Committing a Crime Under the Cases Specified in Clause 1, Article 295 of the Penal Code

A judge or jury can issue an illegal verdict by writing, announcing, or issuing a verdict knowing that it is illegal. However, if the verdict has just been written but not announced or issued, it is not considered a verdict.

The verdict is considered the final product of the investigation, prosecution and trial process, but it is the direct result of the trial activities of the Trial Council. Therefore, the direct responsibility for the verdict belongs to the members of the Trial Council. Because it is a "product", the verdict must be a document with enforceable value. If it has just been written (drafted) but has not been read or issued, it is not considered a "verdict", but only a draft verdict. In the case where the verdict has been passed in the deliberation room, has all the signatures of the members of the Trial Council, but for some reason the verdict has not been read or issued, the prosecuting agencies, participants in the proceedings and relevant agencies and organizations have not received it and all the decisions of the verdict have not been enforced, it is a case of attempted crime.

To make an illegal judgment, the Judge or Jury

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must be by different means, because the verdict is different from the decision.

A decision may be issued by one person, but a verdict is a document of a collective (a panel of three or five judges; if it is a final or retrial decision, it may be more). Therefore, to issue an illegal verdict without being detected, the offender must carry out many different tricks. For example, if only the presiding judge of the trial issues an illegal verdict, they must lie to the judges.

Other judges or use procedural

another lie to

the Jurors,

Another judge signed the judgment and the minutes of the deliberation.

In case the Judge has read an illegal verdict but then

When sentencing, because of fear of being held responsible, the verdict was revised (the verdict was

Even if the Judge issues an illegal judgment, he is still guilty of issuing an illegal judgment, because the judgment, although not yet issued, has been announced (declared), which means the act of issuing the judgment has been completed.

Related to the act of issuing an illegal judgment is the deliberation. According to the provisions of law, the deliberation is the basis for issuing a judgment; normally, the content of the deliberation is determined as the original document, if there is a difference between the judgment and the minutes of the deliberation, the basis is the minutes of the deliberation to determine. Therefore, if the Judge reads the judgment or issues an illegal judgment but the minutes of the deliberation are not illegal, only the Judge is responsible.

responsible for issuing an illegal verdict, while the Jury is not responsible for the illegal verdict. However, the act of deliberation and the minutes of deliberation are not the act of issuing a verdict. Therefore, if the Trial Council has just deliberated but has not issued a verdict, depending on the case, the members of the Trial Council will be prosecuted for criminal liability for the crime of issuing an illegal decision as prescribed in Article 296 of the Penal Code.

b. Consequences

Consequences are not a mandatory feature of this crime. However,

However, if consequences occur, depending on the case, the offender may be prosecuted under Clause 2 or Clause 3 of the law.

c. Other objective signs

For the crime of issuing an illegal judgment, in addition to the objective act, the legislator also stipulates a very important objective sign, which is the illegality of the judgment issued by the Judge or Jury.

A judgment considered illegal is a judgment whose content is not in accordance with the provisions of the Penal Code and the Criminal Procedure Code. In general, an illegal judgment is a judgment containing serious errors in the application of

applying the Criminal Code and seriously violating procedural law to the extent that

must appeal according to the appellate or cassation procedures as follows:

- Convicting a person who is known to be innocent or failing to convict a person who is known to be guilty.

- Improper application of provisions of the Penal Code in a more severe or less severe manner to the offender. For example: the offender falls under the provisions of Clause 3, Article 104 of the Penal Code but Clause 4, Clause 2 or Clause 1, Article 104 of the Penal Code is applied; incorrect application of the type of penalty or application of a penalty that is too severe or too light to the offender or a suspended sentence inconsistent with the provisions of Article 60 of the Penal Code; application of provisions of the Civil Code to resolve civil matters in criminal cases; incorrect application of judicial measures prescribed in the Penal Code;

- Causing damage to litigants in civil, marriage and family, economic, labor, and administrative cases. For example: Depriving a person of inheritance rights.

that according to the law on inheritance they have the right to inherit; divorce when not meeting the conditions prescribed by the law on marriage and family for divorce;

cancel

civil contract, economic contract

when those Councils do not violate

violating the prohibition; forcing the employer to take back the employee

The employer has legally forced the employee to quit the job in accordance with the labor law and labor contract; reject the plaintiff's request regarding an illegal administrative decision of the People's Committee, etc.

- Serious violations of procedural law during trial, deliberation and issuance of verdict.

Judges and Jurors in cases where they must refuse to hear the case

or being changed but still participating in the trial; trying in absentia a litigant not in accordance with the provisions of procedural law; at the trial not following the correct order of steps required to try a case.

4. Subjective signs of crime

A criminal who issues an illegal sentence commits his crime intentionally (direct intention), that is, the criminal is fully aware that his sentence is illegal, foresees the consequences of that act and desires the consequences to occur.

The law stipulates that “knowingly it is illegal” means that the offender must clearly know that the judgment he/she issues is illegal; if for objective reasons or due to poor professional qualifications, the Judge or Jury does not clearly know that it is illegal, then he/she does not commit the crime of issuing an illegal judgment.

