Determining the Crime Name for Multiple Crimes, Including Fraudulent Appropriation of Property

punish the offender with a lighter sentence than the sentence guided in sub-section 2.1 of Section 2 as follows:

a. Imprisonment from seven years to less than twelve years if the value of the property appropriated is from five hundred million VND to less than one billion five hundred million VND (in this case there must be at least two mitigating circumstances as prescribed in Clause 1, Article 46 of the Penal Code);

b. Imprisonment from twelve to twenty years if the value of the property appropriated is from one billion five hundred million dong to less than four billion five hundred million dong;

c. Life imprisonment if the value of the property appropriated is from four billion five hundred million dong or more.

2.3. In case there are many aggravating circumstances but no mitigating circumstances or fewer mitigating circumstances, and at the same time, assessing the aggravating and mitigating nature, it is deemed necessary to increase the criminal responsibility of the offender, then the offender can be punished with a heavier sentence than the sentence guided in sub-section 2.1 of Section 2 as follows:

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a. Life imprisonment if the value of the property appropriated is from five hundred million dong to less than one billion five hundred million dong;

b. Death penalty if the value of the property appropriated is from one billion five hundred million dong or more.

2.4. In case of following the instructions in subsections 2.1 and

2.3 In this Section 2, if the offender must be sentenced to death, but the offender has compensated a significant portion of the value of the property appropriated (or the offender's relatives, blood relatives... have compensated on behalf of the offender), the offender may not be sentenced to death and, depending on the amount of compensation, the offender may be sentenced to life imprisonment or fixed-term imprisonment.

A significant portion of the value of the property appropriated is considered to have been compensated if:

a. Has compensated at least half of the value of the property appropriated;

b. Compensation has been paid from one-third to less than one-half of the value of the property appropriated, if there is evidence to prove that the offender (or the offender's relatives, blood relatives...) has taken all measures to compensate for the value of the property appropriated (sold all houses, valuable assets; tried to borrow, borrow... to the maximum extent) ... [25].

The practice of trying the crime of fraud and appropriation of property in Dak Lak during the period of 2010 - 2014 shows that there was no case of fraud and appropriation of property in which the Courts at all levels in the province applied the provisions of Articles 17 and 18 of the Penal Code to determine the crime as well as resolve other issues related to the criminal responsibility of the defendant for fraud and appropriation of property.

2.2.2.2. Determining the crime for cases of committing multiple crimes, including the crime of fraud and appropriation of property

The most recent specialized research works in Vietnamese Criminal Law Science on the institution of multiple crimes have not yet established a definition (concept) of crime classification for cases of multiple crimes. However, based on the study of theoretical issues on this institution and the practice of adjudicating cases related to cases of multiple crimes, from the perspective of Criminal Law Science, the author boldly gives the following definition of this concept: "Determining crime classification for cases of multiple crimes is the assessment in terms of criminal law of socially dangerous acts committed in cases of multiple crimes, committing many crimes, on the basis of comparison, comparison and examination to determine the

The legal signs of each specific act with the signs constituting the specific crime of the corresponding article in the Crimes Section of the Penal Code" .

To contribute to ensuring the accurate assessment of the crime of multiple crimes, including the crime of fraud and appropriation of property, when determining the crime of multiple crimes, including the crime of fraud and appropriation of property, criminal justice agencies need to pay attention to some basic issues as follows:

- Currently, in Criminal Law Science and in trial practice, there are still many different understandings surrounding the forms of the multi-crime regime (the theoretical analysis to clarify each of these viewpoints is a separate scientific research object that needs to be mentioned in many different works, which is not within the task and scope of this thesis).

- If, under the same conditions, the acts prohibited by criminal law committed in cases of complex single crimes (with its three forms - continuous crimes, prolonged crimes and compound crimes) are compared with cases of multiple crimes (with four forms of repeated crimes, multiple crimes, recidivism or professional crimes), then in principle, in cases of multiple crimes, the following points should be noted: criminal acts often infringe upon more interests protected by criminal law; the consequences of the crime are often more serious; the crime committed, as well as the personality of the offender, demonstrate a greater nature and degree of danger to society.

- Determining the crime for multiple crimes as a form of expression of multiple crimes can be understood as the criminal legal assessment of socially dangerous acts committed two or more times on the basis of comparison and examination to determine the similarity of the signs of those acts with the signs of the crime.

The basis for determining the specific crime that the defendant committed is in accordance with the elements of an aggravated crime as prescribed in the same corresponding article in the Crimes Section of the Penal Code.

In addition, from the practice of adjudicating cases of fraud and appropriation of property in Dak Lak province during the period of 2010 - 2014, it can be seen that: in some cases, in addition to the crime of fraud and appropriation of property, the offender is also prosecuted for other crimes committed before or at the same time as the crime of fraud and appropriation of property. In fact, there are two crimes that offenders are often tried together with the crime of fraud and appropriation of property: theft of property and abuse of trust to appropriate property.

