This crime has sufficient elements to constitute the objective act of the crime of open appropriation of property.
CONCLUSION OF CHAPTER 2
1. The approach to handling the crime of open appropriation of property is determined in the provisions of the Penal Code and through the practice of investigation, prosecution and trial; reflecting the criminal policies and guidelines of our Party and State and the practical requirements of the fight against crime in general, and crimes against property in particular, to protect property relations; maintain social order, protect the rights and legitimate interests of agencies, organizations and individuals. In each period, due to the socio-economic conditions of the country and the different situations and developments of crimes, the approach to handling this crime has also changed; however, that approach is always consistent, ensuring objectivity, fairness, accuracy and compliance with the law.
2. Through the practice of investigation, prosecution and trial, it is shown that although in theory, the characteristic signs of the crime of open appropriation of property have been clarified and recognized by many legislators, criminologists, research and law training institutions, in practice, it is not always possible to determine, therefore, there are still different opinions and assessments surrounding the determination of whether an act is open appropriation of property or not. In many cases, when faced with a crime, the investigating, prosecuting and adjudicating agencies cannot always distinguish between the crime of open appropriation of property and crimes of the same nature of appropriation in the group of crimes against property such as robbery, extortion, snatching, theft, and illegal possession of property. Therefore, different perceptions in the application of criminal law to a crime are understandable, but through that, we can also see the limitations in criminal law, creating a lack of transparency in the application of criminal law.
3. The practice of investigation, prosecution and trial requires continuing to summarize and evaluate the current state of criminal law as well as the practical application of criminal law in the fight against crimes of property infringement in general and the crime of open appropriation of property in particular, as well as discovering difficulties, inadequacies, changes in the situation, developments and dynamics of the crime situation in order to continue to improve the criminal law system as well as criminal handling policies for crimes of property infringement, including the crime of open appropriation of property, ensuring the investigation, prosecution and trial of the right people and the right crimes, not letting criminals escape, not wrongfully convicting innocent people .
Chapter 3
CURRENT SITUATION AND SOLUTIONS TO IMPROVE CRIMINAL LAW AND IMPROVE THE EFFECTIVENESS OF THE FIGHT AGAINST THE CRIME OF OPEN APPROPRIATION OF PROPERTY
3.1. CURRENT STATE OF TRIAL OF CRIME OF OPEN APPROPRIATION OF PROPERTY
To properly assess the current situation of adjudicating the crime of open appropriation of property, it is necessary to analyze and evaluate the practice of adjudicating the crime of open appropriation of property in each year and the whole period and compare it with the current situation of adjudicating crimes in general and crimes belonging to the group of crimes against property in particular to draw conclusions and assessments on the development of the crime of open appropriation of property.
3.1.1. Practice of trying the crime of open appropriation of property
a) Number of first instance cases to be resolved annually by all levels of Court
According to statistics of the Supreme People's Court, in the five years from 2005 to the end of 2009, the total number of cases of open appropriation of property nationwide that were brought to trial by courts at all levels was 531 cases with 929 defendants (an average of 1.72 defendants per case); on average, 106.2 cases were tried at trial each year with 184 defendants. Of these, 518 new cases were accepted with 879 defendants (an average of 1.70 defendants per case); on average, 103.6 new cases were accepted each year with 175.8 defendants; the number of old cases from the previous year carried over to the following year was 13 cases with 41 defendants, on average, the remaining old cases per year were 2.6 cases with 8.2 defendants (an average of 3.15 defendants/case) (see Appendix 1).
In order to have sufficient theoretical and practical basis to correctly and fully assess the practice of trial and the development of the crime of open appropriation of property, it is possible to analyze, compare and contrast through the statistical data table below (Table 3.1).
Table 3.1 Number of cases to be resolved annually
Year
Old remaining | Newly accepted | Total | ||||||
Service | Accused | Service | Accused | Average defendants/case | Service | Accused | Average defendants/case | |
2005 | 5 | 9 | 85 | 121 | 1.42 | 90 | 130 | 1.44 |
2006 | -5 | -13 | 181 | 239 | 1.32 | 176 | 226 | 1.28 |
2007 | 1 | 5 | 100 | 207 | 2.07 | 101 | 212 | 2.10 |
2008 | 7 | 34 | 79 | 187 | 2.37 | 86 | 221 | 2.57 |
2009 | 5 | 6 | 73 | 125 | 1.71 | 78 | 131 | 1.68 |
Total | 13 | 41 | 518 | 879 | 1.70 | 531 | 920 | 1.73 |
Average | 2.6 | 8.2 | 103.6 | 175.8 | 1.70 | 106.2 | 184 | 1.73 |
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Source: Supreme People's Court.
