or from buying, selling, or exchanging those things; or objects or money that the State prohibits from storing, using, or circulating. Specific analysis is as follows:
- Objects and money of the offender used to commit the crime: are objects and money owned by the offender or temporarily owned by the offender because the offender borrowed them from others and were used by the offender as tools and means to commit the crime [40, p. 291].
- Objects and money belonging to another person, if this person is at fault in allowing the offender to use them to commit a crime, then depending on the form of fault of the property owner in allowing the offender to use his/her objects and money to commit a crime, they may be returned, or partially or completely confiscated. Specifically:
+ If the owner of the property intentionally allows the offender to use his/her property to commit a crime, the property will be confiscated. In addition, the owner of the property may also be prosecuted for criminal liability according to the crime committed by the offender as an accomplice.
+ If the owner of the property unintentionally allows the offender to use his property to commit a crime, the property will be returned to the owner [40, p. 293].
- Objects and money that the criminal obtains through committing crimes or through buying, selling, or exchanging such things: are objects and money that are accumulated, purchased, or obtained through criminal activities. That means, if not through criminal activities,
If the crime is committed, the criminal cannot have that object or money.
- Objects and money that are prohibited by the State from being stored, used, or circulated, and used by criminals as tools, means of committing crimes, or as objects of crimes, such as drugs, explosives, toxic substances, radioactive substances, military weapons, etc. [21, p. 194]. Objects that are prohibited by the State from being circulated will be confiscated regardless of who owns them.
After the 1985 Penal Code came into effect and for a long time there was difficulty in applying the judicial measure of confiscating objects and money directly related to crimes due to the lack of consensus in theoretical viewpoints, then there was Official Dispatch No. 24/1999/KHXX dated March 17, 1999 of the Supreme People's Court on providing additional answers to a number of issues on the application of the law guiding the application of this measure. However, the scope of guidance is only in a specific case, which is the case of a person appropriating property in the form of money and then using that money to buy lottery tickets and winning prizes.
Section I - Point 3 of the official dispatch stipulates as follows:
According to Point b, Clause 1, Article 33 of the Penal Code, the Court decides to confiscate and add to the State budget "objects and money that the offender obtained through committing a crime or through buying, selling, or exchanging such things". In the case where a person appropriates property that is money and then uses that money to buy a lottery ticket and wins a prize, the prize money is the result of buying a lottery ticket, which is the case specified in Point b, Clause 1, Article 33 of the Penal Code; therefore, the Court decides to confiscate and add to the State budget.
The decision to confiscate this prize money and add it to the State budget is not only in accordance with the provisions of Point b, Clause 1, Article 33 of the Penal Code, but is also extremely necessary to combat and prevent crime.
1.4. COMPARATIVE STUDY OF THE MEASURE OF CONFISCATION OF PROPERTY AND MONEY DIRECTLY RELATED TO CRIMES IN VIETNAM'S CRIMINAL LAW WITH EQUIVALENT CRIMINAL ENFORCEMENT MEASURES IN THE CRIMINAL LAWS OF SOME COUNTRIES
Through studying the criminal laws of some countries in the world such as the French Republic, Sweden and Japan, we see that most countries have provisions on compulsory measures of confiscation of property related to crimes such as judicial measures of confiscation of objects and money directly related to crimes in the Vietnamese Criminal Code. However, due to many different reasons, the Criminal Code of each country has different provisions on the form and content of compulsory measures of confiscation of property related to these crimes. The selection of the above-mentioned countries for research is based on the source of documents and the ability to refer to the thesis author, and importantly, the criminal laws of these countries have clear similarities and differences, as well as criminal legislation experiences for reference in the process of perfecting the current 1999 Vietnamese Criminal Code.
1.4.1. Criminal Law of the French Republic
The 1992 French Penal Code does not provide for judicial measures, but in essence, the penalty of confiscation of property in the French Penal Code has many similarities with judicial measures.
Confiscation of objects and money directly related to crimes in Vietnam's criminal law.
The penalty of confiscation of assets of the French Republic LHS is stipulated in Article 131-21 of the French Penal Code of 1992.
* Regarding legal nature :
Confiscation of property in the French LHS is a special form of confiscation of property, regulated in two capacities:
- Is an alternative punishment for misdemeanors and minor crimes
type 5
- Is an additional penalty for most crimes prescribed
defined in the Penal Code.
* About the confiscated object :
Paragraphs 2 and 3 of Article 131-21 of the 1992 French Penal Code stipulate that the following subjects may be confiscated and added to the state fund:
- Objects that the offender used or intended to use in committing the crime;
- Objects are products of criminal acts;
- Subject of crime [3].
