Crime of fraud and appropriation of property in Vietnamese Criminal Law - Based on practical research in Nam Dinh province

HANOI NATIONAL UNIVERSITY

FACULTY OF LAW

NGUYEN TIEN DUNG

CRIME OF FRAUDULENT APPROPRIATION OF PROPERTY IN VIETNAMESE CRIMINAL CODE – BASED ON PRACTICAL RESEARCH IN NAM DINH PROVINCE

MASTER'S THESIS IN LAW

A NOI - 2014

HANOI NATIONAL UNIVERSITY FACULTY OF LAW

NGUYEN TIEN DUNG

CRIME OF FRAUDULENT APPROPRIATION OF PROPERTY IN VIETNAMESE CRIMINAL CODE – BASED ON PRACTICAL RESEARCH IN NAM DINH PROVINCE

Major: Criminal Law and Criminal Procedure Law

Code: 60380104

MASTER'S THESIS IN LAW

Scientific advisor: Dr. TRAN VAN DUNG

HANOI - 2014

COMMITMENT

I hereby declare that this is my own scientific research work. The content of the thesis is honest and has never been published in any scientific work.

Thesis author

Nguyen Tien Dung

INDEX

COMMITMENT ..............................................................................................

TABLE OF CONTENTS.......................................................................................................... LIST OF ABBREVIATIONS..........................................................

LIST OF TABLES................................................................................................

INTRODUCTION 1

Chapter 1: SOME GENERAL ISSUES ON THE CRIME OF FRAUD AND THEFT OF PROPERTY IN VIETNAM 'S CRIMINAL CODE 9

1.1. HISTORY OF CRIMINAL LEGISLATION ON THE CRIME OF FRAUDULENT APPROPRIATION OF PROPERTY IN VIETNAMESE CRIMINAL LAW 9

1.1.1. From 1945 to before the birth of the 1985 Penal Code 9

1.1.2. From 1986 until before the comprehensive amendment of the Penal Code in 1999 12

1.1.3. Crime of fraud and appropriation of property in the comprehensive revision in 1999 18

1.1.4. Crime of fraud and appropriation of property in the 2009 amendment and supplement 21

1.2. CONCEPT AND LEGAL SIGNS OF THE CRIME OF FRAUDULENT APPROPRIATION OF PROPERTY IN THE CURRENT CRIMINAL CODE 22

1.2.1. Concept of crime of fraud and appropriation of property 22

1.2.2. Legal signs of the crime of fraud and property appropriation 24

1.3. DISTINGUISHING THE CRIME OF FRAUDULENT APPROPRIATION OF PROPERTY FROM SOME OTHER RELATED CRIMES 36

1.3.1. Distinguishing the crime of fraud to appropriate property from the crime of abuse of trust to appropriate property (Article 140 of the Penal Code) 37

1.3.2. Distinguishing between the crime of fraud and the crime of deceiving customers (Article 162 of the Penal Code) 38

1.3.3. Distinguishing between the crime of fraud and the crime of gambling (Article 248 of the Penal Code) 39

1.3.4. Distinguishing the crime of fraud from the crime of using computer networks, telecommunications networks, the Internet or digital devices to commit acts of property appropriation (Article 226b).40 Chapter 2: CRIMINAL RESPONSIBILITY FOR THE CRIME OF FRAUDULENT PROPERTY APPROPRIATION IN THE CURRENT CRIMINAL CODE AND THE PRACTICE OF INVESTIGATION, PROSECUTION AND TRIAL OF THE CRIME OF FRAUDULENT PROPERTY APPROPRIATION IN NAM DINH PROVINCE 42

2.1. CRIMINAL RESPONSIBILITY FOR THE CRIME OF FRAUDULENT APPROPRIATION OF PROPERTY IN THE 1999 PENAL CODE (AMENDED IN 2009) 42

2.1.1. Basic framework (Clause 1, Article 139) 43

2.1.2. First aggravating frame (Clause 2, Article 139) 43

2.1.3. Second aggravating frame (Clause 3, Article 139) 47

2.1.4. Third aggravating frame (Clause 4, Article 139) 48

2.1.5. Additional penalty 50

2.1.6. Judicial measures 50

2.1.7. Criminal liability for fraud and appropriation of property in special cases 51

2.2. PRACTICE OF INVESTIGATION, PROSECUTION AND TRIAL OF CRIMES OF FRAUD AND PROPERTY APPROPRIATION IN NAM DINH PROVINCE 54

