Determining the crime of fraud and appropriation of property under Vietnamese criminal law from the practice of Hanoi city

Faced with the complicated situation of property fraud crimes, which have negative impacts on the economic, political, cultural, social fields... as well as the need to strengthen the fight against crimes of property rights infringement, and at the same time to directly serve the practical trial work of the Court, the author chose the topic: "Defining the crime of property fraud according to Vietnamese criminal law from the practice of Hanoi city" as a master's thesis in law .

2. Research status of the topic

Determination of crime has great significance in terms of politics, society, ethics and law. Therefore, the activity of conviction has been mentioned in many legal scientific research works in our country:

Regarding reference materials such as books and textbooks, there are: "Criminal Law Textbook, Crimes - For Postgraduate Students" by author Vo Khanh Vinh, editor-in-chief, Hanoi 2015; "Commentary on the Criminal Code, Crimes" by author Do Ngoc Quang, Hanoi 2012; "Some general theoretical issues on crime determination" , Chapter I, Vietnamese Criminal Law Textbook - Faculty of Law, Vietnam National University, Hanoi, 2003 by Prof. Dr. Le Cam; Monograph "Criminal Determination - Theory, sample instructions and 350 practice exercises" , Hanoi National University Publishing House, 2004, reprinted in 2011 by Prof. Dr. Le Cam and Associate Professor Dr. Trinh Quoc Toan; "Some theoretical issues on crime determination and guidance on crime determination methods", Hanoi National University Publishing House, 1999 by Associate Professor Dr. Trinh Quoc Toan.

Regarding the reference documents, the articles published in specialized journals include: " Determining crime names - Some theoretical and practical issues" , People's Court Journal, issues 3, 4, 5, 8, 11, 1999 by Prof. Dr. Le Cam; " The element of position and authority in crimes against property; Some issues of complicity in crimes against property; Subjects of crimes against property; The issue of determining crime names in crimes against property" , State and Law Journal, issues 11, 6, 2, 8, 1997 by Assoc. Prof. Dr. Nguyen Ngoc Chi; " Understanding the concept and basic characteristics of crimes according to Vietnamese criminal law" , State and Law Journal, issue 6, 2001 by Prof. Dr. Dao Tri Uc; "Changing crime names - some theoretical and practical issues"

Maybe you are interested!

farewell" , People's Court Magazine No. 11, 2003 by Prof. Dr. Vo Khanh Vinh; etc... The above textbooks, monographs and research articles have summarized

Understand general theoretical issues related to crime determination and crime determination practice; analyze, evaluate, and identify factors related to crime determination, and at the same time distinguish between crimes in the 1999 Penal Code...

However, there is currently no specific research on the issue of determining the crime of fraud and property appropriation in Hanoi.

3. Research purpose and tasks

The purpose of this research is to scientifically analyze to clarify some theoretical and practical issues on criminalization in general and criminalization of property fraud in particular, thereby proposing solutions to improve the effectiveness of criminalization of property fraud in Hanoi.

Accordingly, the research task is to clarify the following issues:

- Concept and characteristics of crime determination.

- Legal basis, legal basis for determining the crime.

- Determination of crimes in some special cases.

- Characteristics of the crime of fraud and appropriation of property.

- Characteristics and requirements for determining the crime of fraud and appropriation of property.

- The current status of the crime of fraud and appropriation of property.

4. Research object and scope

Regarding the research object, the topic focuses on studying the practice of determining the crime of fraud and appropriation of property at the People's Court of Hanoi City on the basis of the 1999 Penal Code, amended and supplemented on June 19, 2009 and the 2015 Penal Code (not yet in effect).

The scope of the study is the provisions of the Penal Code on crimes in general and the crime of fraud to appropriate property in particular; the practice of determining the crime of the two-level Court of Hanoi city for the crime of fraud to appropriate property from 2012 to 2016 in Hanoi city.

5. Methodology and research methods

The topic is researched on the basis of Marxist-Leninist theory on dialectical materialism and historical materialism, Ho Chi Minh's thought on the state and the rule of law, the Party's viewpoints and orientations on criminal policy; viewpoints and guidelines for handling crimes against property in general and crimes of property fraud in particular.

Specific research methods include: analysis, synthesis, statistics, comparison, especially analysis and synthesis of data based on judgments, decisions, statistics, summary reports of Courts at all levels; using the method of legal comparison to compare with legal regulations to find new points in the research process.

