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

Therefore, agencies like this also fall under the concept of agencies stipulated in Article 277 of the Penal Code.

Similar to the concept of "agency", the concept of organization stipulated in Article 277 of the 1999 Penal Code has also been amended to be broader than the concept of "social organization" stipulated in Article 219 of the 1985 Penal Code. Currently, our country has the following types of organizations: political organizations, socio-political organizations, social organizations, socio-professional organizations, and economic organizations. There are many different views on determining which types of organizations are within the scope of regulation of Article 277 of the Penal Code.

The first viewpoint holds that the criterion for determining the concept of "organization" stipulated in Article 277 of the Penal Code is the determination of public service. Those who follow this viewpoint also explain that public service is public work, the person performing public service is the person performing the task for public work. Therefore, organizations established and operating with the purpose of serving the common interest, the interest of society, the community... are the subjects of "organization" stipulated in Article 277 of the Penal Code. Also according to this opinion, all the above types of organizations, especially for economic organizations, state-owned enterprises, joint ventures with state capital contribution, and cooperatives, are all included in the concept of organization stipulated in Article 277 of the Penal Code.

The second viewpoint holds that determining which type of organization is subject to the "organization" stipulated in Article 277 of the Penal Code should be based on the 2005 Law on Anti-Corruption and the Law amending and supplementing a number of articles of the 2011 Law on Anti-Corruption. Clause 6 of Article 2 of the Law on Anti-Corruption stipulates: "Agencies, organizations, and units include state agencies, political organizations, socio-political organizations, people's armed forces units, public service units, state-owned enterprises, and other agencies, organizations, and units using the state budget and assets" [32]. Thus, according to this viewpoint, social organizations and a part of economic organizations (cooperatives, private enterprises, 100% foreign-owned enterprises, etc.) do not fall under the concept of organization stipulated in Article 277 of the Penal Code.

The third view holds that, in order to be consistent with other concepts stipulated in the chapter on crimes of position, the concept of organization stipulated in Article 277 of the Penal Code only includes political organizations, socio-political organizations and a part of the economic organization type which is state-owned enterprises and enterprises in which the State has shares and participates in management and operation. In addition, in our country today, there is another type of organization which is an organization or representative agency of a foreign organization, a non-governmental organization... located in Vietnam. These organizations also participate in a number of legal relations of Vietnam, and the assets of these organizations are protected by Vietnamese law as for the assets of Vietnamese organizations.

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Article 141 of Chapter IV - Crimes of violating socialist property of the 1985 Penal Code stipulates: "Anyone who violates the property of other States or international organizations shall be punished according to the corresponding provisions of this Chapter" [29]. The 1999 Penal Code removed this provision but concentrated crimes of violating property in one chapter - Chapter XIV regulating acts of violating property, regardless of the form of ownership. Therefore, the spirit of Article 141 of the 1985 Penal Code remains valid. A person who has all the signs in Articles 277 and 278 of the Penal Code, if he/she appropriates the property of an international organization that he/she is responsible for managing, with all the signs of a crime, must be punished for the crime of "embezzlement of property", saying that to see that an international organization located in Vietnam also falls under the concept of "organization" stipulated in Article 277 of the Penal Code.

Regarding the concept of "public service": According to Resolution 04/HDTP of the Council of Judges of the Supreme People's Court dated November 29, 1986 guiding the application of a number of provisions in the Crimes Section of the 1985 Penal Code, public service is a job that a state agency or social organization assigns to a person to perform.

Public service does not stop at the concept of "public power" in the state apparatus, but also includes the tasks of agencies and organizations in the system.

politics in which the State is only an agency in that system. Those who are elected, appointed, recruited or assigned regular tasks in agencies and organizations in the political system when performing their duties are considered to be performing public duties (public service). Especially now, along with the development trend of society, many areas have been privatized, equitized, and socialized such as private notary activities, private hospitals, private schools, etc. It can be seen that in many areas of society, the behavior of individuals not only affects their own interests but also affects the common interests of the community, so the understanding of public service cannot be limited to the scope of tasks related to public activities but should be understood in a broader scope, which is all activities related to the interests of the community (both private and public).

