Crime of Fraudulent Appropriation of Property in Vietnamese Criminal Law from 1985 to Before 1999

Apply Decree No. 03 mainly, referring to the corresponding provisions of the Ordinance dated October 21, 1970 to better understand the signs of crimes and apply more appropriate penalties.

Thus, in the period from 1945 to before the 1985 Penal Code came into effect, criminal law had provisions on the type of crime of fraud to appropriate property, however, due to the many types of documents issued and applied in the two different regions of the South and the North, it was inevitable that there would be certain shortcomings, and the principle of legality would be difficult to implement. Therefore, it was necessary to codify the provisions in these legal documents to ensure consistency. The 1985 Penal Code, effective from January 1, 1986, was born to meet that requirement.

1.3.3. Crime of fraud and appropriation of property in Vietnamese criminal law from 1985 to before 1999

After the country was unified, realizing the position and role of criminal law in the fight against crime, protecting socialist order, protecting the independence, sovereignty, unity and territorial integrity of the Socialist Republic of Vietnam, protecting the interests of the State, the rights and legitimate interests of citizens and organizations, on June 27, 1985, the National Assembly voted to pass the Penal Code on the basis of codifying the principles and institutions of criminal law of our country before. For the first time, the Penal Code stipulated that the crime of open appropriation of property was defined as a crime stipulated in Article 131 (Crime of snatching or open appropriation of socialist property) and Article 154 (Crime of snatching or open appropriation of citizens' property), but in terms of legislative techniques, this crime was placed in the same article as the crime of snatching property with three different penalty frames corresponding to each aggravating circumstance. Accordingly, the crime of open appropriation of property is determined to have the same nature, characteristics and

dangerous to society similar to the crime of robbery, the only difference is in the criminal act described in the objective aspect of the crime; between these two crimes there are the same factors that increase criminal liability. This provision has created an important legal basis for the investigation, prosecution and trial of the crime of open appropriation of property, ensuring consistency in the application of the law on the fight to prevent and combat acts of open appropriation of property; overcoming the shortcomings and limitations in the practice of investigation, prosecution and trial of illegal acts of open appropriation of property but it is impossible to determine which component belongs to one of the crimes of infringement of ownership.

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Entering the period of renovation, with the abolition of the centralized and subsidized economic mechanism, the development of a multi-sector commodity economy, operating under the market mechanism, with the management of the State, following the socialist orientation, many economic sectors were established with many different forms of ownership, all economic sectors were equal before the law. At that time, the division of groups of crimes against property into violations of socialist property and violations of citizens' property according to the 1985 Penal Code proved to be no longer appropriate due to the multi-form nature of ownership. Moreover, in terms of legal signs, although these crimes are in two different chapters, they all have the same characteristics and nature, if any, the only difference is that the object and subject are the properties affected by the crime, whether they are owned by the State or by citizens, and in many cases, the offender cannot always determine whether the property belongs to the State or to citizens. In response to that request, on December 21, 1999, the National Assembly passed a new Penal Code replacing the 1985 Penal Code, according to which the crime of open appropriation of property is defined in Article 137 of the Penal Code as an independent crime on the basis of separation from the crime of robbery and does not distinguish between open appropriation of social property.

socialist and openly appropriating citizens' property as in the 1985 Penal Code, but merged into an independent crime. The merger clearly demonstrates the viewpoint of our Party and State in terms of law that there is no discrimination against economic sectors in society. On the other hand, it also meets the requirements set by trial practice in recent years, many acts of property infringement of economic units are jointly owned by many economic sectors such as: Joint Stock Companies, Enterprises with foreign investment capital, joint ventures, associations... but it is impossible to determine which economic sector the offender belongs to.

