things that have been appropriated; things and money that are profited from the illegal use of things that have been appropriated; things and money that the criminal is hired or rewarded for committing a crime, such as being rewarded for cruel treatment of other prisoners, destroying weapons and military technical equipment). Thus, things and money that the criminal obtains from buying, selling or exchanging things that have been obtained from committing a crime are only a form of things and money that the criminal obtains from committing a crime. When deciding to confiscate things and money that have been obtained from committing a crime or from buying, selling or exchanging such things, it is necessary to note:
Firstly, objects and money that criminals appropriate during the commission of crimes shall not be confiscated but must be returned to the owner or legal manager if they are not at fault in allowing criminals to use them for crimes or if the objects are not of a type prohibited by the State from circulation. As for spoils of war appropriated by criminals, they must be confiscated and turned over to the State treasury.
Second, for objects and money obtained from the purchase, sale or exchange of appropriated items, they shall not be confiscated but shall be deducted from the amount to be compensated; if there is a shortage, additional compensation must be made; if there is a surplus, point b, clause 1, Article 41 of the Penal Code shall apply to confiscate and transfer the surplus to the state budget. In cases where the offender appropriates money and then uses the money to buy property, the property must be seized to ensure compensation [64, p. 125]. When deciding to confiscate objects and money obtained from the purchase, sale or exchange of appropriated items, it is necessary to consider the rights of the consumer of the property [64, p. 125]:
+ If the consumer of the property knows that the property is obtained by another person through criminal means (i.e. the act constitutes a crime as prescribed in Article 250 of the Penal Code) and the property is recovered, then apply Point a, Clause 1, Article 41 of the Penal Code to confiscate and transfer to the State budget the amount of money used to purchase the property. In case
Maybe you are interested!
-
Practical Application of the Provisions of the Penal Code on Crimes of Violating the Duties and Responsibilities of Military Personnel -
Improving the Quality of Law Enforcement in Investigation, Prosecution, and Trial of Crimes of Violating State Secrets -
Results of the First Instance Trial for Defendants Committing Crimes of Violating Road Traffic Safety Order from 2005 - 2009 -
Crimes against military duties and responsibilities - Some theoretical and practical issues - 19 -
Trial Practices of Other Position-Related Crimes in Ho Chi Minh City
If the property has been sold by the consumer, then apply Point b, Clause 1, Article 41 of the Penal Code to confiscate all proceeds from the sale of that property;
+ If the consumer does not know that the property was obtained by another person through crime and the property obtained has been returned to the owner or legal manager, then paragraph 1, clause 2, Article 436 of the Civil Code shall apply, forcing the offender to return to the consumer the amount of money used to purchase the property. In case the property has been sold by the consumer, used up or exceeded the time limit prescribed in paragraph 1, Article 225 of the Civil Code, the offender must compensate the owner or legal manager; and the consumer of the property may only participate in the proceedings as a witness in the case.
Third, objects and money earned from the illegal use of things that have been appropriated and objects and money that the offender was hired or rewarded for committing the crime must be confiscated according to the provisions of Point b, Clause 1, Article 41 of the Penal Code.
At the same time as the regulation on confiscation and transfer to the State treasury of objects and money directly related to the commission of crimes (including crimes against the duties and responsibilities of military personnel), the Penal Code also stipulates objects and money that cannot be confiscated even though they are directly related to these crimes. These are objects and money owned by others that are illegally appropriated or used by criminals. And according to Associate Professor, Dr. Pham Hong Hai, the above regulation is completely consistent with the ideas expressed in the Constitution that the State protects the legitimate ownership rights of citizens [22, p. 188].
- Forcing a public apology to the victim is a general criminal justice measure applied to all crimes causing mental damage. Therefore, in principle, this judicial measure can be applied to those who commit crimes that violate the duties and responsibilities of military personnel causing mental damage.
