Crime of taking advantage of position and power while performing official duties according to Vietnam's Criminal Law

In organized crime cases, there is a division of roles and specific tasks among accomplices. Even in cases where all accomplices have a direct role in committing the crime (executive role), there is also a division of specific tasks among them in committing the crime, in which one accomplices perform the task of directing and supervising the other accomplices and the other directly commits the crime.

In addition to the sign of "tight organization", to admit that the crime is organized, there must also be a sign of "unified planning". This attribute of the form of organized complicity is shown in the fact that, in organized crime cases, the accomplices always commit crimes according to a pre-planned unified plan. Therefore, before committing a crime, organized criminals often discuss and calculate carefully and thoroughly in all aspects (from preparing to commit the crime to committing the crime, even concealing the crime, evading the law) to unify actions. This shows that organized crime is always a form of pre-planned complicity.

Thus, tight organization and unified planning are two signs showing close collusion between accomplices in organized crime.

In summary, with the above characteristics, organized crime should be understood as "a special form (method) of crime in which many people intentionally collude closely with each other, discuss together, assign roles and tasks, and plan to commit crimes, under the unified control of the leader" [38, p. 34].

With such nature, organized criminals are more likely to commit crimes continuously, many times, many types of crimes in a more sophisticated and daring manner, causing major or especially major consequences. Therefore, the danger to society of organized crime is often higher than that of ordinary accomplices. Due to the high danger to society, crimes can be

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The organization stipulated in the Penal Code is an aggravating circumstance of criminal liability (Article 48) or an aggravating circumstance defined in 78 articles of the Criminal Code.

According to the above provisions, taking advantage of one's position and power while performing official duties in an organized manner is a case where there is close collusion between those who commit the crime together, including the organizer, the executor, the instigator, and the accomplice. However, not all cases of taking advantage of one's position and power have all the above roles. Depending on the case, there may only be an organizer and an executor without an instigator or an accomplice... but there must be an organizer and an executor to be considered an organized crime.

In this crime, organization is demonstrated between people with positions of authority who collude closely with each other to agree to commit the crime, but not in all cases the offender is a person with a position of authority.

For example: In the case of abuse of position and power while performing official duties that occurred in Yen Ninh village, Hien Ninh commune, Soc Son district, Hanoi city: From 2008 to 2013, Tran Van Sang was the Party cell secretary, Nguyen Thanh Chuong was the deputy party cell secretary and head of Yen Ninh village, Hien Ninh commune, Soc Son district, Hanoi city, Nguyen Van Tam, Ta Van Huy were the deputy heads of Yen Ninh village and Nguyen Huu Tru was a citizen of Yen Ninh village without the authority to sell or exchange land. However, during the process of holding the assigned positions, the defendants Sang, Chuong, Huy, and Tam took advantage of their positions, discussed and agreed to organize a meeting of the people, then assigned specific tasks and responsibilities to each person from land measurement, land allocation, money collection, and then arbitrarily spent all the collected money to build projects including concrete roads, drainage ditches, water pump repairs... and other activities of Yen Ninh village.

Specifically: In 2008, defendant Chuong proposed to defendant Sang to sell 12 interspersed plots of land, land for resettlement, and land in Yen Ninh village to raise funds for building concrete roads, drainage ditches, and other activities of Yen Ninh village. Defendant Sang agreed, so he held a Party cell meeting and issued a Resolution, then assigned Chuong to proceed with the land sale as planned. On that basis, Chuong assigned Huy and Tam, Deputy Village Chiefs, to carry out the work and appointed Tru as treasurer. During the implementation of the plan, the defendants sold 11 plots of land and exchanged 1 plot of land to collect 859,300,000 VND. In this case, defendant Sang and defendant Chuong were the initiators, defendant Huy and defendant Tam were the active practitioners, and defendant Tru, although not a person with a position, directly participated in collecting and spending money from selling land to the above defendants, so defendant Tru was an accomplice in the role of an assistant. On May 6, 2014, the People's Court of Soc Son district, Hanoi city brought the case to public trial and declared the defendants Tran Van Sang, Nguyen Thanh Chuong, Nguyen Van Tam, Ta Van Huy, Nguyen Huu Tru guilty of the crime of abusing their positions and powers while performing official duties according to Point a, Clause 2, Article 281 of the Penal Code and applied penalties commensurate with the defendants' criminal acts [40].

1.5.2.2. Repeated offenses

The circumstance of "Committing a crime many times" in the Vietnamese Penal Code is stipulated as an aggravating circumstance of criminal liability as prescribed in Article 48 of the Penal Code and is a circumstance determining the penalty in many crimes as prescribed in the articles in the Part of Crimes of the Penal Code, including the crime of taking advantage of position and power while performing official duties as prescribed in Article 281 of the Penal Code.

