Pham Ngoc Ly drove Tran Thi Muon to Tuyen Son bridge, Hoa Cuong Nam ward, but Ly did not know that Ngoc forced Ms. Muon into the car. In addition, Ly also slapped Ms. Muon, but with the purpose of preventing the two from fighting and without causing any consequences. Ly's actions did not constitute a crime, so the investigation agency had a basis for not prosecuting Ly.
Regarding Pham Van Lam, who prepared a 60cm long iron rod to Trinh's restaurant when he heard Ngoc say "I was beaten at Trinh's restaurant", with the purpose of rescuing Ngoc, but Lam did not use this iron rod and did not know Ngoc forced Ms. Muon into the car, Lam's actions did not constitute a crime, so the investigation agency did not prosecute Lam, which was reasonable, so the Procuracy did not mention it.
On February 5, 2016, defendant Do Van Ngoc filed an appeal with the following content: The first instance judgment was too harsh - requesting a reduction in the sentence.
On February 24, 2016, the People's Procuracy of Da Nang City issued Appeal Decision No. 04/QD-KNPT with the following content:
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Appealing the entire first instance criminal judgment No. 08/2016/HSST dated January 28, 2016 of the People's Court of Hai Chau District, Da Nang City. Requesting the People's Court of Da Nang City to try the case according to the appeal procedure in the direction of annulling the entire first instance judgment for reinvestigation.
The Criminal Appeal Judgment No. 87/2016/HSPT dated May 17, 2016 of the People's Court of Da Nang City decided to: Cancel the entire content of Judgment No. 08/2016/HSST dated January 28, 2016 of the People's Court of Hai Chau District, Da Nang City.
Hand over the case file to the People's Procuracy of Hai Chau district, Da Nang city for re-investigation.
Reason for annulling the first instance judgment: Pham Ngoc Ly's objective behavior,
Pham Van Lam was an accomplice who assisted the defendant Do Van Ngoc in illegally detaining people, but the court of first instance did not consider criminal responsibility for Pham Ngoc Ly, Pham Van Lam let the crime go unpunished. On the other hand, regarding the vehicle with license plate 43K1-06517 as a means and tool of crime, the Investigation Agency needs to handle it according to the provisions of law.
In addition, the case file (BL 76a) shows that on September 16, 2015, the investigation agency issued a Decision to request an injury assessment for the victim Tran Thi Muon, but the assessment results have not yet been available (while the victim did not request an assessment). The statements and minutes of Pham Ngoc Ly's testimony show that after learning about Ngoc's arrest, Ly went to Hoa Cuong Nam Ward Police to report, but the file does not contain any minutes or statements from Pham Ngoc Ly at Hoa Cuong Nam Ward Police. These issues also need to be clarified.
With the above shortcomings of the first instance court, the appellate court could not supplement and clarify at the trial. Therefore, the appellate panel found it necessary to accept the appeal of the People's Procuracy of Da Nang City, annul the first instance judgment for reinvestigation, and criminally prosecute Pham Ngoc Ly and Pham Van Lam according to the provisions of law.
2.2. Results achieved from practice
The stage of committing a crime not only reflects the level of criminal intent but also directly relates to the criminal responsibility of the offender. Therefore, the establishment of a reasonable principle to determine the stage of committing a crime, creating a theoretical basis for correctly determining the stage of committing a crime for specific criminal cases, is meaningful both in theory and practice. The stage of committing a crime is understood as the steps in the process of committing a crime intentionally, including: preparing to commit a crime, attempted crime, and completed crime. These stages of committing a crime reflect the levels of committing a crime.
Different crimes and therefore, also reflect different levels of danger to society. For that reason, Vietnamese criminal law as well as criminal law of many countries in the world have provisions determining that the penalty applied to cases of preparing to commit a crime is lighter than the penalty for cases of attempted crimes and the penalty applied to both of these crimes is lighter than the penalty applied to cases of completed crimes.
