Crime of Repairing, Using Certificates and Documents of Agencies and Organizations Without Circumstances Determining Penalty

serious consequences caused by acts of modifying or falsifying passports, visas, household registration books, civil status books or other types of certificates and documents of agencies and organizations. However, through trial practice, we can refer to the Circular

Circular No. 02/TTLT-TANDTC-VKSNDTC-BCA-BTP dated December 25, 2012

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 of the Law on Civil Judgments.

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serious consequences to determine

Determine the serious consequences caused by the act of correcting or falsifying passports, visas, household registration books, civil status books or other types of certificates and documents of agencies and organizations, if the consequences are life, health or property.

If the consequences are not life, health and property, then it is necessary to assess the nature and extent of each specific case.

the behavior and the immaterial consequences caused by the crime to determine whether

whether it is a serious case or not.

It is not a mandatory sign if the act of correcting or falsifying passports, visas, household registration books, civil status books or other types of certificates and documents of agencies and organizations has not caused serious consequences but the person committing the act has been administratively sanctioned for this act and still violates it.

c. Other objective signs

For this crime, the legislator does not stipulate other objective signs as mandatory elements of the crime. However, when determining whether a person has committed this crime or not, the prosecuting agency and the prosecutor must base on each type of document that the law stipulates is subject to the impact of the crime or not.

4. Subjective signs of crime

Although not specified in the law, the offender committed this crime intentionally, that is, the offender knew that he was correcting or falsifying passports, visas, household registration books, civil status books or other types of certificates and documents of agencies and organizations and used those corrected documents to commit illegal acts but still did it, wanting or allowing serious consequences to occur or not caring about the consequences of that act.

Although the motive for the crime is not a mandatory sign, determining the motive of the offender is very important, if out of respect, because

local achievement

then the nature, level

dangerous to society other than

in cases of material gain or personal revenge or other base motive.

If the offender uses altered documents for the purpose of committing a crime, then depending on the case, the person who has altered or falsified the documents he has altered shall be prosecuted for criminal liability for the crime corresponding to the crime.

their crime

committed the crime of repairing and falsifying the passport

passport

household registration, household registration or other certificates and documents of agencies and organizations. For example: Bui Van D and his accomplices falsified the certificate of Ho Chi Minh City Customs to sell 12 smuggled cars from Cambodia to Vietnam, then D and his accomplices must be prosecuted for criminal liability.

on two crimes: the crime of "correcting and falsifying certificates of agencies and organizations"

"Possession of property acquired through criminal acts" and the crime of "receiving property obtained through criminal acts".

However, if the offender falsifies documents and then uses the falsified documents for the purpose of fraud and property appropriation, it is only necessary to prosecute.

criminal liability for the crime of "fraudulent appropriation of property" without

They must be prosecuted for the crime of "correcting or falsifying certificates of agencies and organizations" because the act of correcting or falsifying certificates of agencies and organizations is a means for criminals to commit crimes.

currently committing acts of fraud and appropriation of property, and still having documents and means for the offender to commit the crime.

has been

repair is

B. SPECIFIC CRIMINAL CASES

1. Crime of repairing, using certificates and documents of agencies and organizations without circumstances determining the penalty

This is a crime specified in Clause 1, Article 266 of the Penal Code, which is the basic element of the crime of modifying and using certificates and documents of agencies and organizations. Offenders may be subject to a warning, a fine of one million to ten million VND, and non-custodial reform of up to three years.

years or more

imprisonment from

six months to three years sentence, is a less serious crime

When deciding on a penalty, if the offender has many circumstances

mitigate

prescribed in Article 46 of the Code

criminal law, no aggravating circumstances

serious, may be subject to a warning or a fine of

The lowest penalty (one million VND); if there are no mitigating circumstances and no aggravating circumstances, the offender may be sentenced to non-custodial reform or a high fine (up to ten million VND); if the offender has many aggravating circumstances as prescribed in Article 48 of the Penal Code, without mitigating circumstances or if there are but the level of mitigation is insignificant, the offender may be sentenced to imprisonment. If the conditions prescribed in Article 60 of the Penal Code are met, the offender may be given a suspended sentence.

2. Committing crimes under the cases specified in Clause 2, Article 266 of the Penal Code

a. Organized

Committing the crime of repairing and using certificates and documents of an organized agency or organization is a case where many people intentionally discuss and collude closely with each other, outline a plan to repair or falsify the certificates of an agency or organization and use those documents to commit illegal acts, under the unified control of the leader.

Organized crime is a form of complicity with close collusion between those who commit the crime together (Article 20 of the Penal Code)8

In the case of repair, use of certificates and documents of agencies and organizations, depending on the scale and nature, may be

There are people who hold different roles such as: Organizer, facilitator

practitioner, instigator, helper.