According to the provisions of Joint Circular No. 01/1998/TANDTC-VKSNDTC-BNV of the Supreme People's Court, the Supreme People's Procuracy, the Ministry of Home Affairs (now the Ministry of Public Security) dated January 2, 1998 guiding the application of a number of provisions of the Penal Code amending and supplementing a number of articles of the Penal Code:

… The circumstance of “committing a crime multiple times” stipulated in Clause 2, Article 133, Clause 2, Article 134a… (for some crimes of a corruption nature and crimes related to sex) is understood to mean that there have been two or more such crimes (two or more crimes of embezzlement, two or more crimes of taking advantage of one’s position and power to defraud and appropriate socialist property, etc.) and each crime has all the elements stipulated in Clause 1 of the corresponding article, and at the same time, in those crimes, no criminal liability has been prosecuted and the statute of limitations for criminal liability has not expired. In this case, the offender shall be criminally responsible for the total value of the property of the crimes combined, if the law stipulates the value of property or property damage [49].

According to author Dinh Van Que: Committing a crime multiple times is "committing a crime two or more times such as two thefts, two frauds, three prostitutions, four embezzlements... and each time the act is committed constitutes an independent crime but all of those crimes are tried in the same sentence..." [28, pp. 25-26].

According to Dr. Le Van Cam: "Committing a crime multiple times means committing two or more crimes that are regulated in the same article (or in the same clause of the article) in the corresponding part of the Penal Code, at the same time, the statute of limitations for criminal prosecution is still in place for those crimes and the offender has not yet been tried..." [5, p. 391].

Thus, it can be seen that a multiple crime is a crime committed by a person who has committed two or more crimes, affecting the same subject or many different subjects; if each individual crime is separated, each of those crimes has sufficient elements to constitute an independent crime; all of those crimes are regulated in a specific article in a separate part of the Penal Code; those crimes have not expired the statute of limitations for criminal prosecution, and have not been prosecuted by the competent authority.

The offender shall be held criminally liable for the total value of the property of the crimes committed by the competent authority in accordance with the provisions of law and shall be tried at the same time in the same case (declared in the same judgment); if the law stipulates the value of property or property damage, the offender shall be criminally liable for the total value of the property of the crimes committed together.

Abuse of position and power while performing official duties is considered a multiple crime if there are two or more abuses of position and power while performing official duties and each time constitutes a crime, regardless of the time interval between the first offense and the subsequent offense, and those offenses are still within the statute of limitations for criminal prosecution. However, it is only considered a multiple crime if all of those offenses have not been handled (disciplined, administratively sanctioned or prosecuted for criminal liability). If in those offenses there have been disciplinary actions, administrative sanctions or criminal prosecution, it is not counted to determine the crime of abusing position and power while performing official duties with the circumstance of committing multiple crimes.

For example: In the case of abuse of position and power while performing official duties that occurred in Ha Lam 2 village, Thuy Lam commune, Dong Anh district, Hanoi city: Do Xuan Ha is the head of Ha Lam 2 village according to Decision No. 71 dated December 6, 2003 of the People's Committee of Thuy Lam commune and Hoang Thi Thang is the deputy head of Ha Lam 2 village according to Decision No. 72 dated December 8, 2003 of the People's Committee of Thuy Lam commune. Accordingly, the defendants only have the authority to manage the people's organization in the village to implement the policies of the Party and the State, manage temporary absences, temporary residence and organize village conferences. The defendants did not have the authority to fill in lakes and transfer land managed by the commune, but in 2005 and 2006, they took advantage of their positions as village chief and deputy head to organize the filling of Ong Bau and Ong Dieu lakes, then sold them to people in need to get money to pay for filling the lakes, building roads, and upgrading schools. The defendants' actions constituted the crime of abuse of power.

duties and powers while performing official duties according to Article 281 of the Penal Code. The defendants leveled two lakes in 2005 and 2006 and sold land to many people, thus violating the criteria for committing the crime multiple times according to Point b, Clause 2, Article 281 of the Penal Code [43].