Looking at the actual number of cases resolved annually above, we can make some assessments and comments on the development of the crime of open appropriation of property:
Firstly , the number of new cases and defendants accepted each year tended to increase in the first two years (in 2006, it increased compared to 2007) and then tended to decrease gradually in the next three years. The rate of defendants/case tended to decrease in the first two years of the research period and increased rapidly in the next two years (2007 and 2008) and decreased in 2009. If compared with the average number of cases and defendants tried each year, in 2006, there was a decrease compared to 2005 but it increased rapidly in 2007 and 2008 and decreased sharply in 2009. This situation shows that the crime of openly appropriating property has a very complicated development, not completely increasing but also not tending to decrease in the whole period, sometimes increasing rapidly but also decreasing sharply; In addition, it is also possible that law enforcement agencies have done a good job of prevention and property owners themselves have become more fully aware of their responsibilities in property management, not allowing themselves to fall into special conditions and circumstances that criminals can take advantage of and have the opportunity to commit crimes.
Second , if we compare the number of new cases and defendants each year with the average of the past five years, it shows that 2006 had the highest rate of cases and defendants, and 2009 had the lowest. If we consider the average rate of defendants/case, 2008 had the highest rate, and 2006 had the lowest rate; this rate tended to decrease in 2006 but increased sharply in 2007 and 2008 and decreased sharply in 2009. With an average of 1.73 defendants/case, it shows that there is usually more than one defendant in a case, and thus it can be seen that the rate of cases with accomplices is relatively common;
Third , the rate of first-instance trials from the previous year carried over to the following year is still large, with an average of 2.6 cases per year with 8.2 defendants (an average of 3.15 defendants/case), of which the most was in 2008 (with 7 cases and 34 defendants); the least was in 2007 (with 1 case and 5 defendants); in 2005, the trials exceeded the plan for 2006. This number shows that most of the cases carried over from the previous year to the following year are complicated cases, with many defendants committing crimes in one case (in 2007 there was only 1 case but with 5 defendants; in 2008 there were 7 cases with 34 defendants, an average of 1 case/5 defendants);
Fourth , if we compare the rate of cases and defendants in 2009 - the last year of the research period with 2005 - the first year of the research period, the number of cases has decreased but the number of defendants and the average rate of defendants/case have tended to increase, so it can be seen that this crime tends to increase rapidly in terms of the number of criminals in a case.
In addition to the above research period, through the study of statistics of the Supreme People's Court, it is also shown that in the first 7 months of 2009 (from January 1 to July 31, 2009), the total number of cases tried at first instance was 38 cases and 68 defendants (an average of 1.79 defendants/case). Also in the same period of 2010 (from January 1 to July 31, 2010), the total number of cases tried at first instance was 26 cases with 42 defendants (an average of 1.62 defendants/case). This situation shows that the number of cases and defendants committing the crime of openly appropriating property has a tendency to decrease sharply in both the number of cases and defendants.
and the number of defendants as well as the rate of criminals in a case. However, this number does not fully reflect the development of the crime of open appropriation of property because from January 1, 2010, the Penal Code amended and supplemented in 2009 increased the level of criminal property from 500,000 VND according to the Penal Code of 1999 to 2,000,000 VND, so some acts of open appropriation of property with the value of the property ranging from 500,000 VND to 2,000,000 VND and the offender does not fall into one of the cases specified in Clause 1, Article 137 of the Penal Code are not considered crimes. In addition, according to Resolution No. 33/2009/QH12 dated June 19, 2009 of the National Assembly on the implementation of the Law amending and supplementing a number of articles of the Penal Code, a number of acts that were previously considered crimes will now not be considered crimes under the provisions of the 2009 Penal Code amendments and if they are in the investigation, prosecution, or trial stages, they will not be criminally prosecuted.
b) Number of cases resolved
According to statistics of the Supreme People's Court, in five years, the People's Courts at all levels have brought 426 cases to trial with 695 defendants - an average of 85.2 cases to trial with 139 defendants per year (an average of 1.63 defendants/case), the remaining 42 cases with 90 defendants - an average of 8.4 cases with 18 defendants (an average of 2.14 defendants/case). The Courts at all levels have decided to suspend the trial of 05 cases with 7 defendants (an average of 1.4 defendants/case) - an average of 1 case with 1.4 defendants per year; returned the files to the People's Procuracy to reinvestigate 58 cases with 128 defendants and an average of 11.6 cases with 25.6 defendants in the five years; Of these, 14 cases were pilot cases and mobile trials (an average of 2.8 cases per year). The rest were tried at the Court's headquarters (see Appendix 1).
