Comparison of Total Number of Cases and Total Number of Defendants Brought to Trial by the Court Regarding Articles 289, 290 and 291 of the Penal Code During a 5-Year Period (2008

Thus, through practical research on the trial of other crimes related to positions during the 5-year period (2008 - 2012) in Ho Chi Minh City, we can make the following observations:

Firstly , the total number of cases and the total number of defendants brought to trial by the Court for other crimes related to positions during the 5-year period (2008 - 2012) in Ho Chi Minh City is relatively small, only a total of 40 cases and 93 defendants.

Second , the total number of cases and the total number of defendants brought to trial by the Court for other crimes related to positions during the 5-year period (2008 - 2012) in Ho Chi Minh City mainly focused on three crimes: bribery (Article 289), bribery brokerage (Article 290) and taking advantage of influence over people in positions and powers for personal gain (Article 291). The remaining crimes had no cases and defendants brought to trial by the Court, including: the crime of negligence causing serious consequences (Article 285), the crime of intentionally disclosing work secrets; the crime of appropriating, trading or destroying secret work documents (Article 286), the crime of unintentionally disclosing work secrets; the crime of losing secret work documents (Article 287) and the crime of desertion (Article 288).

Third , the total number of cases and the total number of defendants brought to trial by the Court for other crimes related to positions during the 5-year period (2008 - 2012) in Ho Chi Minh City focused on three crimes, of which the crime of bribery accounted for the highest proportion with 30 cases and 60 defendants, the crime of acting as a bribery broker was 08 cases and 27 defendants, the crime of taking advantage of influence over people in positions and powers for personal gain was 02 cases with 06 defendants. Thus, if calculated in proportion, the crime of bribery accounted for 75% of the number of cases and 65% of the number of defendants in the total number of cases and defendants brought to trial by the Court for other crimes related to positions.

Fourthly , in addition, if compared with the trial situation, the three crimes brought to trial are mainly bribery, bribery brokerage and taking advantage of influence over people in positions of power for personal gain within 5 years.

(2008 - 2012) in Ho Chi Minh City in comparison with the whole country's trial of these three crimes during the corresponding period as follows:

Table 3.5. Comparison of the total number of cases and the total number of defendants brought to trial by the Court under Articles 289, 290 and 291 of the Penal Code during the 5-year period (2008 - 2012) in Ho Chi Minh City and the whole country

Thing

Ho Chi Minh City (I)		Nationwide (II)		Ratio (I)/(II)
Number of cases	Number of defendants	Number of cases	Number of defendants	Number of cases	Number of defendants
289	30	60	147	308	20.4 %	19.5%
290	08	27	14	38	57.1%	71.1%
291	02	06	22	33	09.1%	18.2%
Total	40	93	183	379	21.9%	24.5%

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Source: Office of Ho Chi Minh City People's Court

Thus, the rate of total cases and total defendants brought to trial for bribery is 20.4% of cases and 19.5% of defendants; the rate of bribery brokerage is 57.1% and 71.1% and the rate of taking advantage of influence over people in positions of power for personal gain is 9.1% and 12.8%. On average over the 5-year period (2008 - 2012), this rate is 21.9% of cases and 24.5% of defendants, generally high compared to other areas in the country.

Fifth , the total number of cases and the total number of defendants brought to trial by the Court for other crimes related to positions during the 5-year period (2008 - 2012) in Ho Chi Minh City, the penalty applied was mostly fixed-term imprisonment for defendants brought to trial by the Court, specifically: for the crime of bribery, 60 defendants were all sentenced to fixed-term imprisonment, for the crime of acting as a bribery broker, 27 defendants were sentenced to fixed-term imprisonment, and for the crime of taking advantage of influence over people with positions and powers for personal gain, 06 defendants were sentenced to fixed-term imprisonment.

In addition, no defendant was given a suspended sentence, and no defendant was exempted from criminal liability or punishment for these crimes.

Sixth , the total number of cases and the total number of defendants brought to trial by the Court for other crimes related to positions during the 5-year period (2008 - 2012) in Ho Chi Minh City, through examining some characteristics of the offenders' personal background, shows that: the number of male offenders for bribery is 49, the number of female offenders is 11; the crime of acting as a bribery broker has this ratio of 24 and 03; the crime of taking advantage of influence over people in positions and powers for personal gain has this ratio of 06 and 0.

In addition, the average age of defendants who committed bribery was 43.5 years old; of those who acted as bribery brokers was 45.7 years old; and of those who abused their influence over people in positions of power for personal gain was 53.2 years old. In addition, the personal history of first-time offenders for the three crimes brought to trial by the Court shows that all defendants committed their crimes for the first time.