6. Theory and practice of the thesis

In the current judicial reform in our country, research to clarify theoretical and practical issues on the definition of crimes in general and the definition of crimes of fraud and appropriation of property in particular is always one of the basic requirements, and at the same time, the task of criminal law science. This is very important, expressed in the three main aspects below:

a) In terms of legislation, in addition to current regulations such as the 1999 Penal Code, amended in 2009, the 2003 Criminal Procedure Code, regulations and instructions on defining crimes in general and defining crimes of fraud and appropriation of property in particular are still fragmented, scattered in many different legal documents such as Joint Circular No. 02/2001/TTLT-TANDTC-VKSNDTC-BCA-BTP dated December 25, 2001 of the Supreme People's Court, the Ministry of Justice, and the Ministry of Public Security guiding the application of a number of provisions in Chapter XIV "Crimes of infringement of property of the 1999 Penal Code", Resolution No. 01/2001/NQ-HDTP dated March 15, 2001 of the Council of Judges of the Supreme People's Court on guiding the application of a number of provisions of Articles 139, ... 193, 194, 278, 279, and 289 of the 1999 Penal Code... lead to a lack of unity and uniformity in the interpretation of the law.

b) In practice, the practice of determining the crime of fraud and appropriation of property nationwide in general and in the People's Court of Hanoi in particular has shown the weakness of a number of cadres and civil servants in recognizing and properly applying the provisions of criminal law, leading to low effectiveness in the fight against crime, sometimes letting criminals escape, causing damage to the rights and freedoms of citizens, reducing the effectiveness of the fight against crime.

c) In theory, the issue of determining the crime of fraud and appropriation of property has been mentioned in many different research works, but there is currently no research mentioning the determination of the crime of fraud and appropriation of property in Hanoi city.

So:

- Through the research on the topic to clarify the legal aspects of crime determination in general and crime determination of fraud and property appropriation in Hanoi city in particular is to contribute to building and perfecting the theory of crime determination in criminal law science.

- Is a reference document for prosecution agencies, especially the Court, in determining the crime and resolving criminal cases correctly.

- Is the basis for making recommendations to improve criminal law related to the definition of crimes in general and the definition of crimes of fraud and appropriation of property in particular.

7. Structure of the thesis

In addition to the introduction, conclusion and list of references, the thesis consists of 3 chapters:

Chapter 1. General issues on determining the crime of fraud and appropriation of property.

Chapter 2. Practice of determining the crime of fraud and appropriation of property in Hanoi city.

Chapter 3. Solutions to improve the effectiveness of criminal prosecution of property fraud in Hanoi city.

Chapter 1

GENERAL ISSUES ON DETERMINING THE CRIME OF FRAUD AND THEORY OF PROPERTY

1.1 Theoretical issues on the crime of fraud and appropriation of property under Vietnamese criminal law

1.1.1. Concept of crime of fraud and appropriation of property

To date, the 1999 Penal Code has been in effect for more than 10 years and was most recently amended and supplemented in 2015 (not yet effective). In the 1985 Penal Code, fraud to appropriate property was defined as two crimes: the crime of fraud to appropriate socialist property defined in Article 134 and the crime of fraud to appropriate citizens' property defined in Article 157. However, in the 1999 Penal Code, it was only defined as one crime of fraud to appropriate property in Article 139, applicable to all forms of ownership. This shows that our Party and State no longer distinguish between the position and role of each form of ownership, but consider the resolute fight against all crimes of property infringement in different forms to be a common task of the whole society. In the Penal Code, the group of crimes against property is divided into two groups: crimes against property with the nature of appropriation and crimes against property without the nature of appropriation. With this division, the crime of fraud to appropriate property belongs to the group of "crimes against property with the nature of appropriation".

Crimes against property are regulated from Article 133 to Article 145 of the Penal Code, but there is no concept of what crimes against property are. This concept is only shown in research documents. Briefly expressed: "Crimes against property are acts of people with responsible capacity.

"Criminal acts committed intentionally or unintentionally, infringing upon the property rights of the State, organizations or individuals" [37].

The crime of fraud to appropriate property is one of the crimes against property. Therefore, the concept of the crime of fraud to appropriate property must also satisfy the general concept of crimes against property, and must also satisfy the following signs:

specific effect. Criminal law science, when introducing the concept of the crime of fraud to appropriate property, emphasized the aspect of tricks, stating that: (The crime) of fraud to appropriate property is the act of appropriating another person's property by deceitful tricks.

However, the above concept only refers to the crime of fraud and appropriation of property in the most general aspect. Based on the provisions of Article 139 of the 1999 Penal Code, amended and supplemented in 2009, a person who commits the crime of fraud and appropriation of property is when:

Anyone who, by fraudulent means, appropriates another person's property worth from five hundred thousand dong to less than fifty million dong, or less than five hundred thousand dong but causing serious consequences, or has been administratively sanctioned for the act of appropriation or has been convicted of the crime of appropriation of property, whose criminal record has not been expunged, but who continues to commit the violation, shall be subject to non-custodial reform for up to three years or imprisonment from six months to three years [7].

