Therefore, Khuat Xuan T and Van Duc H must bear criminal responsibility for the crime of disobeying orders due to intentionally not carrying out the orders of the Minister of National Defense. The criminal prosecution of Dinh Ngoc B and Bui Nhan D for what crime depends on whether they were informed of the above orders of the Ministry of National Defense or not. If they were informed, what were their opinions when Khuat Xuan T and Nguyen Duc H assigned them the task? Specifically:
If Dinh Ngoc B and Bui Nhan D were informed of the orders of the Ministry of National Defense and did not give any feedback to the person who assigned the task, they would also be held criminally responsible for the crime of disobeying orders as accomplices with Khuat Xuan T and Nguyen Duc H. If they had given feedback, but Khuat Xuan T and Nguyen Duc H still asked them to carry out the task, they would not be held criminally responsible for the crime of disobeying orders but would be held criminally responsible for the crime of violating regulations on labor safety as prescribed in Point b, Clause 2, Article 227 of the Penal Code. Because Dinh Ngoc B and Bui Nhan D violated the provisions of Clause 8, Article 51 of the Electricity Law : "When carrying out work on the ground or underground near or in the protection corridor of overhead power lines that may affect the normal operation of the power lines or pose a risk of causing electrical incidents or accidents, the unit carrying out such work must have an agreement with the power grid management unit on necessary safety measures" causing very serious consequences.
- According to the provisions of Articles 319, 320 and 321 of the Penal Code, the determination of the crime for acts of violating the solidarity relationship within the army depends on the military relationship between the person who committed the socially dangerous act and the victim. Therefore, there are cases where the defendants are accomplices of each other but each person is convicted of a different crime. For example:
Maybe you are interested!
-
Crimes of Violating the Duties and Responsibilities of Military Personnel According to the Provisions of Vietnamese Criminal Law from 1945 to Before the Promulgation of the Criminal Code -
Practical Application of the Provisions of the Penal Code on Crimes of Violating the Duties and Responsibilities of Military Personnel -
Analysis and proposal of solutions to expand retail activities at Military Commercial Joint Stock Bank - 1 -
Trial Practices of Other Position-Related Crimes in Ho Chi Minh City -
Loan Sales Situation of Military Commercial Joint Stock Bank - Hue Branch in the Period 2017 - 2019
Private Nguyen Hong Y - soldier of Squad 1, Company 1; Private Nguyen Van L - soldier of Squad 1, Company 2 and Corporal Nguyen Quoc Th - Squad Leader of Squad 2, Company 1 all belonged to Battalion 20, Division T, Army Corps B. On September 2, 2000, when allowed to go out of the barracks, these soldiers drank and Nguyen Quoc Th returned to the unit at 12:30 p.m. the same day and caused disorder while everyone was taking a lunch break. Seeing that, Sergeant Do Thanh N - Squad Leader of Squad 1, Company 1, Battalion 20 reminded him. Nguyen Quoc Th returned to the gate and invited Nguyen Van L and Nguyen Hong Y to beat Do Thanh N and these people agreed. When he returned to the unit, Nguyen Quoc Th continued to cause disorder and Do Thanh N came out to remind him again. Nguyen Van L and Nguyen Hong Y shouted "beat the hell out of him!" Seeing Nguyen Quoc Th beat Do Thanh N, Nguyen Van L and Nguyen Hong Y also jumped in to beat Do Thanh N until everyone intervened. As a result, Do Thanh N suffered minor injuries.
The Military Procuracy prosecuted: Nguyen Hong Y for assaulting a commander as prescribed in Clause 1, Article 319; Nguyen Van L for assaulting a superior as prescribed in Clause 1, Article 319; Nguyen Quoc Th for assaulting a comrade as prescribed in Clause 1, Article 321 of the Penal Code; each was sentenced to 6 months in prison. In judgment No. 18/HSST dated January 22, 2001, the Military Court of Region 1, Military Region 7 sentenced: Nguyen Hong Y for assaulting a commander as prescribed in Clause 1, Article 319; Nguyen Van L for assaulting a superior as prescribed in Clause 1, Article 319; Nguyen Quoc Th for assaulting a comrade as prescribed in Clause 1, Article 321 of the Penal Code; each was sentenced to 6 months in prison [87].