To have sufficient theoretical and practical basis to correctly and fully assess the current situation of resolved cases of the crime of open appropriation of property, it is possible to analyze, compare and contrast through the statistical data table below (Table 3.2):
Table 3.2: Analysis of resolved cases
Year
Total number of cases to be resolved | Suspension of trial | Return the file to the Procuracy | Trial | Number of remaining cases | |||||||
Service | Accused | Service | Accused | Service | Accused | Service | Accused | Mobile scorecard | Service | Accused | |
2005 | 90 | 130 | 0 | 1 | 9 | 11 | 74 | 106 | 0 | 7 | 12 |
2006 | 176 | 226 | 2 | 3 | 19 | 22 | 153 | 198 | 0 | 2 | 3 |
2007 | 101 | 212 | 0 | 0 | 15 | 54 | 70 | 108 | 3 | 16 | 50 |
2008 | 86 | 221 | 1 | 1 | 6 | 20 | 69 | 185 | 9 | 10 | 15 |
2009 | 78 | 131 | 2 | 2 | 9 | 21 | 60 | 98 | 2 | 7 | 10 |
Total | 531 | 920 | 5 | 7 | 58 | 128 | 426 | 695 | 14 | 42 | 90 |
Average | 106.2 | 184 | 1 | 1.4 | 11.6 | 25.6 | 85.2 | 139 | 2.8 | 8.4 | 18 |
Source: Supreme People's Court.
Looking at Table 3.2 above, we can make some general comments and assessments as follows about the case resolution process:
Firstly , if compared with the total number of cases and defendants to be resolved in five years, it shows that the rate of cases tried annually is 83.4% in terms of cases and 75.54% in terms of the number of defendants; the number of cases remaining to be tried is 8.19% in terms of cases and 9.8% in terms of the number of defendants. This rate shows that the % of cases is higher than the % of defendants, proving that the number of cases not brought to trial at first instance are mostly cases with many defendants; moreover, the Courts at all levels also have great difficulty in complying with the time and ensuring resources for the trial at first instance for this crime.
Second , the number of cases and defendants that had to return the case files to the People's Procuracy for further investigation accounted for 10.92% of the cases and 13.91% of the defendants. According to Article 179 of the Criminal Procedure Code, the Court shall issue a decision to return the case files to the People's Procuracy for further investigation in the following cases: 1) When it is necessary to consider additional important evidence for the case that cannot be supplemented at the trial;
2) When there is reason to believe that the defendant committed another crime or had another accomplice; 3) When there is a serious violation of procedural law. Through research on cases in which the Court returned the case file requesting additional investigation, it can be seen that returning the case file for additional investigation often occurs in all three cases mentioned above, in which cases where there is reason to believe that the defendant committed another crime and had another accomplice are more common than the remaining cases. This situation shows that the investigation and prosecution process of the investigation agencies and the Procuracy has not yet fully recognized and distinguished the components of the crime of open appropriation of property; some investigation and prosecution activities are still guaranteed, without sufficient evidence, especially important evidence to charge a person with the crime of open appropriation of property or not, which the Court cannot supplement during the first instance trial. In addition, the rate of returning files to the Procuracy for additional investigation is also very meaningful in proving the assertion that, regarding the perception of the basic elements of the crime of open appropriation of property, there are many different opinions among the prosecuting agencies, and often there is no consensus in the assessment and evaluation of the elements of this crime as well as the application of criminal law and criminal procedure to investigate, prosecute, and try this crime.
Third , the number of cases in which the Court suspended the trial accounted for 0.94% of the case and 0.76% of the defendant. According to Article 180 of the Criminal Procedure Code, for the crime of open appropriation of property, the Courts often suspend the trial of the case in the following cases: 1) the person committing the socially dangerous act has not reached the age of criminal responsibility; 2) The person whose criminal act has been sentenced or the decision to suspend the case has come into legal effect; 3) The statute of limitations for criminal prosecution has expired; 4) The criminal has been granted amnesty; 5) The person committing the socially dangerous act has died, except in cases where a retrial is required for another person and
6) The People's Procuracy withdrew the entire prosecution decision before opening the trial. Through studying 01 case whose trial was suspended by the Court, it was found that the People's Procuracy withdrew the entire prosecution decision before opening the trial.