Causes of Existence and Limitations in Resolving Cases of Property Robbery Crime

a series of other cunning tricks to achieve that goal such as finding ways to approach the asset manager, accessing the assets, creating loopholes for the asset manager to easily appropriate that asset...

In my opinion, the crime of robbery is expressed by the act of openly appropriating quickly.

In the case of Hoang Van Hoang, Mr. Hoang quickly and openly appropriated Ms. Chau's motorbike. H's actions showed signs of committing the crime of robbery as prescribed in Article 136 of the 1999 Penal Code.

The above is a specific case and different views on determining the crime, I myself have stated and on that basis analyzed some basic characteristics when determining the crime for some crimes against property. The above inconsistent crime determination is partly due to the way of defining the objective signs of the crime of robbery and the crime of open appropriation of property is not specific and clear. Therefore, I personally recommend that there should be clearer and more specific provisions of the Law.

Second, the application of aggravating circumstances is not accurate. In addition to the fact that there are cases where the determination of crimes is not consistent, there are still cases where the application of aggravating circumstances is not accurate. Research shows that the incorrect application of aggravating circumstances often focuses on a number of circumstances such as: "Organized crime", "Professional crime", "Causing serious consequences"... In many cases, there is no basis to assess what is "serious consequences", "very serious consequences", "especially serious consequences" or the incorrect assessment of the circumstance "organized crime".

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For example: At 11:00 a.m. on March 28, 2008, Nguyen Van An and Pham Van Bo were walking toward Pham Ngoc Thach Street. An discussed with Bo to rob the property of passersby, in which An was the driver and Bo was the one who found the "bait" and carried out the act of appropriation. At the intersection, Bo snatched the phone of Ms. Bui Ngoc Han but was chased and arrested by Ms. Han and passersby shortly after. [41]

There are two views on this case:

The first view is that An and Bo only committed a crime under Point d, Clause 2, Article 136 of the 1999 Penal Code with the aggravating circumstance of "using dangerous tricks", which is using a large-displacement motorbike to commit the act of snatching Ms. Han's property.

The second view is that An and Bo committed crimes under Point a, Point d, Clause 2, Article 136 of the 1999 Penal Code. And it is believed that An and Bo committed "organized crime" with the crime being committed based on An masterminding the incident, having discussed "snatching the phone" and in fact taking Ms. Han's phone.

In my opinion, the second viewpoint with the aggravating circumstance in Point a, Point d, Clause 2, Article 136 of the 1999 Penal Code is unreasonable. That is the circumstance of "organized crime". Because according to Clause 3, Article 20 of the 1999 Penal Code: "Organized crime is a form of complicity with close collusion between those who commit the crime together". "Organized crime" is characterized by a criminal group formed by one or several people who invite and gather with a long-term, sustainable direction of action. The act of An discussing with Bo to "snatch the phone" cannot be considered a form of crime with close collusion, with full preparation of means as well as sophisticated and cunning tricks. Although An and Bo discussed and assigned work, it was not a long-term, sustainable direction of action, nor did there exist a unified command relationship or a submissive relationship. Therefore, the second view that the case is a case of “organized crime” is incorrect and only considers this a case of simple complicity. Aggravating circumstances play an important role in deciding the punishment for crimes in general, and robbery in particular. The circumstances determine the level of danger of the crime, which is the basis for applying the punishment. Therefore, it is necessary to understand correctly and apply it accurately, avoiding speculation.

Third, the application of the main penalty is not appropriate. The problem of defining the crime is not consistent, the problem of applying aggravating circumstances in the crime of robbery is not accurate, leading to the consequence that the application of the main penalty is not appropriate.

“ If an error in sentencing makes the decision about a punishment that is not appropriate to the act committed, causing the defendant to suffer legal consequences that he or she should not have suffered, then that error has grossly violated the legitimate interests of the convicted person .”

Even in the example of the inconsistent sentencing of the case of Mr. Hoang Van Hoang mentioned above, if Mr. Hoang is tried according to the viewpoint in Article 137 of the 1999 Penal Code for the crime of "Crime of open appropriation of property" or according to the viewpoint in Article 139 of the 1999 Penal Code for the crime of "Crime of fraud to appropriate property", the punishment that Mr. Hoang must suffer will be different from the punishment that Hoang must suffer for the crime of "Crime of property robbery" according to Article 136 of the 1999 Penal Code. This is not consistent with the criminal acts committed by the defendant as well as affects the rights and interests of the people involved. Therefore, in practice, it is necessary to have appropriate legal provisions to help determine the crime as well as apply the correct framing circumstances, so that legal decisions can be made.