Thus, through the above trial picture, it can be seen that, in general, the situation of other crimes related to positions in Ho Chi Minh City is not complicated, only the crime of bribery and the crime of acting as a bribery broker in the city under study has an increasing trend, for example: In 2010, the Court tried 01 case and 02 defendants for the crime of bribery, in 2011 this ratio was 02 and 09 and in 2012 this ratio was 04 and 11. In addition, trial practice also shows that most cases related to bribery crimes are related to three crimes - the crime of receiving bribes, the crime of giving bribes and the crime of acting as a bribery broker.

For example: The first instance criminal judgment dated September 7, 2012 of the People's Court of Ho Chi Minh City tried the first instance criminal case against the defendant Huynh Minh Duc (1976, residing in Ho Chi Minh City) and his accomplices for the crimes of receiving bribes, giving bribes and acting as a bribe broker.

Seventh , in addition, we have randomly researched a total of 120 judgments in the first nine months of 2013 of the People's Court of Ho Chi Minh City with the following results:

Table 3.6. Types of crimes and number of cases committed in Ho Chi Minh City through random research of a total of 120 sentences in the first nine months of 2013

Crimes in the Criminal Code	Number of cases
1	Crime of theft of property	22
2.	Crime of robbery	06
3.	Crime of extortion	02
4.	Crime of fraud and appropriation of property	07
5.	Crime of abuse of trust and appropriation of property	02
6.	Crime of robbery	07
7.	Crime of illegal drug trafficking	11
8.	Crime of intentionally causing injury or harm to health of others	14
9.	Rape	02
10.	Crime of prostitution brokerage	06
11.	Crime of consuming property obtained by another person through crime	02
12.	Crime of illegal possession of drugs	11
13.	Crime of failure to report crime	01
14.	Crime of disturbing public order	04
15.	Crime of resisting public officials	02
16.	Gambling crime	14
17.	Crime of violating regulations on vehicle control road	05
18.	Crime of bribery	01
19.	Crime of bribery	01
Total: 19 charges		120 cases

Also through the study of the practice of trying other crimes related to positions in Ho Chi Minh City in the period of 05 years (2008 - 2012), it shows that there are no major problems or limitations. However, we still point out some practical issues and limitations in the provisions of the current Penal Code on other crimes related to positions to make recommendations for improvement.

* Some problems and issues in trial practice:

Trial practice in general, trial practice in Ho Chi Minh City on other crimes related to positions in recent times shows that there are some problems and shortcomings as follows:

Firstly , the distinction between the crime of negligence causing serious consequences (Article 285) and the crime of negligence causing damage to State property (Article 144 of the Penal Code) is still confusing in practice.

For example: Judgment No. 121/HSST dated December 20, 2007: In 2007, Le Hong S. and Nguyen Hung T. were two employees of the Airport Cargo Services Joint Stock Company.

N. was assigned to be the employee who accepted the goods. According to the company's regulations, the person who accepts rare goods must be responsible for managing the goods in the warehouse, putting the goods in the safe and managing the safe key. At 11:15 a.m. on June 11, 2007, Le Hong S. and Nguyen Hung T. completed the procedures to import four packages of rare goods sent by V. Bank to Thailand, taking off at N. Airport at 2:45 p.m. the same day. Among these four packages, one weighed 16.6 kg, containing 190,000 USD; one weighed 12.4 kg, containing 4,000 USD and

16,558,000 JPY; one package weighs 10.5 kg, containing souvenirs and one package weighs 18.7 kg, presenting a precious wooden statue. All four packages were properly packaged and sealed according to regulations and went through full customs procedures. After re-checking and seeing that all the necessary information was present, Le Hong S. and Nguyen Hung T. reported and requested the forklift driver to lift the four packages into the rare goods storage area so that Le Hong S. and Nguyen Hung T. could open the safe and lock it, then go to the meeting.

team. At around 12:10 the team went to lunch, at 13:10 while doing the export procedures, the export staff opened the safe to transfer the goods and discovered that the 16.6 kg package was missing.

At the initial investigation agency, Le Hong S. and Nguyen Hung T. stated that they both actively stole the above mentioned package. On June 14, 2007, after being prosecuted for theft of property, Le Hong S. and Nguyen Hung T. changed their statements, not admitting that they hid the package to appropriate it, but claiming that someone else hid the package to harm the two people. At the same time, both only admitted that they were responsible for not following the procedures for managing rare consignments, leading to the loss of the goods. There are two different opinions on this case.