For example: Pham Chau Tram worked as a motorbike repairman for Mr. Nguyen Xuan Thi. Mr. Thi asked to borrow Ms. Nguyen Thi Mong Tram's Attila motorbike with license plate 47M9-2889 so that Tram could go buy motorbike spare parts. On the way to buy things, Tram had the idea of appropriating the motorbike as a means of transportation, so she parked the motorbike in a parking lot. After a while, Tram took the motorbike, removed the license plate, repainted some parts of the motorbike to avoid detection, and then took it to another parking lot. Later, Tram returned to get the motorbike but was discovered and arrested along with the evidence.

On November 17, 2010, the Buon Ma Thuot City Asset Valuation Council concluded: the used Attila Victoria motorbike with license plate 47M9-2889 is worth 16,000,000 VND.

During the investigation, Pham Chau Tram also confessed that Tram used fraudulent means to borrow a Yamaha Sirius motorbike with license plate 47L3-7475 from Mr. Dung, who worked as a motorbike taxi driver, and then took possession of it. After that, Tram left the motorbike on the side of the road to sleep and the motorbike was stolen and could not be recovered.

On November 17, 2010, the Buon Ma Thuot City Asset Valuation Council concluded: the used Yamaha Sirius motorbike with license plate 47L3-7475 is worth 10,500,000 VND.

In the criminal judgment No. 77/2011/HSST dated March 21, 2011, the People's Court of Buon Ma Thuot City decided to apply Clause 1, Article 139; Point a, Clause 1, Article 140; Point p, Clause 1, Clause 2, Article 46, Article 50 of the Penal Code to punish Pham Chau Tram for fraud and appropriation of property, and 01 year in prison for abuse of trust and appropriation of property. The combined sentence for both crimes, defendant Pham Chau Tram must serve is 1 year and 9 months in prison. The term of serving the sentence is calculated from the date of temporary detention.

In the above case, the Trial Panel of Buon Ma Thuot City People's Court applied Point a, Clause 1, Article 140 of the Penal Code to convict Pham Chau Tram of the crime of abuse of trust to appropriate property in the circumstance of fleeing to appropriate when borrowing the Attila motorbike with license plate 47M9-2889 from Ms. Nguyen Thi Mong Tram; applying Clause 1, Article 139 of the Penal Code to convict Pham Chau Tram of the crime of fraud to appropriate property in the circumstance of using deceitful tricks to appropriate the Yamaha Sirius motorbike with license plate 47L3-7475 from Mr. Dung is completely legally grounded and in accordance with the law.

For the cases where the subject committed multiple crimes mentioned above, the People's Courts at all levels of Dak Lak province complied with the provisions of the law: determining the crime and deciding the penalty for each crime, then synthesizing the penalties according to the provisions of Article 50 of the Penal Code.

2.2.2.3. Determination of crime in case of complicity in the crime of fraud and appropriation of property

There are many forms of complicity such as simple complicity, complex complicity, complicity without prior conspiracy and complicity with prior conspiracy.

In the case of simple complicity, determining the crime of fraud and appropriation of property is not difficult because all the accomplices are executors, that is, people who directly carry out the act of appropriation of property.

For example: The couple Ho Viet My - Tran Thi Minh Huong had the intention of defrauding and appropriating other people's property by brokering bank loans. Nguyen Hong Huong (My's friend) introduced Mr. Hua Trung Nguyen, Ton Duc Van, Ly Van Thuan and Ton Van Hoang to ask the couple My - Huong to broker a bank loan with the condition that if they borrowed 100,000,000 VND, they had to pay the couple My - Huong 13,000,000 VND in advance as transaction fees, along with the land use rights certificate, household registration book and identity card; the couple My - Huong guaranteed that the bank loan period would be within one month and Mr. Nguyen, Van, Thuan and Hoang agreed and handed over the money, land use rights certificate, household registration book and identity card to the couple My - Huong.

After receiving the money and documents, My and Huong did not transact with the bank to borrow money but kept all the land use right certificates, household registration books and identity cards, and used the money for family expenses. After many times of asking but with no results, Mr. Nguyen, Van, Thuan and Hoang asked My and Huong to return all the money they had received along with the land use right certificates, household registration books and identity cards. My and Huong returned the land use right certificates, household registration books and identity cards to Mr. Nguyen, Van, Thuan and Hoang and wrote a commitment to return the money. After many times of asking for money, not only did My and Huong not return it but also deliberately evaded responsibility, so Mr. Nguyen, Van, Thuan and Hoang filed a complaint against My and Huong for their fraudulent behavior.