2.3.2. Causes of existing problems and limitations in resolving cases of property robbery

Firstly, the provisions on the crime of robbery in Article 136 of the 1999 Penal Code are not yet complete.

Our State is very interested in directing the fight against the crime of property snatching and has issued many documents to direct the fight against this crime. The 1999 Penal Code has quite detailed regulations on the crime of property snatching, the circumstances of determining the crime, the aggravating framework as well as very strict penalties. However, the provisions of the 1999 Penal Code on the crime of property snatching still have problems, causing difficulties in understanding and applying the law in specific practices. This is reflected in the lack of a legal definition of this crime, the lack of clear description of the characteristic legal signs of the crime, which can easily lead to confusion in the process of determining the crime...

Second, there is no timely and consistent guidance and explanation on problems related to the application of the provisions of the Penal Code, including the provisions on the crime of property robbery.

Third, the staff of the prosecution agencies is still lacking and weak.

The investigation agency still lacks forces at the grassroots level. The qualifications and capacity of the team of investigators and detectives are still limited, the organizational structure of the investigation agency is still unreasonable, cumbersome, overlapping, leading to inefficiency. The coordination between the investigation agency and the detective agencies of the People's Police force at all levels is not smooth and tight during the investigation process.

The number of prosecutors at all levels and judges at criminal courts at all levels is still insufficient. Some of them have poor professional qualifications, low social knowledge, low political theory and no additional training mechanism, failing to meet the requirements of prosecution and trial work. In particular, the ability of the Procuracy and the Court to investigate and debate openly in court is still limited.

The number of cases to be resolved is large, while the number of judges is not enough, some judges also have to hold other jobs or attend political training courses, advanced professional training, which creates great pressure for officials and judges in resolving cases [46]. The force is thin, many people have not received basic and specialized professional training. Key positions in the region are assigned forces, however, due to the thin force, it is often not possible to control the entire crime situation in the area. The professional expertise of the functional force is still weak and uneven, making it very difficult to inspect and detect the increasingly complex tricks of criminals. Technical means and equipment for the force are lacking and outdated, leading to the force not being able to promptly handle criminals.

The responsibility of some civil servants in the process of performing their duties has not been properly promoted. The organization and management of trial work and unit operations at some Courts are not reasonable; Some Chief Justices only focus on resolving cases and do not spend reasonable time on leadership work, so they have not had timely measures to promote case resolution and organize lessons learned from mistakes to improve trial quality.

Some officials are still irresponsible, deferential, opportunistic... or have a tendency to

Avoidance and shirking of duties. The absorption and application of science and technology is still slow. Some officials in the judicial sector do not know about the internet, fax, or even how to use computers or photocopiers.

Fourth, the coordination between the agencies conducting the proceedings is still limited due to differences in professional capacity and qualifications, and conservative thinking that sometimes hinders and restrains each other. This problem occurs very often, causing difficulties in the process of resolving cases, affecting the relationship between sectors in criminal proceedings. The coordination of other agencies and organizations is sometimes not timely, causing the case to drag on; many parties do not have a cooperative attitude towards the Court in terms of proceedings during the case resolution process. [46]

Fifth, the facilities of the prosecution agencies are still lacking, many offices and courtrooms are still very shabby. In the prosecution activities, the judicial agencies still use manual methods, there is little application of science and technology from receiving information, processing information, storing information, preserving records... to statistical reporting, thus affecting the assessment of the crime situation, setting policies and directions for the fight against crime. Low treatment and cooperation regimes affect the results of investigations.

Difficulties and limitations in funding, facilities, and means of the forces, and the unclear mechanism for handling allocated funds are also the causes of the above limitations.

CONCLUSION OF CHAPTER 2

The situation of property snatching across the country as well as in Ho Chi Minh City has been complicated and tends to increase in scale and nature of each case. The property that criminals snatch is light property such as: watches, gold chains, earrings, handbags, mobile phones... Criminals use many sophisticated methods and tricks to appropriate property.