* On the principles of application :
In case the property is declared confiscated but in reality cannot be confiscated or cannot be shown, the Court will order the convicted person to pay an amount of money corresponding to the value of the confiscated property.
Through the study, it is possible to see the similarities and differences between the penalty of confiscation of property of the French LHS and the measure of confiscation of objects and money directly related to crimes of the Vietnamese
LHS Vietnam as follows:
* Alike:
- Firstly , they are all criminal coercive measures prescribed by the Criminal Code, which only appear when there is a crime committed by an individual.
- Second , both are measures that affect the assets and economy of the person being applied.
- Third , it applies in all cases where there is an object directly related to the crime.
- Fourth , the confiscated assets may be owned by the offender or owned by another person or be the property of the State.
- Five is , can be applied independently in certain cases.
- Sixth , only apply according to the order and procedures prescribed by the Criminal Procedure Code.
* Different:
Table 1.4: Comparison between the measure of confiscation of objects and money directly related to crimes in the Vietnamese Penal Code and the penalty of confiscation of property in the French Penal Code
Comparison criteria
Measures to confiscate objects and money directly related to crimes in LHS Vietnam | Penalty Confiscation of assets in the French LHS | |
1.Calculate | Confiscation of property and money | Confiscation of property is a |
substance | related to crime | hermaphrodite punishment. |
reason | crime is a measure | |
judicial |
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For all participants in the proceedings when there is a legal basis prescribed by criminal law. determined | Only applicable to convicted persons in particular, on the basis of a final judgment of conviction. law. | |
3. Legal consequences reason | The person to whom this measure is applied is not considered a criminal. is a criminal record. | The person subject to this penalty must serve a sentence. product |
4. Applicable jurisdiction | Applied by the Investigation Agency, the Procuracy or the Court, corresponding to each stage of the prosecution. criminal proceedings | Only the Court trying the specific criminal case has the authority to apply. |
5. Objects of confiscation | Only confiscate objects used in committing crimes, products of crimes, and subjects of crimes. No provision for confiscation of the object intended for use by the offender into crime | In addition to the objects used in committing the crime, the products of the crime, and the objects of the crime, the objects that the offender intended to use in committing the crime shall also be confiscated. |
6. Principles of application | There is no provision for converting non-confiscable items into numbers. corresponding money to take advantage of | In case the property is declared confiscated but in reality cannot be confiscated or can not be expressed |
2. Scope of application
collect. | The court shall order the convicted person to pay an amount of money corresponding to the value of the confiscated item. |
1.4.2. Swedish Criminal Law
The Swedish Penal Code does not prescribe judicial measures, but in essence, the special measure of confiscation of property in the Swedish Penal Code has many similarities with the judicial measure of confiscation of objects and money directly related to crimes in the Vietnamese Penal Code.
The Swedish LHS property confiscation measure is provided for in Chapter 36 (Articles 1 to 6) of the Swedish Penal Code.
* Regarding legal nature:
Asset confiscation in the Swedish LHS is a special measure applied to criminals.
* Regarding confiscation objects:
The court will confiscate the following property or items:
- Property obtained from crime;
- Objects received in payment of expenses incurred in connection with a crime, if the receipt of payment constitutes a crime under the provisions of the Criminal Code;
- Assets used as means in committing a crime or are products of that crime;
- Objects which, due to their nature and other circumstances, can be determined to have been used for criminal purposes;
- Objects intended to be used as weapons in committing a crime against life or health;
- An object intended to be used as an aid or instrument in a property crime and has been discovered [4].
Through research, we can see the similarities and differences between the special measure of confiscating assets of the Swedish LHS and the measure of confiscating objects and money directly related to crimes of the Vietnamese LHS as follows:
* Alike:
- Firstly , they are all criminal coercive measures prescribed by the Criminal Code, which only appear when there is a crime committed by an individual.
- Second , both are measures that affect the assets and economy of the person being applied.
- Third , it applies in all cases where there is an object directly related to the crime.
- Fourth , it applies to all participants in the proceedings when there is a legal basis prescribed by criminal law.
- Fifth , the confiscated assets may be owned by the offender or owned by another person or be the property of the State.
- Sixth , all are coercive measures other than punishment, and can be applied independently in certain cases.
- Seventh , only apply according to the order and procedures prescribed by the Criminal Procedure Code.
* Different:
Table 1.5: Comparison between the measure of confiscating objects and money directly related to crimes in the Vietnamese Criminal Procedure Code and the measure of confiscating property and money directly related to crimes in the Vietnamese Criminal Procedure Code.