In the 2015 Penal Code (not yet in effect), lawmakers have clarified the seriousness of the crime right from its basic structure. Clause 1, Article 174, Crime of fraud to appropriate property, stipulates:

Anyone who, by fraudulent means, appropriates another person's property worth from VND 2,000,000 to under VND 50,000,000 or under VND 2,000,000 but falls into one of the following cases, shall be subject to non-custodial reform for up to 03 years or imprisonment from 06 months to 03 years: a) Having been administratively sanctioned for the act of appropriating property but still committing the violation; b) Having been convicted of this crime or of one of the crimes specified in Articles 168, 169, 170, 171, 172, 173, 175 and 290 of this Code, not having had his/her criminal record expunged but still committing the violation; c) Having a negative impact on social security, order and safety; d) The property is the main means of livelihood of the victim and their family; Property is a souvenir, relic, or object of worship that has special spiritual value to the victim. [9, p.3].

Specific regulations are necessary for understanding and enforcing the law. However, point d) Clause 1 Article 174 adds the provision: Property is the main means of livelihood of the victim and their family; property is a souvenir, relic, or worship object of special spiritual value to the victim , many opinions say that such a provision is too broad and difficult to apply in practice.

Thus, the crime of fraud and appropriation of property is one of the crimes against property, with the purpose of appropriating the property of others. The offender has used deceitful tricks, provided false information, possibly by words or actions, to cause the property or the person responsible for keeping the property to believe wrongly, thinking the fake is real, thinking the fraudster is an honest person, voluntarily handing over the property to the offender.

From there, we can understand the concept of the crime of fraud and appropriation of property: is the act of fraudulently appropriating another person's property worth two million VND or more, or less than two million VND but causing serious consequences, or having been administratively sanctioned for the act of appropriation or having been convicted of the crime of appropriation of property, not having had the criminal record cleared but still violating, committed intentionally by a person with criminal responsibility, violating the property ownership relationship.

1.1.2. Legal signs of the crime of fraud and property appropriation

The characteristic legal signs of the crime of fraud and appropriation of property include: Object of the crime, objective aspect of the crime, subject of the crime and subjective aspect of the crime.

1.1.2.1. Subject of the crime of fraud and appropriation of property

The object of the crime of property fraud is the property ownership relationship, which is the main social relationship that the act of property fraud violates. This is the difference between the crime of property fraud and some other property crimes that simultaneously violate many different objects such as property robbery, property snatching, kidnapping for the purpose of property appropriation... because in addition to the object of property relationship, the offender also violates another important object, which is the right to protection of the life and health of the victim.

Ownership is a relationship in which the right to possess, use and dispose of property is respected and protected. This relationship is damaged or threatened by crime through the change of the normal state of material objects (property) that are part of the ownership relationship.

Like all other crimes, property infringement also has a specific target, which is property. "Property includes: objects, money, valuable papers and other

Property rights" [13, p.5]. Property is the subject of the crime of fraud and appropriation of property and can be of any form of ownership recognized by law and must be expressed in material form, because what is not material cannot be the subject of appropriation. Therefore, not all cases of property rights are the subject of the crime of fraud and appropriation of property.

For example, a will on a person's inheritance rights is not subject to the crime of property fraud, but documents showing property rights such as receipts for goods... can still be subject to the crime of property fraud in certain cases.

However, it should be noted that, due to the special features and uses of the property, some properties cannot be considered the subject of the crime of fraud and appropriation of property, but are the subject of other crimes: For example: forest resources, constructions, means of transport, communications, drugs, military weapons, etc.

Thus, the law in general and criminal law in particular always protect legal ownership and only protect legal ownership, so in principle, the property protected by criminal law must be legal property. However, that does not mean that other illegal acts of encroachment on citizens' property are not considered crimes. In many cases, these acts are still considered illegal and may constitute the crime of fraud and appropriation of property.

1.1.2.2. Objective aspects of the crime of fraud and appropriation of property

The objective aspect is the external aspect of the criminal act as prescribed by the Criminal Law. The objective aspect of a crime includes: the criminal act, harmful consequences and the causal relationship between the criminal act and the consequences that occur. In addition, there are a number of other signs that also characterize the objective aspect of a crime, such as the circumstances, time, tools and means of committing the crime. The objective aspect is an important element of a crime; the danger of a crime is determined by all of its elements.

The objective aspect of a crime is one of the four elements of a crime. Without the objective aspect, there would be no other elements of a crime and therefore no