In general, cases of repairing and using certificates and documents of organized agencies and organizations are often cases in which the repair is falsified using high technology such as using chemical erasers, with the role of each accomplice assigned.

b. Committing the crime multiple times;

Committing the crime of repairing or using certificates and documents of agencies or organizations many times is when a person repairs or falsifies passports, visas, household registration books, civil status books or other types of certificates and documents of agencies or organizations and uses those repaired documents to

8 See Dinh Van Que "Scientific commentary on the 1999 Penal Code, general part" Ho Chi Minh City Publishing House, 2000. pp. 121-141.

Committing an illegal act two or more times and each time committing the act constitutes the crime of repairing or using certificates and documents of agencies and organizations, but all of those crimes are tried in the same sentence.

When applying this circumstance, attention should be paid to:

- If the offender repeatedly corrects or falsifies passports, visas, household registration books, civil status books or other types of certificates and documents of agencies and organizations but only uses the corrected documents once to commit illegal acts, then he is not considered to have committed a crime multiple times. Similarly, if the offender repeatedly uses the corrected documents

repair to commit an illegal act but only one repair,

Falsifying passports, visas, household registration books, civil status books or other certificates and documents of agencies and organizations is not considered a repeated crime.

- If the defendant's act of repairing or falsifying passports, visas, household registration books, civil status books or other types of certificates and documents of agencies and organizations and using those repaired documents to commit illegal acts has been handled regardless of the form of handling such as: suspension of investigation, suspension of case, administrative penalty, disciplinary action... then that crime will not be counted as a subsequent crime to consider the defendant as having committed the crime multiple times.

- In case the act of repairing or falsifying passports, visas, household registration books, civil status books or other types of certificates and documents of agencies and organizations and using such repaired documents to commit illegal acts has been exempted from prosecution or not prosecuted by the Procuracy together with the act of repairing or falsifying passports, visas, household registration books, civil status books or other types of certificates and documents of agencies and organizations brought to trial,

or separated for processing

in the case

another sentence, or has been convicted by the Court but has

If the criminal record is cleared, those crimes will not be considered as repeated crimes.

- For those who commit the crime of repairing or using documents

certification and documents of agencies and organizations many times, but only once the offender is 16 years old, and the other times the offender commits the act when they are not yet 16 years old, it is not considered a multiple crime, because the other times their acts do not constitute a crime because they are not yet of age to bear criminal responsibility.

c. Causing very serious or especially serious consequences.

This crime is similar to the case of causing serious consequences, but the consequences here are very serious or especially serious consequences. Because there is no explanation or guidance on what constitutes very serious or especially serious consequences caused by the act of repairing or using certificates and documents of agencies and organizations,

should be possible

Refer to the instructions in the Circular.

No. 02/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 of the 1999 Penal Code.

on the case of consequences

serious to

determine the consequences

serious

serious consequences caused by the act of repairing or using certificates and documents of agencies and organizations, if it results in consequences to life, health or property.

If the consequences are not life, health and property, then it depends on each specific case to assess the nature and level of the behavior.

and of the consequences

immaterial damage caused by crime

determine whether to belong

case of very serious or especially serious consequences or not.

Committing the crime of repairing or using certificates and documents of agencies and organizations in the cases specified in Clause 2 of this Article, the offender may be sentenced to imprisonment from two to five years, which is a serious crime.

If the offender has many mitigating circumstances as prescribed in Article 46 of the Penal Code, without aggravating circumstances, Article 47 of the Penal Code may be applied and a sentence of less than two years in prison may be imposed; a suspended sentence may be imposed if the conditions prescribed in Article 60 of the Penal Code are met or the sentence may be changed to non-custodial reform; if the offender has many aggravating circumstances as prescribed in Article 48 of the Penal Code, without mitigating circumstances or if there are mitigating circumstances but the degree of mitigating circumstances is insignificant, he or she may be sentenced to five years in prison.

3. Additional penalties for offenders

In addition to the main penalty, the offender may also be fined from one million to five million VND; banned from holding positions, practicing a profession or doing certain jobs from one to five years.

When applying additional penalties to this offender, attention should be paid to

idea:

- The penalty of banning from holding a position shall only be applied if the offender has taken advantage of his/her position to alter or falsify passports, visas, household registration books, civil status books or other certificates and documents of agencies and organizations. The penalty of banning from practicing a profession shall only be applied to those who have

take advantage of the profession

my career to

repair, falsify passport, visa

identity card, household registration, household registration or other certificates and documents of agencies and organizations.

- Only apply a fine when a fine is not the main penalty.

11. CRIME OF FAKE OFFICE

STAMP,

MATERIALS OF THE INSTITUTION

Official, ancestress

Article 267. Crime of forging seals and documents of agencies and organizations

1. Who forged

seal, document or paper

other of the body

Any person who uses such seals, documents or papers to deceive agencies, organizations or citizens shall be subject to a fine of from five million to fifty million VND or imprisonment from six months to three years.