(such as the humiliated person in the case of crimes stipulated in Articles 319, 320, 321 of the Penal Code). The practice of applying criminal law shows that military courts have never applied this judicial measure to those who committed crimes infringing on the duties and responsibilities of military personnel; and very rarely applied it to other criminal crimes under the jurisdiction of military courts. There are cases where the Court applies it but the victim does not need it; on the contrary, there are cases where the Court applies it but the victim does not comply. Therefore, Associate Professor, Dr. Pham Hong Hai was very correct in stating that the measure of forcing the offender to publicly apologize to the victim can only be applied on the basis of the offender's voluntariness and the victim's consent [22, p. 188].
On the other hand, Clause 2, Article 42 of the new Penal Code only stipulates that “The court shall compel the offender to publicly apologize to the victim” but does not stipulate that they must publicly apologize at the trial or after the verdict is announced. Therefore, there is an opinion that the offender will only apologize to the victim when the verdict comes into legal effect and there is a decision to execute the verdict. In our opinion, if we wait for the verdict to come into effect before apologizing, the meaning of this judicial measure will be lost. Furthermore, the execution of this judicial measure can only be carried out in one way: the defendant says “ I’m sorry.....” Therefore, if the person subject to this measure resolutely refuses to say the phrase “I’m sorry...” , then the application of this judicial measure is also not feasible.
- Compulsory medical treatment is a judicial measure stipulated in the Penal Code, originating from the humanitarian nature of our State's human rights policy [22, p. 188], which can be applied to: people who commit dangerous acts that violate the duties and responsibilities of military personnel while suffering from mental illness or another disease that causes loss of cognitive ability or ability to control their behavior; people who commit crimes that violate the duties and responsibilities of military personnel but before being sentenced have suffered from an illness to the extent of
loss of cognitive ability or ability to control one's behavior. Although Clauses 1 and 2, Article 43 of the Penal Code stipulate that compulsory medical treatment is a discretionary measure that "may be applied", but based on the characteristics of the subjects of crimes violating the duties and responsibilities of military personnel, we believe that this judicial measure must be applied to active military personnel who commit dangerous acts violating the duties and responsibilities of military personnel while suffering from a mental illness or another disease that causes loss of cognitive ability or ability to control their behavior, and military personnel who commit crimes violating the duties and responsibilities of military personnel but before being sentenced had suffered from an illness to the extent of losing cognitive ability or ability to control their behavior. For reserve military personnel during training, citizens who are mobilized and serve in the army, militia, and self-defense forces affiliated with the army in combat, and serving in combat, compulsory medical treatment or handing over to family care can be applied. Based on the conclusion of the treatment facility, if the person subject to compulsory medical treatment has recovered, the Procuracy or the Court shall decide to suspend the implementation of this measure and decide to continue to prosecute the criminal liability of the person who committed the crimes of violating the duties and responsibilities of a military personnel or suspend the case against them.
There is an issue that needs to be studied: whether to apply alternative judicial measures to punishment for minors who commit crimes infringing on the duties and responsibilities of military personnel or not? As presented, the subjects of crimes infringing on the duties and responsibilities of military personnel are military personnel up to the age of 17 (those who are admitted to military schools). Therefore, in principle, judicial measures can still be applied to minors who commit crimes infringing on the duties and responsibilities of military personnel. However, due to the specific organization of the military and the way the troops are managed (stipulated in the Military Management Regulations), we believe that judicial measures should not be applied.
Alternative measures to the penalties prescribed in Article 70 of the Penal Code for minors who commit crimes infringing on the duties and responsibilities of military personnel.
In addition to being convicted and having coercive measures (punishment and judicial measures) applied, “being subject to the impact of criminal prosecution activities” and “having a criminal record” are also considered forms of criminal responsibility for crimes that violate the duties and responsibilities of military personnel. Being subject to the impact of criminal prosecution activities is understood as the person prosecuted for crimes that violate the duties and responsibilities of military personnel is: prosecuted; preventive measures are applied; summoned, interrogated; searched, seized, and attached to property... A person convicted (having a penalty applied) for crimes that violate the duties and responsibilities of military personnel is also subject to a criminal record. The consequence of having a criminal record is that it can be considered a recidivism or dangerous recidivism (as prescribed in Article 49 of the Penal Code) and the aggravating circumstances of criminal liability prescribed in Point g, Clause 1, Article 48 of the Penal Code may apply if the crime is committed during the period when the criminal record has not been cleared.