Section 2, Chapter 2 of Resolution 04/HDTP of the Council of Judges of the Supreme People's Court dated November 29, 1986 guiding the application of a number of provisions in the Crimes Section of the 1985 Penal Code explains:

A public official is a person holding a position and authority in a state agency or social organization performing his or her functions and duties, and can also be a citizen mobilized to perform duties (such as patrolling, guarding, etc.) according to the plan of a competent authority, serving the common interests of the State and society [45].

According to the Resolution, a person holding a position is a person appointed, elected, contracted or otherwise, with or without salary, assigned to perform a certain public duty or with certain authority while performing public duty.

This is the first definition of the concepts of "public service" and "public duty performer" in a criminal law document and up to now, there has not been any legal document in the criminal law sector that redefines these two concepts. The above definition also represents one of the current views on "public service" and "public duty performer".

In addition, in Clause 1, Article 3 of the Law on State Compensation Liability

2009 also stipulates:

A public official is a person elected, approved, recruited or appointed to a position in a state agency to perform administrative management, litigation, and judgment enforcement tasks, or another person assigned by a competent state agency to perform tasks related to administrative management, litigation, and judgment enforcement activities [35, Article 3, Clause 1].

Regarding the concept of "violating public duties", there are some views as follows:

Violation of official duties is when a person with a position or authority fails to perform work within his/her functions and duties as assigned by his/her agency or organization, while he/she is obliged to perform and has the conditions to perform:

Obligations are decided by state agencies and social organizations based on the individual's job position, function and duties.

Having conditions to do means objective conditions (working conditions, conditions supporting the performance of assigned work...) and subjective conditions (qualifications, capacity, physical strength... of that individual) allowing them to perform the above obligations.

The act of not fully performing the work within the functions and duties of a person with a position or authority as assigned by that person's agency or organization. In this case, the person with a position or authority did not fully perform the content of that work or did not fully complete the procedures required by that work.

The act of doing something contrary to the functions, duties and general requirements of the agency or organization that the person holding the position or authority is doing. In this case, the functions and duties of the person holding the position or authority are not allowed to do it, but the person still does it [Quoted from 23, p. 46].

However, in practice, the fight against the crime of abusing one's position and power while performing official duties has encountered certain difficulties and obstacles in recent times. Some legal provisions on these issues are abstract, general, difficult to explain, and difficult to apply, especially in the current social situation where there have been many transformations and changes in different aspects, many areas have been socialized (jobs that were previously only undertaken by the State have now been assigned to the people to do together). Therefore, in terms of awareness, there needs to be a consensus in determining who is a person with a position and power and what is abusing one's position to commit a crime?

The concept of a person with a position or power was first officially mentioned in the circular guiding the explanation of the application of the Decree on Punishment of Bribery of the Supreme People's Court dated August 6, 1982: A person with a position or power includes those who are officially assigned by a state agency or social organization to undertake a regular or temporary task regardless of the Regulation (by appointment, election, contract, obligation, paid or unpaid) or what rank (person in charge or service staff) and have power over others while performing the task. "A person with a position or power" is defined in Article 277 of the 1999 Penal Code .

is a person "by appointment, election, contract or other form, with or without salary, assigned to perform a certain public duty and having certain powers while performing public duty" [31].

According to this concept, there are many different bases to determine a person has a position such as: by appointment, by election, by contract or by another form... The other form here can be understood as any form that attaches certain powers of the subject to the position they hold. Thus, "a person with a position of authority" can be briefly understood as "a person assigned to perform a public duty (of a legal nature) and has certain powers while performing that public duty".

For example: Traffic police are in charge of traffic control, handling vehicles violating traffic laws; militia are chasing criminals; doctors are assigned to examine military service candidates... All of these people are considered to be officials because they are assigned to perform public duties for the common benefit of the whole society and have certain powers while performing public duties. When performing public duties, officials may or may not receive salaries. The public duties assigned to officials may be regular, long-term duties such as: the work of specialists in state administrative agencies, of police officers, of specialized cadres in social organizations..., or may be work limited to a certain period of time such as: work according to the term of the National Assembly and People's Council, the term of Judges, the term of Prosecutors, work specified in labor contracts, in authorization documents...