Trial practice shows that there are many illegal judgments at different levels, including many judgments that were annulled by the Court of Appeal or the Court of Final Instance for re-investigation or re-trial, and there are even judgments that wrongly convicted innocent people, but most of the judges who issued these judgments

usually only

perception is due to awareness, due to level

profession

immature, but

No one admits to “knowing it was illegal”. However, in principle, there are cases where even if the Judge does not admit it, they can still be forced to “know it was illegal” such as: not conducting a trial but issuing a verdict; a participant in the proceedings was not present at the trial but the verdict stated that he was present; the People's Jury participating in the trial was Mr. A but the verdict stated that he was Mr. B; Minutes of the deliberation

unanimously sentenced to suspended imprisonment. etc.

The verdict says imprisonment but for

Although the law does not stipulate that motive is a mandatory sign of the composition of this crime, it does not mean that it is not necessary to determine the motive of the offender. Trial practice shows that the act of issuing an illegal judgment to the extent of being prosecuted for criminal liability all comes from bad motives such as for personal gain, for revenge or for other personal motives that cause serious damage to the interests of the State, the interests of agencies, organizations or the legitimate interests of citizens. Therefore, determining the motive of the crime is very important to determine the criminal's awareness of whether the judgment he issued was illegal or not.

However, there are also some cases where criminals, motivated by achievement, want to resolve the case quickly to reduce the rate of pending cases, such as the case of Nguyen Van Th, Deputy Chief Justice of the People's Court of AP district, province.

AG stated above. Based on the motive of the crime, it can be determined whether the offender knew that the sentence he issued was illegal or not.

If a judge or jury accepts a bribe and issues an illegal verdict, in addition to the crime of issuing an illegal verdict, they will also be prosecuted for the crime of accepting a bribe.

In practice, there are also cases of irresponsibility and failure to

When issuing a judgment, there was a mistake that required a final appeal, because the judgment was considered illegal, but the judge who issued the judgment was not prosecuted for criminal liability for issuing an illegal judgment.

law, but only

be punished

reason about

irresponsible behavior. For example: In the judgment

Criminal Appeal No. 1736/2005/HSPT dated October 19, 2005, recorded the trial panel including: The presiding judge is Mr. To Chanh Tr; the judges are Mr. Hoang

Van Tr, Mrs. Luong Ngoc Tr but in fact the presiding judge of the trial was Mr.

Hoang Van Tr, and the judges are Mr. Truong Vinh Th and Ms. Luong Ngoc Tr.

B. SPECIFIC CRIMINAL CASES

1. Committing a crime under the provisions of Clause 1, Article 295 of the Penal Code

According to the provisions of Clause 1, Article 295 of the Penal Code, the offender can be imprisoned from one to five years, which is a serious crime.

When deciding on the penalty for the offender under Clause 1 of Article

295 Sets

criminal law, if the offender is not motivated by

bad and yes

If there are many mitigating circumstances stipulated in Article 46 of the Penal Code, without aggravating circumstances or if there are, the degree of aggravation is insignificant, then the penalty may be applied to less than one year in prison, but not less than three months in prison; if the conditions stipulated in Article 60 of the Penal Code are met, a suspended sentence may be imposed. If the offender has bad motives and has many aggravating circumstances stipulated in Article 48 of the Penal Code, without mitigating circumstances or if there are, the degree of aggravation is insignificant, then the penalty may be up to five years in prison.

2. Committing crimes under the cases specified in Clause 2, Article 295 of the Penal Code

Clause 2 of the law stipulates only one circumstance as a factor in determining the penalty, which is causing serious consequences.

In case of an illegal judgment, which is a criminal judgment convicting an innocent person or not convicting a guilty person, it is possible to refer to the circumstances causing serious consequences due to the act of criminally prosecuting an innocent person or not prosecuting a guilty person to determine the serious consequences caused by the act of issuing an illegal judgment.

If an illegal judgment is issued that convicts an innocent person in one of the following cases, it is considered to have caused serious consequences:5

- A person who has been wrongly convicted and sentenced to up to five years in prison and is serving his sentence;

- People who are wrongly convicted and imprisoned, leading to health exhaustion, have a disability rate of 31% to 60%;

- Due to being wrongfully convicted, losing their jobs and main income affects their family life;

- The wrongly convicted person suffered damages from 50 million to 100 million VND;

For other illegal judgments (civil, marriage and family, economic, administrative, labor), please refer to Joint Circular No.

5 The criteria stated in Clauses 2 and 3, Article 295 of the Penal Code are only the author's personal opinions. When there are official explanations or instructions from competent authorities, such explanations and instructions must be used as a basis.