There is a view that Le Hong S. and Nguyen Hung T. committed the crime of irresponsibility causing serious damage to State property (Article 144 of the Penal Code). Because when receiving goods from bank V., Airport Cargo Services Joint Stock Company N. was the entity responsible for the above goods, so these four packages belonged to Airport Cargo Services Joint Stock Company.

N. Because of their failure to fulfill their responsibilities, Le Hong S. and Nguyen Hung T. lost a package worth 996,000 USD, which was State property. Therefore, the defendant's actions constituted the crime of negligence causing damage to State property under Clause 3, Article 144 of the Penal Code.

Another view is that Le Hong S. and Nguyen Hung T. committed the crime of irresponsibility causing serious consequences (Article 285 of the Penal Code). Because the amount of 190,000 USD has not been lost, the damage here is due to the irresponsible, negligent and negligent behavior of the defendants leading to having to search for the package, delaying the flight time, reducing the trust and reputation of customers towards the N Airport Cargo Services Joint Stock Company. The Investigation Agency, the Procuracy and the Court could not clarify the damage caused by the delay.

How much is the flight? Therefore, the defendant cannot be charged with the crime of negligence causing damage to state property. Therefore, the defendant must be prosecuted for the crime of negligence causing serious consequences. Furthermore, the defendants' act of secretly appropriating property has not been clearly determined.

Second, similarly, the determination of the crime of bribery (Article 289), the crime of bribery brokerage (Article 290) and the crime of fraud to appropriate property (Article 139 of the Penal Code) also has confusion in practice.

For example: Judgment No. 196/HSST dated January 17, 2008: In 2007, Nguyen Thi

H. proactively contacted and proposed to Nguyen Van D. (in the same city) about "running" for candidates to take the entrance exam to military officer schools. Although he is a military officer, Nguyen Van D. has no position or authority in military affairs. When H. suggested "running" for candidates to take the entrance exam to these schools, Nguyen Van D. said that he could do it. The two agreed to collect 40 million VND from each candidate taking the entrance exam to Officer School X. or Logistics School Y. and D. would give H. a percentage of the amount collected from the candidates. Because he believed that Nguyen Van D. would be able to help candidates get in, H. informed some acquaintances about his network of recruiting candidates to military and officer schools on the condition that those in need had to pay money before enrolling. Five people directly gave money to H. and three people indirectly gave money (through an intermediary) to H. with a total amount of up to 267 million VND to take care of eight cases of taking exams to military and officer schools. Of which, 197 million was given before the exam and 70 million would be given after the enrollment. After each time receiving money, H. called and agreed on the location and time to give money to Nguyen Van DH, who gave D. 180 million VND and kept 17 million VND. As for the 70 million VND, H. did not give it to D. because there was no way to meet D. After receiving 180 million VND, Nguyen Van D. did not take care of the candidates but used the money for shopping and entertainment.

When the candidates failed the exam, the case was discovered and arrested. Regarding this case, during the trial, there were many different opinions on the criminal behavior of Nguyen Thi H. (and Nguyen Van D. was tried for fraud and appropriation of property without any problem). Some opinions said that H. committed the crime of bribery; others said that H. committed the crime of acting as a bribery intermediary; and others said that H. committed the crime of fraud and appropriation of property.

We believe that, at the same time as giving money to Nguyen Thi H., the partners all made applications for their children to take the entrance exams to the Military and Officer Schools and these schools all received the application forms and registration numbers. Therefore, when giving money to H., they only provided the candidates' full names, dates of birth, hometowns, registration numbers... H. provided all of this information to D. The amount of 267 million that H. received was money given by individuals or families of eight candidates. In addition, when giving money to H., the people who gave money understood that, through H., the above amount would be given to the competent person that H. knew to help their children pass the entrance exams to the Military and Officer Schools as desired. Therefore, H. was only one of the links and the first link (from the recruiter's side) in the chain of "running" to the Military and Officer Schools. It must also be added that, although the Military Officer Schools were not corrupt, but with the way D. and H. informed, both H. and everyone who gave money understood that there was a “bribery” line in these Schools, and when giving money and the necessary information, H. and everyone believed that D. would use that money to bribe those on the list to “pass”. Therefore, H. was only an intermediary link, so prosecuting defendant H. for the crime of being a bribery broker was accurate and true to the nature of H.’s crime.

Third , regarding the issue of bribery and proactive reporting, how should it be handled, and whether criminal liability should be exempted or not?

For example: Mr. Nguyen Thanh G. represents his family in a lawsuit.