On the other hand, Clause 3, Article 1 of the Law on Anti-Corruption stipulates:

3. People with positions and powers include:

a) Cadres, civil servants and public employees;

b) Officers, professional soldiers, defense workers in agencies and units of the People's Army; professional officers, non-commissioned officers, specialized and technical officers and non-commissioned officers in agencies and units of the People's Public Security;

c) Leaders and managers in state-owned enterprises; leaders and managers who are representatives of the state's capital contribution in enterprises;

d) The person assigned to perform tasks and duties has the right to

time limit while performing that task or official duty [32].

At the same time, people with positions are "appointed or elected" so they can be considered cadres and civil servants and according to Article 4 of the Law on Cadres and Civil Servants

The position was approved by the National Assembly on November 13, 2008.

Functions include:

1. Cadres are Vietnamese citizens, elected, approved, appointed to hold positions and titles for a term in agencies of the Communist Party of Vietnam, the State, socio-political organizations at the central level, in provinces and centrally-run cities (hereinafter referred to as provincial level), in districts, towns, and provincial cities (hereinafter referred to as district level), on the payroll and receiving salaries from the state budget.

2. Civil servants are Vietnamese citizens who are recruited and appointed to ranks, positions and titles in agencies of the Communist Party of Vietnam, the State, socio-political organizations at the central, provincial and district levels; in agencies and units of the People's Army who are not officers, professional soldiers or defense workers; in agencies and units of the People's Police who are not officers or professional non-commissioned officers and in the leadership and management apparatus of public service units of the Communist Party of Vietnam, the State and socio-political organizations (hereinafter referred to as public service units), in the payroll and receiving salaries from the state budget; for civil servants in the leadership and management apparatus of public service units, salaries are guaranteed from the salary fund of the public service units according to the provisions of law.

3. Commune, ward and town officials (hereinafter referred to as commune level) are Vietnamese citizens, elected to hold positions for a term in the Standing Committee of the People's Council, People's Committee, Secretary, Deputy Secretary of the Party Committee, head of a socio-political organization; commune-level civil servants are Vietnamese citizens recruited to hold a professional or technical position under the People's Committee at the commune level, on the payroll and receiving salaries from the state budget [33, Article 4].

The concept of cadres and civil servants has been specifically explained in Decree No. 06/2010/ND-CP of the Government dated January 25, 2010 and Circular No. 08/2011/TT-BNV of the Ministry of Home Affairs dated June 2, 2011, accordingly, civil servants include those who are recruited, appointed to ranks, positions, titles, in the payroll, receiving salaries from the state budget or guaranteed from the salary fund of public service units according to the provisions of law.

In addition to the concept of a person holding a position, another issue that needs to be specifically defined is what is meant by taking advantage of a position to commit a crime. A person holding a position only becomes a subject of a crime when they have taken advantage of their assigned position to commit a crime. Position is always associated with certain powers, a person holding a position has the right to decide on matters related to the common interests of society. Therefore, a person holding a position and authority can only commit the crime of taking advantage of a position when they intentionally cause damage to the common interests of the community... while performing assigned duties, if that person does not cause damage to the common interests of the community but causes damage to his own interests, then he is not considered to have taken advantage of his position to commit a crime. For example, if the treasurer and accountant of the People's Committee at the commune level collude to use the committee's public funds to buy goods to sell for profit but suffer a loss and a deficit in the agency's funds, in this case they are considered to have taken advantage of their position to commit a crime. But if the treasurer and the accountant jointly invest capital (their own capital) to buy goods to sell for profit but incur a loss, the damages that occur are the ones they have to bear, and do not affect the interests of the agency, then their actions are not considered criminal.

Determining who is a person in a position and the abuse of position to commit a crime by the offender is an important issue, which is meaningful in determining the crime and prosecuting criminal responsibility of the agencies conducting the proceedings. It can be said that the abuse of position to commit a crime is an aggravating circumstance and is also determined as an aggravating circumstance of criminal responsibility.

Crime of taking advantage of position and power while performing official duties according to Vietnam's Criminal Law - 4

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