2. Committing a crime in one of the following cases shall be punishable by imprisonment from two to five years:

a) Organized;

b) Committing the crime multiple times;

c) Causing serious consequences;

d) Dangerous recidivism.

3. Committing a crime with very serious or especially serious consequences

serious, shall be sentenced to imprisonment from four to seven years.

4. The offender may also be fined from five million to fifty million Dong.

Define:

Fake

seal, document or paper

other of the body

An agency or organization is the act of making a seal, document or other paper of an agency or organization.

agency, organization similar to the real seal, document or other paper of the agency

that agency, organization or use that seal, document, or paper to deceive the agency, organization or citizen.

The crime of forging seals and documents of agencies and organizations is a crime separated from the crime of forging certificates and documents of state agencies and social organizations as stipulated in Article 211 of the 1985 Penal Code. However, Article 267 of the 1999 Penal Code has many amendments and supplements.

Article 211 of the 1985 Penal Code stipulates many acts, including acts stipulated in Article 266 of the 1999 Penal Code. At the same time, the crime name is also re-defined to match the criminal act.

Due to the amendments and supplements, Clause 1, Article 267 of the 1999 Penal Code was restructured to be consistent with the conduct specified in Point b, Clause 1, Article 211 of the 1985 Penal Code, and a few points were amended and supplemented, such as: using the concept of "document" instead of the concept of "letterhead" which is both accurate and consistent with the requirements of fighting against this type of crime in the current situation. In addition to amending and supplementing a number of points, the legislator also stipulated that a fine is the main penalty; abolished the penalty of non-custodial reform, and increased the minimum prison sentence from three months to three years to six months to three years.

Clause 2, Article 211 of the 1985 Penal Code is re-regulated in Clause 2, Article 267 of the 1999 Penal Code, but with the addition of the following circumstance:

“committing crimes many times; dangerous recidivism. However, regarding the punishment

The term specified in Clause 2, Article 267 is from two to five years, not up to

seven years as per Clause 2, Article 211 of the 1985 Penal Code. Additional structure

Clause 3 with circumstances causing very serious or especially serious consequences has a penalty range of four to seven years and Clause 4 stipulates additional penalties while Article 218 of the 1985 Penal Code does not stipulate additional penalties for this crime.

Compared to other crimes, this crime is structured relatively specially, because. If point a, clause 1, Article 211 of the 1985 Penal Code and Article 266 of the 1999 Penal Code stipulate: "correcting, distorting

household content

projection

real, household

household

certificate or other type of certificate

receipt and other documents of the agency

official, organization

function

and history

use of paper

that's real

committing illegal acts…”, then Point b Clause 1 Article 211 of the 1985 Penal Code and Article 267 of the 1999 Penal Code stipulate: “forging seals, documents or other papers of agencies, organizations or using such seals, documents, papers to deceive agencies, organizations or citizens”. Thus, if the content of passports, visas, household registration books is modified or distorted,

household registration or other certificates and documents of agencies and organizations

function without use

use of paper

that commits an illegal act, then

not constitute a crime, but if forging seals, documents or papers

other agencies and organizations without using that seal, document or paper

to deceive

official, organization

officials or citizens have also constituted a crime.

If an offender does not forge a seal, document or other paper of an agency or organization but uses that seal, document or paper to deceive an agency, organization or citizen, it also constitutes the crime of "forging a seal, document or other paper of an agency or organization". Such a provision is clearly unreasonable because, if the act of using a fake seal, document or paper to deceive an agency, organization or citizen is considered a crime, then this crime must be the crime of "using a fake seal, document or paper to deceive an agency, organization or citizen" and cannot be the crime of "forging a seal, document or other paper of an agency or organization". Hopefully, when the 1999 Penal Code is amended and supplemented, this issue will be reconsidered.

A. BASIC SIGNS OF CRIME

1. Signs belonging to the subject of the crime

The subject of this crime is not a special subject, as long as the person has the capacity to bear criminal responsibility and reaches an age prescribed by the Penal Code, he or she can become the subject of this crime. However, the offenders of this crime can also be people with positions and powers responsible for carving seals, managing seals, documents, and papers of the prosecuting agency or organization. For example: lending the seal of one's agency for others to make fake seals. If these people commit a crime, it falls under the case of "taking advantage of position and power to commit a crime" as prescribed in Point c, Clause 1, Article 48 of the Penal Code.

According to Article 12 of the Penal Code, only people aged 16 years or older can be the subject of this crime, because this crime in Clauses 1, 2 and 3 of the law does not have any case of being a very serious crime.

2. Signs belonging to the object of the crime

This crime is an infringement on the normal operation of agencies and organizations in the field of State administrative management of seals, documents or other papers. Protecting the safety of seals and documents and papers is also ensuring the normal operation of agencies and organizations in the field of State administrative management of seals and these types of documents and papers.

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