowers, fruits or coca leaves weighing seventy-five kilograms or more

This crime case is similar

like

case specified in

Point i, Clause 2, Point c, Clause 3 of the law, the only difference is that the weight of the leaves, flowers, fruits of the cannabis plant or coca leaves is seventy-five kilograms or more. The determination of the leaves, flowers, fruits of the cannabis plant or coca leaves is also


similar to the case prescribed in other laws on these drugs.

d) Dried opium fruit weighing six hundred kilograms or more

This crime case is similar

like

case specified in

Point k, Clause 2, Point d, Clause 3 of the law, the only difference is that the weight of the dried opium fruit is from six hundred kilograms or more. The determination of dried opium fruit is similar to the case prescribed in other laws on this drug.

d) Fruit

Fresh opium weighing from

one hundred and fifty

kilograms or more

This crime case is similar


like


case specified in

Point l, Clause 2, Point d, Clause 3 of the article, the only difference is the weight.

Fresh opium poppy weighing one hundred and fifty kilograms or more

The determination of fresh opium poppy fruit is similar to the provisions of other laws on this drug.

e) Other solid narcotics weighing from or more

three hundred grams

This crime case is similar

like

case specified in

Point m, Clause 2, Point e, Clause 3 of the article, the only difference is in weight.

other solid narcotics weighing three hundred grams or more.

The determination of other drugs in solid form is similar to the case prescribed in other laws on these drugs.

g) Other drugs in liquid form from seven hundred and fifty milliliters or more

go up;


This crime case is similar


like


case specified in

Point n, Clause 2, Point g, Clause 3 of the article, the only difference is that the weight of other drugs in liquid form is from seven hundred and fifty milliliters or more.

Determination of other drugs in liquid form is similar to the case

prescribed in other laws on these drugs.

h) Possessing two or more narcotic substances, the total quantity of which is equivalent to the quantity of narcotic substances specified in one of the points from point a to point g, clause 4 of this article.

This crime case is similar

like

case specified in

Point o, Clause 2, Point h, Clause 3 of the article, the only difference is that there are two or more

or more narcotic substances, the total quantity of which is equivalent to the quantity of narcotic substances specified in one of the points from point a to point g, clause 4 of this article. Determining the presence of two or more narcotic substances, the total quantity of which is equivalent to the quantity of narcotic substances specified in


One of the points from point a to point g, clause 3 of this article is similar to the case prescribed in other laws on these drugs.

Committing crimes in the cases specified in Clause 4, Article 194 of the Criminal Code.

criminal law

then the offender is

imprisonment

twenty years, life imprisonment

or death penalty is a particularly serious crime. Compared to Clause 4 of Articles 185c, 185d, 185e and 185e of the 1985 Penal Code, Clause 4 of Article 194 of the 1999 Penal Code is lighter, because the lowest level of the penalty is twenty years in prison compared to life imprisonment as prescribed in Clause 4 of Articles 185c, 185d, 185e and 185e of the 1985 Penal Code. At the same time, Article 194 of the 1999 Penal Code is also lighter than Articles 185c, 185d, 185e and 185e of the 1985 Penal Code. Therefore, the crime of illegally storing, transporting, trading or appropriating narcotics occurred before 0:00 on July 1, 2000 but was only handled after 0:00 on July 1, 2000. Article 194, Clause 4 of the 1999 Penal Code is applied.

As with other crimes, in addition to basing on the provisions of the Penal Code on deciding on penalties, if the offender only falls into one case specified in Clause 4 of the article, has many mitigating circumstances specified in Clause 1, Article 46 of the Penal Code, and has no aggravating circumstances, the Court may impose a sentence of less than twenty years in prison but not less than fifteen years in prison, because according to the provisions of Article 47 of the Penal Code, when there are at least two mitigating circumstances specified in Clause 1, Article 46 of the Penal Code, the Court may decide on a penalty below the lowest level of the penalty range, but must be within the adjacent lighter penalty range of the article. If the offender falls into many cases specified in Clause 4 of the article, has many aggravating circumstances and has no mitigating circumstances, is a person subject to severe punishment as specified in paragraph 2, Clause 2, Article 3 of the Penal Code, he or she may be sentenced to death.