1.5.2.3. Causing serious consequences

Taking advantage of one's position and power while performing official duties, causing serious consequences, is causing damage to the State, society and people. Unlike some crimes stipulated in the chapter on crimes related to positions, the legislator stipulates causing other serious consequences, this crime only stipulates causing serious consequences. However, as analyzed about crimes with other serious consequences, serious consequences and other serious consequences are not the same, but in practice, in specific cases, it must be accepted as one and also depends on the specific crime to understand and determine the circumstances of causing serious consequences or causing other serious consequences appropriately. Up to now, the guidance on this circumstance in some crimes has been given attention, but not all criminal cases can apply or refer to those guidelines to determine the circumstances of causing serious consequences. However, it can be considered as causing serious consequences due to the act of abusing one's position and power while performing official duties if:

Kill a person;

Causing injury or damage to the health of 1 to 2 people with each person's disability rate from 61% or more;

Causing injury or damage to the health of 3 to 4 people with each person's disability rate from 31% to 60%;

Causing injury or damage to the health of many people with the total disability rate of all these people from 61% to 100% or more, in which there is no case with a disability rate of 31% or more;

Causing injury or damage to the health of many people with a total disability rate of all these people from 31% to 60% and also causing property damage worth from 30 million VND to less than 50 million VND;

Causing property damage worth from 50 million VND to under 500 million VND

million dong [27, pp. 98-99].

In addition to the damage to life, property, and health, practice shows that there may also be non-material consequences such as negative impacts on the implementation of the Party's guidelines and State policies, affecting security, order, and social safety... In these cases, it is necessary to assess the severity of the consequences on a case-by-case basis.

Committing a crime in one of the cases specified in Clause 2, Article 281, the offender shall be sentenced to imprisonment from 05 years to 10 years, which is a very serious crime. Compared with Clause 2, Article 221 of the 1985 Penal Code, Clause 2, Article 281

The 1999 Penal Code and the 2009 Law amending and supplementing a number of articles of the Penal Code do not have any new provisions. However, the crime of abusing one's position and power while performing official duties as prescribed in Article 281 of the 1999 Penal Code is a lesser crime than Article 221 of the 1985 Penal Code. Therefore, the crime committed before 0:00

July 1, 2000, but after 0:00 on July 1, 2000, it was discovered and processed.

Article 281, Clause 2 of the 1999 Penal Code shall be applied to the offender.

When deciding on the penalty for a criminal under Clause 2, Article 281, the Court must also base itself on the provisions on deciding on penalties in Chapter VII of the Penal Code . If the offender has two or more mitigating circumstances, no aggravating circumstances or insignificant levels of aggravation, the offender has a good character, no criminal record, and deserves leniency, the Court may apply below the lowest level of the penalty range (less than 05 years in prison) but not less than 01 year in prison. If the offender has many aggravating circumstances, no mitigating circumstances or mitigating levels, the Court may apply below the lowest level of the penalty range (less than 05 years in prison) but not below 01 year in prison.

Many circumstances are decisive factors in determining the penalty frame prescribed in Clause 2 of the law, and can only be punished with the highest level of the penalty frame (up to 10 years in prison) [27, pp. 99-100].

If the other circumstances of the case are the same, a person who commits a crime in many cases specified in Clause 2, Article 281 of the Penal Code will be punished more severely than a person who commits a crime in only one case specified in Clause 2, Article 281 of the Penal Code.

For example: In the case of abuse of position and power that occurred in Ngoc Liep commune, Quoc Oai district, Hanoi city: Kieu Doan Si - former chairman of the People's Committee of Ngoc Liep commune, Ta Van Vien - former cadastral officer of Ngoc Liep commune, Do Hung Chien - former budget accountant of Ngoc Liep commune, Tu Van Truat - former party committee member, Party Committee office, Fatherland Front of Ngoc Liep commune, Phi Xuan Hung - former head of Ngoc Bai village, Ta Van La - former head of Ngoc Phu village, Ta Quang Thieng - former head of Liep Mai village - are people with positions and powers in Ngoc Liep commune, Quoc Oai district, Hanoi city, taking advantage of assigned work, for the purpose of profiting for the locality, under the direction of Kieu Doan Sy, performed a number of improper actions in the locality under their management, contrary to the provisions in Clauses 1 and 2, Article 37, Clause 2, Article 44, Clause 5, Article 67 of the Land Law 2015. 2003, specifically:

1. Recovering and exchanging residential land to expand the grounds of Liep Mai pagoda and village roads in Liep Mai village, without a decision from a competent state agency: Recovering 1,742.7m2 of residential land from 22 households in Liep Mai village and assigning 2,871.2m2 of new land (agricultural land) to households, including Ta Quang Thieng's household, whose residential land area was exchanged for the collective was 23.8m2 . The People's Committee of the commune assigned an additional 28.6m2 beyond the conversion ratio, so that Mr. Thieng's household had 110m2 . The People's Committee of the commune collected 57,200,000 VND and put it into the commune budget.

2. Granting resettlement land to households to expand Lang - Hoa Lac road: Arbitrarily granting resettlement land to 05 households with an area of 510.8m2 , collecting 290,900,000 VND to the commune budget.

Crime of taking advantage of position and power while performing official duties according to Vietnam's Criminal Law - 8

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