Compared to the 1985 Penal Code, Article 137 of the 1999 Penal Code has many amendments and supplements, especially regarding the circumstances that are factors in determining a crime; distinguishing the boundary between criminal behavior and behavior that is not yet criminally prosecuted - a fundamental difference compared to the 1985 Penal Code when regulating this crime. Regarding the penalty, Article 137 is more severe than the 1985 Penal Code (the highest penalty is life imprisonment, while Article 131 stipulates twenty years in prison, and Article 154 is fifteen years in prison). In terms of structure, the crime of open appropriation of property under Article 137 of the Penal Code is composed of 05 clauses (Articles 131 and 154 of the 1985 Penal Code on this crime only have 03 clauses). Clause 1 is the basic structure with a prison sentence of six months to three years (lighter than Clause 1, Article 131 and heavier than Clause 1, Article 154 of the 1985 Penal Code); Clause 2 has a prison sentence of two to seven years (lighter than Clause 2 of Articles 131 and 154 of the 1985 Penal Code); Clause 3 has a prison sentence of seven to fifteen years (lighter than Clause 3, Article 131 and equal to Clause 3, Article 154 of the 1985 Penal Code); Clause 4 has a prison sentence of twelve to twenty years or life imprisonment (a new penalty that Articles 131 and 154 of the 1985 Penal Code do not have). Additional penalties are stipulated in Article  13, p. 177  .

Chapter 2

LEGAL CHARACTERISTICS OF THE CRIME OF FRAUDULENT APPROPRIATION OF PROPERTY UNDER THE 1999 CRIMINAL PROCEDURE CODE

The crime of fraud and appropriation of property is regulated in Article 139 of the 1999 Penal Code, according to which this crime has the following legal characteristics:

2.1. Subject and object of the crime of fraud to appropriate property

2.1.1. Object

The object of a crime is an important element in the composition of a crime, reflecting the legal nature and nature, the level of danger of the crime, which is the basis for determining the social relationship violated by the criminal act and therefore is the basis for distinguishing crimes from each other. In legal science, the concept of the object of a crime is relatively unified in scientific works. The Vietnamese Criminal Law textbook of the Faculty of Law, Hanoi National University gives the following definition:

The object of a crime is the social relations protected by criminal law that are violated by the crime by causing damage or threatening to cause damage. Any crime violates the protected object of criminal law. Legal norms in the Part of Crimes of the Criminal Code often do not directly state the object of the crime, but the object can be determined by explaining the law, analyzing the content of specific norms regulating the crime, we can know the object of that crime.

In a class society, the ruling class always, through the State and the law, establishes and consolidates a system of social relations in accordance with the interests and domination of that class, and at the same time uses the law with different types of measures to protect these relations from the encroachment of criminal acts.

The socialist state promulgates criminal law to protect social relations that are important to the existence and development of the socialist regime, the legitimate rights and interests of organizations, citizens and social order. Social relations that are determined by the State to be protected by criminal law norms are the objects of protection of criminal law.

In criminal law science, it has been affirmed that an act is considered a crime by the State because it causes or threatens to cause significant damage to social relations protected by criminal law. In other words, the dangerousness of the act due to the violation of social relations protected by criminal law is the most important sign to determine whether that act is a crime or not. Therefore, the object of a crime is the social relations protected by criminal law that are violated by criminals. A social relationship that is violated but is not determined by the State to be protected by criminal law norms cannot be the object of a crime and the violation is not considered a crime.

The social relations protected by Vietnamese criminal law are those defined in Articles 1 and 8 of the Penal Code: independence, sovereignty, unity, territorial integrity of the Fatherland, infringement of the political regime, economic regime, culture, national defense, security, social order and safety, rights and legitimate interests of organizations, infringement of life, health, honor, dignity, freedom, property, other rights and legitimate interests of citizens, infringement of other areas of the socialist legal order [18].

The object of crime is an inseparable element of crime, crime always violates one or some social relations that are determined by the state to be protected by criminal law. The concept of object of crime clearly shows the class nature of criminal law, every state uses criminal law to protect social relations that are consistent with its interests and domination.

of the ruling class. Acts that violate these relationships are declared crimes by the State. The object of crime is also a basis for distinguishing crimes from non-criminal acts. Studying the concept of the object of crime, we fully and deeply perceive the tasks of criminal law and the nature of crime. In the section on crimes of the Penal Code, the object of crime is the most important basis for classifying crimes and the system of norms regulating completed crimes.