2.2.1. Geographical, economic and social characteristics of Nam Dinh province that affect the situation of property fraud crimes 54

2.2.2. Results of investigation, prosecution and trial of fraud and property appropriation in Nam Dinh province from 2008 to 2012 58

2.2.3. Some characteristics of the crime of fraud and property appropriation in Nam Dinh province 61

2.2.4. Some characteristics related to criminal subjects 65

2.2.5. Area of operation 67

Chapter 3 : SOME PROPOSALS TO IMPROVE THE PROVISIONS OF THE CRIMINAL CODE AND IMPROVE THE EFFECTIVENESS OF APPLYING THE CRIME OF FRAUDULENT PROPERTY APPROPRIATION IN NAM DINH PROVINCE 69

3.1. SOME LIMITATIONS AFFECTING THE EFFECTIVENESS OF APPLYING THE CRIME OF FRAUD AND PROPERTY APPROPRIATION IN NAM DINH PROVINCE 69

3.1.1. Some shortcomings of the Penal Code 69

3.1.2 Inadequacies arising from the activities of law enforcement agencies 72

3.1.3. Inadequacies arising from legal propaganda and education 74

3.2. SOME PROPOSALS TO IMPROVE THE PROVISIONS OF THE CRIMINAL CODE AND IMPROVE THE EFFECTIVENESS OF APPLYING THE CRIME OF FRAUD AND PROPERTY APPROPRIATION IN NAM DINH PROVINCE 75

3.2.1. Completing the provisions of the Penal Code 75

3.2.2. Some proposals to improve the effectiveness of professional activities of prosecution agencies in Nam Dinh province in handling crimes of fraud and property appropriation 84

CONCLUSION 89

LIST OF REFERENCES 91

LIST OF ABBREVIATIONS

BLHS:

Criminal Code
Socialism:	Socialism
Court:	People's Court
Supreme People's Court:	Supreme People's Court
People's Procuracy:	People's Procuracy
Supreme People's Procuracy:	People's Procuracy
Board of Directors:	Council of Judges
TNHS:	Criminal liability

Maybe you are interested!

LIST OF TABLES

Table 2.1 : Comparison of the current situation of property fraud crimes with general crimes in Nam Dinh province 58

Table 2.2: Current status of prosecution, indictment, and trial of fraud and property appropriation crimes in Nam Dinh province 59

Table 2.3. Penalties applied to defendants who committed fraud and property appropriation from 2008 to 2012 in Nam Dinh province 600

Table 2.4: Statistical table of characteristics of subjects of fraud and property appropriation crimes in Nam Dinh province 66

Table 2.5: Age structure of people committing fraud and property appropriation crimes 67

INTRODUCTION

1. Urgency of the topic

Property and property ownership are among the most important and intimate rights of human beings and always receive special attention from legislators of any country. In different forms of society, the State uses measures to protect the legitimate property rights of humans and acts that infringe upon human property rights are subject to certain forms of legal responsibility such as: Responsibility for compensation, responsibility for returning objects and property in civil law or investigating, prosecuting and trying a person when they have committed a serious violation of property rights. Through assessing the act of infringing on human property rights as a crime and applying a penalty to the offender, the State always shows an uncompromising attitude of fighting against this type of behavior.

In Vietnam, immediately after the August Revolution in 1945, our State promulgated the Constitution and other laws to recognize and protect citizens' legitimate ownership rights, in which the provisions of criminal law play an important role. According to the current understanding, "Ownership is a system of legal norms promulgated by the State to regulate social relations arising in the field of possession, use and disposal of means of production, means of consumption, and other assets as prescribed by law" [37]. Thus, after the right to life and the right to freedom, ownership rights play a great role in human life. Following previous legal documents, the 1992 Constitution - the legal document with the highest legal value - all recognized:

The State develops a multi-sector commodity economy according to a market mechanism under State management in a socialist orientation.