The reason for the trial of the above defendants for different crimes stems from the provisions of Articles 319, 320 and 321 of the Penal Code, which is the determination of crimes against acts of violating internal solidarity in the army.
depends on the military relationship between the person who committed the socially dangerous act and the victim. Although Nguyen Quoc Th, Nguyen Hong Y, and Nguyen Van L all committed the act of assault against Do Thanh N, in terms of military relationship, Do Thanh N was: the direct commander (Squad Leader) of Nguyen Hong Y; the superior of Nguyen Van L (a soldier of Squad 1, Company 2) and a comrade (with the same position as Squad Leader) of Nguyen Quoc Th. Therefore, the Court tried and sentenced each person for a different crime. The sentencing of the defendants for different crimes in the above case is not in accordance with the provisions of the Penal Code on accomplices but is in accordance with the provisions of the Penal Code on defining crimes for acts that violate the duties and responsibilities of military personnel.
- In practice, prosecution and trial, there are cases of confusion between the crime of humiliating or assaulting a commander or superior or comrade; the crime of humiliating or using corporal punishment on a subordinate and the crime of humiliating or assaulting comrades with the crime of intentionally causing injury. In which:
+ There are cases where the objective act constitutes the crime of intentional infliction of injury as prescribed in Clause 1, Article 104, but is prosecuted and tried for the crime of assaulting comrades as prescribed in Clause 1, Article 321 of the Penal Code. For example: Tran Ngoc L and Pham Ba T, both soldiers of Company 2, Battalion H, Division T, Military Region 9, assaulted Nguyen Huu Ph - a soldier of Company 4, Battalion H, Division T, Military Region 9. The case has the following content:
Because he was previously attacked by Nguyen Huu Ph and some others for no reason, Tran Ngoc L invited Pham Ba T (a soldier in the same unit) to take revenge. At around 10:00 a.m. on October 12, 2007, when the whole unit was on the way back from work, Tran Ngoc L took a wooden chair and hit Ph on the head; Pham Ba T took a shovel with a long wooden handle.
1.5m hit Ph's arm. As a result, Nguyen Huu Ph suffered a 10% health injury.
The Procuracy prosecuted Tran Ngoc L and Pham Ba T for the crime of assaulting teammates under the provisions of Clause 1, Article 321 of the Penal Code. The court tried the defendants for the crime of assaulting teammates under the provisions of Clause 1, Article 321 of the Penal Code [83] without returning the case file for further investigation.
+ There are cases where the objective act constitutes the crime of humiliating the commander as prescribed in Clause 1, Article 319, but is prosecuted for the crime of intentionally causing injury as prescribed in Clause 1, Article 104 of the Penal Code. For example:
At about 11:30 a.m. on August 5, 2005, Vo Minh Ng and some soldiers went out to drink. When returning to the unit, Vo Minh Ng shouted, called Lieutenant Hoang Ngoc U - Platoon Leader to wake up and demanded to go to Company 2 to fight. Hoang Ngoc U tried to stop him and advised Vo Minh Ng to go to sleep but Ng did not listen, so Hoang Ngoc U went to report to the Company Command. Following the Company Leader's order, Hoang Ngoc U gathered the unit to remind them. In front of the troops, Vo Minh Ng rushed in, grabbed Hoang Ngoc U's collar, tore, punched and kicked him, and tried to curse and seriously insult Hoang Ngoc U's honor. As a result, Hoang Ngoc U suffered a 9% health injury.