As with Clause 4, Article 193 of the Penal Code, to specify the application of Clause 4, Article 194 of the Penal Code, the Council of Judges of the Supreme People's Court issued Resolution No. 01/2001/NQ-HDTP dated 15-

3-2001. According to this Resolution, when applying Clause 4, Article 194 of the Civil Code,

criminal offenses of illegal possession, transportation, trading or appropriation

Drugs to watch out for:

In case there are no aggravating circumstances and no mitigating circumstances or there are both aggravating and mitigating circumstances, but the aggravating and mitigating natures are assessed as equivalent, then

punish the offender with a sentence corresponding to the weight of the drug

as follows:

Punishable by twenty years imprisonment if:


- Opium resin, cannabis resin or coca extract weighing from 5 kilograms to less than ten kilograms;

- Heroin or cocaine weighing from one hundred grams to less than three hundred grams

grams;

- Cannabis leaves, flowers, fruits or coca leaves weighing seven or more

fifty-five kilograms to under two hundred kilograms;

- Dried opium fruit weighing from six hundred kilograms to less than one thousand five hundred kilograms;

- Fruit

Fresh opium weighing from

one hundred and fifty

kilograms to under four hundred and fifty kilograms;

- Other solid narcotics weighing from three hundred grams to less than nine hundred grams;

- Other drugs in liquid form from seven hundred and fifty milliliters to less than two thousand milliliters;

- There are two or more drugs, the total quantity of which is

equivalent to the amount of one of the above drugs.

Life imprisonment if:

- Opium resin, cannabis resin or coca extract weighing from kilograms to less than twenty kilograms;


ten


grams;

- Heroin or cocaine weighing from three hundred grams to less than six hundred grams


- Cannabis leaves, flowers, fruits or coca leaves weighing two hundred grams or more

kilogram to

- Fruit


Dry opium weighs from


one thousand five hundred

kilograms to under four thousand five hundred kilograms;

- Fruit

Fresh opium weighing from

four hundred and fifty

kilograms to under one thousand two hundred kilograms;

- Other solid narcotics weighing from nine hundred grams

under two thousand five hundred grams;

- Other drugs in liquid form from two thousand milliliters to less than five thousand milliliters;

- There are two or more drugs, the total quantity of which is

equivalent to the amount of one of the above drugs.


Death penalty if:

- Opium resin, cannabis resin or coca extract weighing ten kilograms or more;

- Heroin or cocaine weighing six hundred grams or more;


two


- Leaves, flowers, fruits weighing hundreds of kilograms or more;

cannabis plants or coca leaves weighing six

- Fruit

Dry opium weighs from

four thousand five hundred

kilograms or more;

- Fruit

Fresh opium weighing from

one thousand two hundred

kilograms or more;

- Other narcotics 100 grams or more;


in solid form weighing two thousand years

- Other drugs in liquid form from five thousand milliliters or more;

- There are two or more drugs, the total quantity of which is

equivalent to the amount of one of the above drugs.

Regarding the circumstance of "having two or more narcotic substances, the total quantity of which is equivalent to the quantity of narcotic substances specified in one of the points from..." specified in Point h, Clause 4, Article 194 of the Penal Code, it is calculated as follows:

Case 1:

If those drugs are all specified in the same point of Clause 4, Article 194, then add the weight of those drugs together and compare it with the weight guided above to consider what level of punishment the offender should be punished with.

For example: A person buys and sells 115 grams of Heroin and 125 grams of Cocaine. Since Heroin and Cocaine are both regulated in the same point b, clause 4, Article 194, the total weight of Heroin and Cocaine is 240 grams (115 grams + 125 grams = 240 grams). Compare with the weight given

As mentioned above, point b, clause 4, Article 194 must be applied to commit the crime with a sentence of 20 years in prison.

Second case:

punish people

If such narcotic substances are specified in different points of Clause 2, Clause 3, Clause 4, Article 194, the calculation of the total quantity of these narcotic substances equivalent to the quantity of one of the narcotic substances specified in Clause 4, Article 193 or in Clause 4, Article 194 shall be carried out in the following order:

Take each drug substance among the drugs that the offender has produced, stored, transported, illegally traded or appropriated as the standard. Calculate the weight of the remaining drugs among the drugs that the offender has stored, transported, illegally traded or appropriated corresponding to how many grams, kilograms or milliliters of the drug substance taken according to the minimum weight ratio of the drugs.

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