In the past, the People's Court at two levels in Da Nang city has tried a number of criminal cases at the stage of incomplete crime. All case files were closely studied by the Judge - Chief Judge of the trial. In the case of the stage of preparing to commit a crime, although there are unclear and difficult-to-apply regulations in practice, the prosecuting agencies have not yet prepared a file and tried any defendant who committed a crime at the stage of preparing to commit a crime. For crimes at the stage of incomplete crime, the Trial Council has considered and evaluated the entire case file, objective conditions, subjective causes, motives, purposes as well as the identity, relatives of the offender, the fault of the victim... in order to decide and impose a sentence appropriate to the nature and extent of the law violation committed by the defendant. Therefore, from 2011 to 2015, there were 08 cases brought to trial by the People's Court at two levels in Da Nang city at the stage of incomplete crime. All decisions of the 08 Judgments applied Article 18 and Article 52 of the Penal Code with sentences that were sufficient to deter criminals, and had educational and general preventive nature.
The remaining cases are all at the stage of completed crimes. During the period from 2011 to 2015, the number of criminal cases accepted and tried under the first instance procedure each year always accounted for a large proportion and tended to increase. According to the Summary Report on Trial Work from 2011 to 2015, the total number of criminal cases accepted and tried by the People's Court of the city
Da Nang and the first instance and appeal trials of the People's Court of Da Nang city, with specific numbers as follows:
+ Of the People's Court of Da Nang city:
In 2011, 962 cases/1,643 defendants were accepted; 962 cases/1,643 defendants were resolved.
In 2012, 845 cases/1,599 defendants were accepted; 834 cases/1,582 defendants were resolved ( 11 cases/17 defendants remaining );
In 2013, 963 cases/1,665 defendants were accepted; 950 cases/1,645 defendants were resolved; ( 13 cases/20 defendants remain );
In 2014, 939 cases/1,526 defendants were accepted; 934 cases/1,515 defendants were resolved; ( 5 cases/11 defendants remaining );
In 2015, 981 cases/1,583 defendants were accepted; 975 cases/1,575 defendants were resolved; ( 06 cases/08 defendants remain );
+ Of the People's Court of Da Nang City (first instance and appeal trial) :
In 2011, 353 cases/506 defendants were accepted; 353 cases/506 defendants were resolved.
In 2012, 371 cases/603 defendants were accepted; 366 cases/594 defendants were resolved; (Remaining 05 cases/09)
In 2013, 360 cases/589 defendants were accepted; 359 cases/586 defendants were resolved; ( 1 case/3 defendants remaining );
In 2014, 344 cases/495 defendants were accepted; 343 cases/493 defendants were resolved; ( 1 case/2 defendants remaining );
In 2015, 368 cases/525 defendants were accepted; 360 cases/515 defendants were resolved (8 cases/10 defendants remaining).
Thus, the total number of first-instance criminal cases accepted and resolved by the People's Court of Da Nang City from 2011 to 2015 was: Accepted 4,690 cases/8,016 defendants; resolved 4,655 cases/7,960 defendants. Of which, the number of first-instance criminal cases accepted and resolved by the district level accounted for the largest number.
Except for the 08 cases tried for the stage of incomplete crimes, all of the above Judgments were tried at the stage of completed crimes. The specific results of the settlement of the above cases are as follows:
In 2011, the supplementary investigation files were returned to the Procuracy for 06 cases/10 defendants. In 2012, the supplementary investigation files were returned to the Procuracy for 17 cases/102 defendants; In 2013, the supplementary investigation files were returned to the Procuracy for 12 cases/39 defendants; In 2014, the supplementary investigation files were returned to the Procuracy for 05 cases/08 defendants; In 2015, the supplementary investigation files were returned to the Procuracy for 15 cases/48 defendants;
Through studying the case file, the Judge discovered procedural errors and violations and lacked important evidence that could not be supplemented at the trial, so he had to issue a decision to return the case file for further investigation to the Procuracy. Such important evidence could be: Whether a crime occurred; evidence proving the time, location and other details of the crime; who committed the crime; whether or not he was at fault; whether or not he had the capacity to bear criminal responsibility; purpose and motive of the crime; evidence proving aggravating and mitigating circumstances of the defendant's criminal responsibility; evidence to prove the nature and extent of damage caused by the crime... If one of these evidences is missing, it will greatly affect the determination of the objective truth of the case, leading to the application of the law and the wrong decision of the judgment or decision when issued. Therefore, issuing a decision to return the case file for further investigation in these cases is necessary. Through the return of the additional investigation file, the Investigation Agency and the Procuracy have overcome the shortcomings in the investigation and prosecution stages, the Court will continue to issue a decision to bring the case to trial and the trial at the court will take place objectively, ensuring accuracy.