The Procuracy prosecuted Vo Minh Ng for the crime of intentionally causing injury under the provisions of Clause 1, Article 104 of the Penal Code for the reason that Vo Minh Ng humiliated and caused injury, causing his commander to suffer a 9% health loss. Vo Minh Ng's act of causing injury stemmed from the reason that Hoang Ngoc U was performing official duties. In the criminal judgment No. 24/HSST dated December 24, 2005, the Military Court of Region 2, Military Region 7, sentenced the defendant for the crime of humiliating the commander under the provisions of Clause 1, Article 319 of the Penal Code.
The reason for the different charges against Tran Ngoc L, Pham Ba T and Vo Minh Ng comes from the instructions of the competent authority : "Acts of using torture on subordinates, assaulting and killing people (commanders, superiors or teammates) or causing injuries or harm to the health of others to the extent of constituting the crime of violating the life and health of others, the offender will be prosecuted for criminal liability for the crime of violating the life and health corresponding to the provisions in Chapter XII "Crimes of violating the life, health and dignity of people" without being prosecuted for criminal liability for the corresponding crime prescribed in Articles 319, 320 and 321 of the Penal Code [61, p. 11]".
We believe that the actions of Tran Ngoc L and Pham Ba T have sufficient elements to constitute the crime of intentional infliction of injury as prescribed in Point a, i, Clause 1, Article 104 of the Penal Code. The trial of the defendants for the crime of assaulting comrades as prescribed in Clause 1, Article 321 of the Penal Code is not in accordance with the provisions of Joint Circular No. 01/2003/TTLT - TANDTC-VKSNDTC-BCA-BTP-BQP dated August 11, 2003 of the Supreme People's Court, the Supreme People's Procuracy, the Ministry of Public Security, the Ministry of Justice, and the Ministry of National Defense guiding the application of a number of provisions in Chapter XXIII "Crimes of violating the duties and responsibilities of military personnel" of the 1999 Penal Code.
For Vo Minh Ng, the act of tearing, punching and kicking and cursing Hoang Ngoc U in front of the unit was only an act of seriously insulting the honor of the commander and causing the victim 9% damage to his health. Therefore, the Court of First Instance's conviction of Vo Minh Ng for the crime of humiliating the commander as prescribed in Clause 1, Article 319 of the Penal Code was in accordance with the nature and level of danger of the crime committed by Vo Minh Ng.
- As presented, through the study of the practice of trying desertion from July 1, 2000 to 2009, we found that: among the desertion cases, up to 97% of the defendants convicted of desertion were in the case of " having been disciplined but still violating"; only 3% of the defendants convicted of desertion were in the case of "committing desertion with serious consequences". Of which:
+ Many cases of convicting defendants of committing acts of illegal absence for desertion. For example:
Example 1: Private Nguyen Tien B - Soldier of Company 9, Battalion 3, Regiment E, Division N, Military Region 7, from March 4, 2002 to September 14, 2003, left his unit and returned home five times; the short time was 10 days, the long time was more than a month. After each time returning to his unit, Nguyen Tien B was disciplined from reprimand to disciplinary detention. On October 22, 2003, Nguyen Tien B left his unit again and returned home until November 5, 2003, when he returned to his unit and was prosecuted for desertion. In criminal judgment No. 04/HSST dated June 18, 2004, Military Court of Region 1, Military Region 7 sentenced the defendant for desertion because he had committed desertion many times and had been disciplined but still violated the provisions of Clause 1, Article 325 of the Penal Code [87].
Example 2: Private Nguyen Hoang V - Soldier of Company 18, Battalion 3, Regiment E, Division N, Military Region 7 also repeatedly committed the act of leaving the unit to return home as follows: On May 22, 2003, he left the unit to return home until May 28, 2003, then returned to the unit and was disciplined with a reprimand in front of the platoon. On July 15, 2003, he left the unit to return home until August 12, 2003, then returned to the unit and was disciplined with a warning in front of the company. On March 15, 2004, he left the unit to return home until March 30, 2004, then returned to the unit and was prosecuted for criminal responsibility for desertion. In the criminal judgment No. 10/HSST dated October 18, 2004, the Military Court of Region 1, Military Region 7 sentenced him to
accused of desertion for committing desertion many times and having been disciplined but still violating the provisions of Clause 1, Article 325 of the Penal Code [88].