Chapter 1 Conclusion
From the above research content, we can conclude the following theoretical issues about crimes violating the duties and responsibilities of military personnel:
1. Crimes of violating the duties and responsibilities of military personnel are socially dangerous acts prescribed in Chapter XXIII of the Penal Code, committed intentionally or unintentionally by the following persons with criminal responsibility capacity, violating the duties and responsibilities of military personnel: active military personnel; reserve military personnel during concentrated training; citizens drafted into military service; militia and self-defense forces affiliated with the military in combat or serving in combat.
2. The regulation of criminal liability for acts of violating the duties and responsibilities of military personnel is not only of theoretical and practical significance but also urgent to ensure the combat strength of the Vietnam People's Army.
3. Criminal liability for crimes of violating the duties and responsibilities of military personnel is the criminal legal liability that a person who commits a socially dangerous act violating the duties and responsibilities of military personnel must be subject to the impact of criminal prosecution activities, be convicted, be subject to coercive measures, and have a criminal record applied by the Court depending on the nature and level of danger of the act that person has committed.
4. The objective basis of criminal liability for crimes infringing upon the duties and responsibilities of military personnel is the commission of socially dangerous acts that the criminal law prescribes as a specific crime infringing upon the duties and responsibilities of military personnel.
5. Crime composition is the legal basis of criminal responsibility for crimes that violate the duties and responsibilities of military personnel, recorded in criminal law, including: object; objective aspect; subject and subjective aspect of these crimes.
6. Forms of criminal liability for crimes violating military duties and responsibilities include: main penalties; criminal justice measures; the impact of criminal prosecution activities and criminal records.
Chapter 2
Crimes violating the duties and responsibilities of military personnel as prescribed
of Vietnamese criminal law
2.1. Crimes of violating the duties and responsibilities of military personnel as prescribed by Vietnamese criminal law from 1945 to before the promulgation of the 1999 Penal Code
2.1.1. Crimes of violating the duties and responsibilities of military personnel as prescribed by Vietnamese criminal law from 1945 to before the promulgation of the 1985 Penal Code
Before 1985, our State did not have a Criminal Code. Crimes of violating the duties and responsibilities of soldiers were stipulated in Article 50 of Decree No. 71 dated May 22, 1946, stipulating the rules of the Vietnamese army (later cited and stipulated as Article 7 of Decree No. 163 dated August 23, 1846 on the organization of the provisional military court in Hanoi), including:
- Dangerous acts of a military nature such as losing guns and ammunition given to them or selling clothes, guns and ammunition; disobeying orders or assaulting superiors; deserting; surrendering to the enemy; arbitrarily retreating before the enemy without justifiable reasons; self-destructing agencies or weapons without instructions from superiors or not in case of necessity; abusing power to threaten agencies or employees in other branches of the Government; propagandizing to divide the army; sabotaging national defense; communicating with the enemy; and self-destructing to avoid duty [58, p. 522];
- Consequences of socially dangerous behavior such as " due to negligence in public service, causing damage to the people or soldiers " [58, p. 522];
- And social evils can occur both inside and outside the military such as "gambling and drug addiction" [58, p. 522].
Studying Article 7 of Decree No. 163 dated August 23, 1946, we see that crimes of a military nature are only regulated in one article generally called "crimes of a military nature" and have not been regulated into specific crimes. Among the criminal acts of a military nature: acts of disobeying orders, assaulting superiors, desertion, and surrendering to the enemy are highly general acts that can be used to name crimes; the remaining acts are "actual crimes" that are not highly general and therefore cannot be used to name crimes.
The nature of the act of " due to negligence in public service causing damage to the people or soldiers " is an act of irresponsibility in public service causing damage to the people or soldiers, but the legislator did not use this phrase but used the phrase as cited to describe the crime, which is unscientific.
Studying the practice of trying "crimes of military nature" , we see that: some crimes of military nature (due to Decree No. 163