02/2001/TTLT-TANDTC-VKSNDTC-BCA-BTP dated December 25, 2001 of the Court

The Supreme People's Court, the Supreme People's Procuracy, the Ministry of Public Security, and the Ministry of Justice provide guidance on the application of a number of provisions in Chapter XIV "Crimes against property" of the Penal Code to determine the serious consequences caused by the act of issuing an illegal judgment. However, the serious consequences caused by the act of issuing an illegal judgment are not only material damages but mainly non-material damages, seriously affecting the reputation of the Court, making people no longer believe in justice. Practice shows that if a judge intentionally issues an illegal judgment, it will cause serious consequences that cannot be overcome overnight. For example: A judge cancels a house sale contract, causing tens of billions of dong in damage to the plaintiff, and the civil judgment is enforced for 5 years before it is discovered to be illegal. It is very difficult to remedy the consequences of the judge's illegal judgment, and in some cases, it is impossible to remedy the consequences.

Committing a crime under the provisions of Clause 2, Article 295 of the Penal Code, the offender may be sentenced to imprisonment from three to ten years, which is a very serious crime.

When deciding on a penalty for a criminal, it is necessary to consider what kind of sentence (criminal, civil, economic, etc.) the illegal sentence was.

labor, administrative). If it is not a criminal judgment convicting a person

If the person is not guilty or is not convicted of a crime and there are many mitigating circumstances as prescribed in Article 46 of the Penal Code, there are no aggravating circumstances or if there are, the level of aggravating circumstances is not significant, then Article 47 of the Penal Code can be applied with a sentence of less than three years in prison, but not less than one year.

If the offender is sentenced illegally, the criminal sentence is a conviction.

innocent person or not convicted of a guilty person and there are many aggravating circumstances as prescribed in Article 48 of the Penal Code, without mitigating circumstances

light

or if there is but the level

mitigate

insignificant, then it can be

punishable by up to ten years in prison. However, if the criminal sentence is illegal

But if it is not a case of convicting an innocent person or not convicting a guilty person, but only violating the procedure or causing material damage to the participants in the procedure, it is not considered a case of having to apply severe punishment.

3. Committing crimes in the cases specified in Clause 3, Article 295 of the Penal Code

Like Clause 3, Article 293 of the Penal Code, Clause 3 of the article stipulates two circumstances as factors in determining the penalty framework, which are causing very serious or especially serious consequences.

This crime case is similar.

for the case

prescribed in Clause 2 of the law, for illegal criminal judgments

body

refer to the incident

very serious or special

serious due to the act of prosecuting an innocent person to determine the very serious or especially serious consequences caused by the act of issuing an illegal judgment

If one of the following cases occurs, it is considered to cause very serious consequences:

- A person who was wrongly convicted and sentenced to imprisonment from five years to less than fifteen years and has served a prison sentence of more than five years;

- People who are wrongly convicted, imprisoned or detained, leading to health exhaustion with a disability rate of 61% or more;

- A person who was wrongly convicted and sentenced to imprisonment for up to five years and has completed his/her prison sentence;

- Wrongly convicted people suffer losses from 100 million to 200 million VND;

If one of the following cases occurs, it is considered to cause particularly serious consequences:

- A person who was wrongly convicted and sentenced to imprisonment from fifteen to twenty years, life imprisonment and has served a prison sentence of more than ten years;

- The wrongly convicted person committed suicide due to resentment or was imprisoned and died or was wrongly sentenced to death;

- The wrongly convicted person suffered damages of over 200 million VND;

For other illegal judgments, please refer to the Circular.

Joint Circular No. 02/2001/TTLT-TANDTC-VKSNDTC-BCA-BTP dated December 25,

2001 of the Supreme People's Court, the Supreme People's Procuracy, the Ministry of Public Security, and the Ministry of Justice guiding the application of a number of provisions in Chapter XIV

"Property infringement crimes" of the Penal Code to determine very serious or especially serious consequences caused by the act of issuing illegal judgments.

Committing a crime under the provisions of Clause 3, Article 295 of the Penal Code, the offender may be sentenced to imprisonment from seven to fifteen years, which is also a very serious crime.

When deciding on the penalty for an offender, if the consequences are very serious and there are many mitigating circumstances as prescribed in Article 46 of the Penal Code, there are no aggravating circumstances or if there are, the level of aggravation is insignificant, then Article 47 of the Penal Code can be applied with a sentence of less than five years in prison but not less than three years.

If the consequences are particularly serious and there are many aggravating circumstances specified in Article 48 of the Penal Code, there are no mitigating circumstances or if there are mitigating circumstances but the level of mitigating circumstances is insignificant, the penalty may be up to fifteen years in prison.

4. Additional penalties for offenders

In addition to the main penalty, the offender may also be banned from holding certain positions from one to five years.

The application of additional penalties to offenders is similar to that for cases of criminal prosecution of non-offenders as prescribed in Clause 4 of Articles 293 and 294 of the Penal Code. However, for Judges and Jurors who issue illegal judgments, in addition to being banned from working as Judges and Jurors, they may also be banned from working in judicial agencies. In general, for those who have committed this crime, after completing their prison sentences, they will never be recruited into law enforcement agencies or elected as People's Jurors or Military Jurors.

4. CRIME OF MAKING ILLEGAL DECISIONS

Article 296. Crime of making illegal decisions

1. Any person with authority in the activities of investigation, prosecution, trial, and execution of judgment who makes a decision that he/she clearly knows is illegal, causing damage to the interests of the State, the rights and legitimate interests of organizations and citizens,

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