Local authorities and agencies have applied many preventive measures and actively fought against this type of crime such as:

Strengthening patrol and control work of the police and criminal police forces... Focusing on grasping the situation of the area and the subjects, especially in areas and gathering places with complicated security and order; Organizing peak periods of crime prevention and control... but the results achieved are not high. The causes of limitations and shortcomings in the fight against property robbery are due to the fact that the forces directly fighting against property robbery are still small, with limited professional qualifications; there is no close coordination with each other in crime prevention and control; the handling of robbery cases is not timely and thorough; There have been no active and effective measures to propagate and educate the law, nor have there been appropriate social policies to improve the material and spiritual life of the people in general and in Ho Chi Minh City in particular... Therefore, in order to effectively combat and prevent property robbery in the area, it is necessary to flexibly apply criminal, administrative, economic, social measures... in conjunction with the specific conditions of the locality.

Chapter 3

NEEDS AND SOLUTIONS TO IMPROVE THE REGULATIONS ON THE CRIME OF THEFT IN THE 1999 CRIMINAL CODE AND IMPROVE THE EFFECTIVENESS OF IMPLEMENTATION

3.1. NEED TO CONTINUE TO IMPROVE THE PROVISIONS ON THE CRIME OF THEFT IN THE 1999 CRIMINAL CODE AND IMPROVE THE EFFECTIVENESS OF IMPLEMENTATION

After our country transformed from a centrally planned economy to a market economy regulated by the State, the crime situation also changed in quantity, scope, nature and level, causing negative impacts on political security, social order and safety, and negatively affecting the investment and business environment.

The fight against the crime of property robbery is the State's synchronous implementation of measures in all economic, political, ideological, legal and cultural aspects to gradually prevent, repel and eventually eliminate the crime of property robbery from social life. In which, the completion of the provisions of the Criminal Code on the crime of property robbery is one of the most important tasks demonstrating the power of the State and the deterrence for the whole society.

The history of the formation and development of the Criminal Code in general and the Crime of Property Robbery in particular, which began in 1946 until now, is a process of continuous development and change. Up to now, in response to the requirements of continuing to comprehensively innovate the country in all areas of social life, including perfecting the Criminal Code system in the context of building a socialist rule of law state, the issue of the Crime of Property Robbery needs to be further studied and perfected.

To continue to improve the Penal Code in general and the Crime of Property Robbery in particular in the process of judicial reform, it is necessary to comprehensively research and analyze, on the one hand, specifically institutionalize the Party's policy on judicial reform as set forth in Resolution 48 and Resolution 49 of the Politburo, and at the same time, inherit the historical values of the previous judicial system that regulates the Crime of Property Robbery and is closely linked to reality.

of the country, in the condition of continuing to build a socialist rule of law state, a state of the people, by the people and for the people.

Therefore, to continue to improve the regulations on the Crime of Property Robbery in the Vietnamese Penal Code according to the requirements of judicial reform and in accordance with reality, the following requirements must be met:

3.1.1. In terms of politics and society

Nowadays, along with the trend of international economic integration and diversification of international relations, improving the effectiveness of law enforcement is an extremely important task, which has been and is being set forth by our Party and State in the goals and directions for the development of our country until 2020.

However, many pressing issues require the State to promptly resolve such as: the growing gap between the rich and the poor, population growth, energy scarcity, resource depletion, natural environment destruction, global climate change, global warming, dangerous epidemics, social evils and crimes, traffic jams and traffic accidents... leading to difficulties in economic development and changes in social structure.

Therefore, the Resolution of the 11th National Congress of the Communist Party in 2011, Resolution No. 49/NQ-TW dated June 2, 2005 on " Judicial Reform Strategy to 2020 " of the Politburo clearly stated: "Promote the implementation of the Judicial Reform Strategy to 2020, build a clean and strong judicial system, protect justice, respect and protect human rights. Perfect policies and laws on criminal, civil, judicial proceedings and on the organization of judicial agencies, ensure scientific and synchronous nature, promote independence, objectivity, and compliance with the law of each agency and judicial position..."[14]

Faced with the country's common difficulties and challenges, research to make recommendations for improving the Penal Code in general and the crime of property robbery in particular is a necessary requirement.

3.1.2. In terms of criminal legislation

On September 6, 2012, the Prime Minister issued Decision No.

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