Example 3: Private Pham Minh H - Soldier of Battalion 1, Gia Dinh Regiment, Ho Chi Minh City Military Command, from February 1, 2005 to August 24, 2005, left his unit and returned home six times; each time for 15 to 30 days. After each return to the unit, he was disciplined. On September 30, 2005, he left his unit and returned home until October 20, 2005, when he returned to his unit and was prosecuted for criminal liability. In criminal judgment No. 10/HSST dated March 18, 2006, the Military Court of Region 1, Military Region 7, sentenced the defendant for desertion because he had committed desertion many times and had been disciplined but also violated the provisions of Clause 1, Article 325 of the Penal Code [89].
We believe that in the above cases, the defendants only committed the act of illegal absence. Because, although the defendants left their units many times, they all returned to their units afterwards. Therefore, that act was not an act of leaving the military ranks to avoid performing their military service obligations. Therefore, convicting the defendants of desertion is not consistent with the objective nature of the behavior and the purpose of the defendants when committing the acts of desertion. The reason for prosecuting the person who committed the act of illegal absence for desertion stems from the fact that the 1999 Penal Code: abolished the crime of illegal absence (stipulated in Article 261 of the 1985 Penal Code); amended and supplemented the crime of desertion.
+ In many cases, soldiers abandon their units, even commit other serious crimes, but are not prosecuted for desertion. For example:
Example 1: Private Tran Thanh H - Soldier of Battalion 5, Regiment S, Military Region 7 often left the unit to return home. The unit sent cadres back many times.
The family persuaded Tran Thanh H to return to the unit, but while the unit was carrying out disciplinary proceedings, on November 20, 2006, Tran Thanh H left the unit but did not return home but escaped to the Central Highlands to live with his sister. On December 17, 2006, Tran Thanh H returned to Ho Chi Minh City and committed robbery and was arrested. The Military Procuracy of Region 74 only decided to prosecute Tran Thanh H for robbery as prescribed in Clause 1, Article 133 of the Penal Code, but not for desertion because Tran Thanh H had deserted many times but had not been disciplined. In the criminal judgment No. 06/HSST dated April 13, 2007, the Military Court of Region 1 of Military Region 7 also only sentenced Tran Thanh H for one crime, robbery as prescribed in Clause 1, Article 133 of the Penal Code.
Example 2: Private Ma Van H - a soldier of Battalion 13, Division C, Military Region A, deserted his unit on June 20, 2000. Although his family brought him back to the unit twice, Ma Van H continued to run away on the way to the unit. His family brought Ma Van H to the District Military Command to escort him to the unit, but Ma Van H did not go and continued to run away when his family had just left the District Military Command. On August 13, 2000, Ma Van H committed the crime of intentional infliction of injury. The Military Procuracy of Region 11 only decided to prosecute Ma Van H for the crime of intentional infliction of injury. The Military Court of Region 1 of Military Region 1 also only sentenced Ma Van H for the crime of intentional infliction of injury according to the provisions of Clause 1, Article 104 of the Penal Code [81].
Example 3: Private Tran Minh Ph - Soldier of the Information Company, Military Command of Kon Tum province, left his unit to return home 7 times but was never disciplined by the unit. On November 27, 2004, Tran Minh Ph left his unit again but did not return home but went to work elsewhere to earn a living. On January 22, 2005, he was arrested while transporting drugs and was only prosecuted for criminal responsibility for the crime of illegal transportation of drugs according to the provisions of Clause 1, Article 194 of the Penal Code [82]...