In the first instance criminal judgment No. 49/2013/HSST dated September 26, 2013, the People's Court of Buon Ho town applied Clause 1, Article 139; points b, g, h, p, Clause 1, Clause 2, Article 46 of the Penal Code to sentence defendant Ho Viet My to 01 year in prison and defendant Tran Thi Minh Huong to 09 months in prison for fraud and appropriation of property. The term of imprisonment is calculated from the date of execution of the sentence.

In the above case, Ho Viet My acted as the initiator, and Tran Thi Minh Huong acted as an accomplice. The fact that the Trial Panel of the People's Court of Buon Ho Town applied Clause 1, Article 139 of the Penal Code to convict Ho Viet My and Tran Thi Minh Huong of fraud and appropriation of property is completely legal, in accordance with the law, and the punishment is commensurate with the severity of the crime.

For cases where there are complex forms of complicity, in determining the crime of fraud and appropriation of property, one of the issues that needs to be clarified is the role of each offender in that case.

For example: The couple Nguyen Thi Ha and Y Son Mlo cut 450m2 from the plot.

The land area of 1,125m2 was transferred to the family of Mr. Be Van Quyet and Mr. Be Ich Ban for 105,000,000 VND. Mr. Ban and Mr. Quyet paid enough money to buy 450m2 of land for the couple Son - Ha. After that, the People's Committee of Krong Nang district issued a land use right certificate for Mr. Ban's family for 300m2 and Mr. Quyet's family for 150m2 .

The couple Nguyen Thi Ha and Y Son Mlo continued to transfer the 150m2 plot of land in the area transferred to Mr. Quyet and Mr. Ban to Ms. Hoa for 200,000,000 VND to deduct the debt of 175,000,000 VND. Ha asked Ms. Hoa to give an additional 50,000,000 VND, of which 25,000,000 VND was the remaining land price and 25,000,000 VND was lent to Ha by Ms. Hoa. The transfer of land to Ms. Hoa by Ha was confirmed by the commune cadastral officer, Mr. Y Lia Nie, and the commune Vice Chairman, Mr. Y Teo Nie. After that, the People's Committee of Dlie Ya commune inspected and discovered that

The land plot that Ha transferred to Ms. Hoa was transferred to Mr. Be Van Quyet and Mr. Be Ich Ban, so the decision was made to revoke the land transfer paper from Nguyen Thi Ha to Ms. Nguyen Thi Kim Hoa.

Thus, Nguyen Thi Ha and Y Son Mlo abused their trust to appropriate 175,000,000 VND of money previously borrowed from Ms. Hoa and fraudulently appropriated it.

25,000,000 VND of Ms. Hoa, total amount of embezzled money is 200,000,000 VND.

The second act of Nguyen Thi Ha was performed as follows:

The 6,395m2 plot of land in Buon Yun, Dlie Ya commune (with land use right certificate No. AH335420) of the couple Ha - Son Nam was forcibly seized by the Civil Judgment Enforcement Office of Krong Nang district, after which the family of Mr. Tran Minh Vui and Ms. Pham Thi Dang Hanh auctioned the above plot of land to collect Ha's loan debt. After that, Nguyen Thi Ha still mortgaged 02 plots of land in Buon Yun, Dlie Ya commune, Krong Nang district, including the 6,395m2 plot of land in land use right certificate No. AH335420 that was forcibly seized and the 406m2 plot of land in land use right certificate No. BA790127 to the Development Investment Bank, North Dak Lak branch in Buon Ho town to borrow 200,000,000 VND.

The Krong Nang District Property Valuation Council concluded: the 406m2 land plot in land use right certificate No. BA790127 is worth 162,400,000 VND. Ha used the land plot with land use right certificate No. AH335420 which was forcibly seized by the Enforcement Agency to mortgage to the bank for a loan of 200,000,000 VND while Ha's assets were only 162,400,000 VND, thus Ha defrauded and appropriated 37,600,000 VND from the Development Investment Bank, North Dak Lak branch in Buon Ho town.

The third act of Nguyen Thi Ha was performed as follows:

Nguyen Thi Ha continued to fraudulently transfer to Ms. Dang Thi Thuy Lan a 6,395m2 plot of land ( which had been forcibly seized by the Enforcement Agency and was also the plot of land that Ha fraudulently mortgaged to the Development Investment Bank, North Dak Lak branch in Buon Ho town) for 600,000,000 VND to deduct the money Ha had previously borrowed from Ms. Lan of 50,000,000 VND, from Ms. Hoa (Nghi) 50,000,000 VND, from Ms. Loan 7,000,000 VND, from Ms. Hoa (Cuong) 57,000,000 VND, for a total of 164,000,000 VND. Ha told Ms. Lan that the land use right certificate was being mortgaged at the bank and Ha gave Ms. Lan a photocopy of the land use right certificate No. AH335420.

Review and agree to deduct Ha's debt from the bank of 210,000,000 VND

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