Through the appeal trial, the People's Court of Da Nang City discovered errors and violations of the first instance court, so it annulled 38 judgments and revised 267 judgments.
The remaining judgment is to maintain the original judgment or suspend the appeal trial due to withdrawal of appeal or protest against the judgment appealed or protested to the Da Nang City Court for appeal trial.
The application of law by litigants in the trial of criminal cases by the two-level People's Court of Da Nang City in recent years has always been accurate and in accordance with the law. Through the appellate trial, the People's Court of Da Nang City has discovered errors of the District and County Courts in the application of the law and promptly corrected these errors for the District and County Courts. Thereby, contributing to improving the quality of law application in the first-instance trial of criminal cases by the District Court in particular and the People's Court system of Da Nang City in general.
2.3. Difficulties, limitations, shortcomings and causes
In the process of applying the law on regulations for the stages of committing crimes, it shows that: For the stage of preparing to commit a crime, the People's Court at two levels of Da Nang city has not tried any cases. For completed crimes, the author has analyzed the results achieved in section 2.4. Currently, in terms of theory, the regulations on the stage of preparing to commit a crime and incomplete crimes still have many different understandings and viewpoints. This leads to difficulties in applying the law for the agencies conducting the proceedings, specifically:
Firstly, in terms of concept, Article 18 of the 1999 Penal Code does not provide complete, accurate, and does not clearly reflect the nature of an attempted crime. In the act of an attempted crime, the sign of "beginning to commit the crime" is the sign that determines the first moment and is also the basic sign to distinguish an attempted crime from preparation for a crime, while "... not carrying it out to the end..." can be understood as not being able to carry it out to the end compared to the subject's predetermined purpose or plan (in fact, here it is compared to the time the crime is legally completed). Furthermore, in the definition of the
The concept of attempted crime does not recognize the general principle of determining criminal responsibility for incomplete crimes, and there is no legal definition of incomplete crimes.
Second, as mentioned, based on the purpose of carrying out the criminal intention that the offender intends to commit, the Vietnamese criminal law science can divide attempted crimes into two types as follows: Incomplete attempted crimes and completed attempted crimes that have not been specified in the Penal Code.
Third, the provisions in Clause 3, Article 52 of the Penal Code on deciding on penalties in cases of attempted crimes still reveal some limitations:
1) Clause 3, Article 52 stipulates: "... if it is a fixed-term imprisonment, the penalty shall not exceed three-quarters (3/4) of the prison term prescribed by law". This way of writing is not strict, and can lead to different interpretations, leading to different decisions on penalties in practice, which the author has analyzed in this thesis. 2) Clause 3, Article 52 does not specify the applicable penalty framework but only generally states 3/4 of the prison term prescribed by law. 3) Clause 3, Article 52 of the Penal Code also stipulates that in the case of an attempted crime - if the applicable law stipulates the highest penalty of life imprisonment or death penalty, these cases can be applied in particularly serious cases.
Fourthly, the above issue has also led to debate in criminal law science. The necessity of perfecting the provisions of the current 1999 Vietnamese Penal Code on attempted crimes. Continuing to amend and supplement old provisions, and developing new provisions to perfect Vietnamese criminal law on attempted crimes is an urgent requirement, promptly serving the practical struggle to prevent and combat crimes in the new situation, especially when the crime has not been completed. However, the innovation and
This improvement must be based on the viewpoints of our Party and State on the fight against crime, on the basis of summarizing practices and must be a solid legal basis that reflects the ideas of legality, humanity, democracy, as well as being consistent with the criminal laws of countries in the trend of regional and international integration... Therefore, the necessity of perfecting the provisions in the Vietnamese Penal Code is also completely consistent with the content of Resolution No. 48-NQ/TW dated May 24, 2005 of the Politburo "On the Strategy for building and perfecting the Vietnamese legal system until 2010, with a vision to 2020".
Chapter 2 Conclusion
Chapter 2 of the Thesis analyzes the practical application of the provisions of current Vietnamese criminal law on the stages of committing crimes in Da Nang city. This chapter focuses on analyzing the practical application of the law to specific stages of committing crimes, with examples of judgments in each case to demonstrate. From there, analyze, evaluate and comment on the results achieved from practice and point out some difficulties, limitations, shortcomings as well as the causes of the shortcomings in the application of the law to the stages of committing crimes of the People's Courts in Da Nang city.