The object of the crime of property fraud is property ownership, which is the main social relationship that the act of property fraud violates.

Due to the nature of the act, this crime only affects one object, which is the property ownership relationship. This is the difference between the crime of fraud and appropriation of property and some other property crimes that simultaneously affect many different objects, such as robbery, snatching, kidnapping for the purpose of appropriating property, etc., because in addition to the object of the property relationship, the offender also targets another important object, which is the right to protection of the life and health of the victim.

Ownership is a relationship in which the right to possess, use and dispose of property is respected and protected. This relationship is damaged or threatened by crime through the change of the normal state of material objects (property) that are part of the ownership relationship.

Like all other crimes, the act of violating ownership also has a specific object of impact, which is property. "Property includes: objects, money, valuable papers and property rights" [21, Article 163]. Property is the object of the crime of fraudulent appropriation of property can be of any form of ownership recognized by law and must be expressed in material form, because what is not material cannot be the object of appropriation. Therefore, not all cases of property rights are the object of the crime of fraudulent appropriation of property.

For example: Copyright of a work is not the subject of the crime of fraud and appropriation of property, but documents showing property rights such as invoices for goods receipt... can still be the subject of the crime of fraud and appropriation of property in certain cases.

However, it should be noted that, due to the special features and uses of the property, some properties cannot be considered the subject of the crime of fraudulent appropriation of property, but are the subject of other crimes: For example: forest resources, construction works, means of transport, communications, drugs, military weapons, etc.

The law in general and criminal law in particular always protect legal ownership and only protect legal ownership, so in principle, the property protected by criminal law must be legal property. However, that does not mean that other illegal acts of encroachment on citizens' property are not considered crimes and are still considered illegal and may constitute the crime of fraud and appropriation of property.

For example: borrowing money from others but not paying it back, running away for a while to avoid rumors or fear that gangsters will come to take revenge... the above behavior can constitute the crime of fraud and appropriation of property.

2.1.2. Subjects affected by the crime of fraud and property appropriation

1. The subject of crime is a part closely linked to the object of crime, so when studying the object of crime, this part cannot be separated.

The object of a crime is a part of the object of the crime, when affecting this part, the offender causes damage or threatens to cause damage to social relations protected by criminal law. Criminal acts affecting parts of social relations are the object of the crime, changing the normal state.

of those parts, causing damage to the object of the crime. With such a point of view, there cannot be a crime without an object of action [14, p. 141].

Researching the object of the crime of fraud and appropriation of property cannot fail to research the object of the crime's impact because this "is a part of the object of the crime, affected by the criminal act to cause damage or threaten to cause damage to social relations protected by criminal law", or "are objects of the material world that the offender affects when committing the violation of social objects protected by criminal law"  8, p. 354  .

The crime of property fraud has an object of impact which is property, but not all property, but first of all it must be property with value and use value, that property must belong to a specific owner with legal provisions of possession, use and disposal, in addition, it must also be capable of being transformed between owners, can be bought, sold, and exchanged legally. That property can also include documents that if the offender has it, they can receive a certain amount of money or property... Emphasizing that property under the legal ownership of a certain owner is the object of this crime does not mean that acts of openly appropriating illegal property will not be handled.

Property is the subject of the crime of fraud to appropriate property with the following characteristics: a. Property is expressed in material form, has value and use value; is a measure of the value of labor that is calculated and must satisfy human needs; b. Property is the subject of the crime of fraud to appropriate property must have a specific owner with legal provisions expressing the right to possess, use, and dispose of property; c. Property is the subject of the crime of fraud to appropriate property must be capable of transformation between owners; d. Property is the subject of the crime of fraud

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