Distinguishing Crimes in the Field of Land Management and Use from Some Other Crimes in the 1999 Penal Code

- Arbitrarily converting, transferring, donating, leasing, subleasing, inheriting, mortgaging, guaranteeing, or contributing capital using land use rights for land that does not meet the conditions (Article 13);

- Receiving transfer of land use rights but not meeting the conditions for receiving transfer of land use rights according to the provisions of the law on land (Article 14);

- Not registering land use rights for the first time, not registering changes in land use rights, registering the wrong type of land, not registering when changing land use purposes, not registering for land use extension when the land use term expires while using the land (Article 15);

- Obstructing the State in land allocation, land lease, land recovery, compensation, and site clearance (Article 16);

- Failure to return land on time according to the land recovery decision of the competent state agency (Article 17);

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- Arbitrarily moving, distorting, or damaging land use planning boundary markers, construction safety corridor boundary markers, or administrative boundary markers (Article 18);

- Falsifying documents and certificates in land use (Article 19);

- Delay in putting land into use according to the provisions of the law on land (Article 20);

- Delay or failure to provide information, papers and documents related to inspection and examination; obstructing land inspection and examination (Article 21).

Regarding the time limit to be considered as not having been administratively sanctioned: According to the provisions of the Law on Handling of Administrative Violations, that time limit is determined as: "within 06 months from the date of completion of the warning penalty decision or 01 year from the date of completion of another administrative penalty decision or from the date of expiration of the statute of limitations for the execution of the administrative penalty decision without re-offending" [55, Clause 1, Article 7].

The implementation of an administrative penalty decision is considered "completed", calculated from the time of completion of all obligations and requirements stated in the decision or from the date the decision is enforced. Regarding the statute of limitations for implementing an administrative penalty decision, it is "one year from the date of issuance of the decision... In case the individual... being penalized intentionally evades or delays, the above statute of limitations is calculated from the time the act of evasion or delay ends" [55, Article 74].

From the above provisions, the sign "having been administratively sanctioned for this act but still violating" is understood as: a person who has been administratively sanctioned for a violation in the field of land use for one of the acts prescribed from Article 8 to Article 21 of Decree No. 105/2009/ND-CP, if from the date the sanction decision is issued until the end of the 06-month period from the date of completion of the warning sanction decision or 01 year from the date of completion of the other administrative sanction decision, the date the sanction decision is enforced or the date of expiration of the statute of limitations for the enforcement of the administrative sanction decision, continues to commit one of the above violations, it is considered "having been administratively sanctioned for this act but still violating". That act is considered a crime and the person committing the act is prosecuted for criminal liability according to Clause 1, Article 173 of the Penal Code.

* About the sign "having been convicted of this crime, not yet had the criminal record cleared but still committing the crime"

From the perspective of criminal law science, a criminal record is understood as the legal status of a person who has been convicted and sentenced for a certain crime. In other words, when a criminal has been sentenced by the Court, the legal consequences that they must bear are not only having to serve that sentence but also being considered to have a criminal record - a bad personal characteristic, disadvantageous for people with that characteristic in many activities of social life (recorded and saved in the judicial record for a certain period of time) as well as when there is an act of violating the law or committing a new crime.

A criminal record is not a permanent personal characteristic. After a certain period of time and under specific conditions stipulated by law, the criminal record will be erased. With the erasure of the criminal record, the convicted person is considered to have not committed a crime and thus, there will be no basis for determining recidivism or dangerous recidivism if they commit a new crime.

Thus, in addition to bad personal circumstances such as: having been administratively punished for this act but still violating, having been disciplined for this act but still violating, the circumstance of having a criminal record (having been convicted of this crime, not yet cleared of the criminal record but still violating) is also stipulated by our country's criminal legislators as an independent sentencing circumstance or a sentencing circumstance replacing the circumstance of "dangerous consequences for society" in many crimes. The crime of violating regulations on land use is one of many crimes with such characteristics.

Along with the two signs "causing serious consequences" and "having been administratively punished for this act but still violating", "having been convicted of this crime, not yet had the criminal record cleared but still violating" are also determined as circumstances (signs) determining the crime of Violating regulations on land use. That is, the person who commits the act of violating regulations on land use, if not falling into the case of "causing serious consequences" or "having been administratively punished for this act but still violating" but falling into the case of "having been convicted of this crime, not yet had the criminal record cleared but still violating", then that act is determined to be a crime and the person who committed the act must bear criminal responsibility according to the provisions of Clause 1, Article 173 of the Penal Code.

According to the guidance of the Supreme People's Court's Judicial Council, "having been convicted of this crime, not yet had his criminal record expunged, but still committing a violation" is understood as "a person who has previously been convicted of a crime, not yet had his criminal record expunged, but still commits one of the acts listed in that crime" [62, Section 7.1]. For the crime of Violating regulations on land use, if a person has previously been convicted of this crime, not yet had his criminal record expunged, but continues to commit one of the following acts: encroaching on land, transferring land use rights, using land contrary to the regulations

of the State on land management and use, then must bear criminal responsibility for the next violation. In this case, the criminal liability for the crime of Violating regulations on land use is a formal criminal liability.

However, if the behavior of a person violating regulations on land use has sufficient elements of criminal liability because it has "caused serious consequences" or "has been administratively sanctioned for this behavior but still violates", then that person's criminal record is not considered a sign of criminal liability "having been convicted of this crime, not yet had the criminal record cleared but still violated" but must be calculated to determine the aggravating circumstance of criminal liability "recidivism, dangerous recidivism" according to the provisions of Point g, Clause 1, Article 48 of the Penal Code.

If the person committing the act has committed a violation but the nature and level of danger to society are insignificant, do not cause serious consequences, have not been administratively punished (or have been punished, but the time limit for being considered as not having been administratively punished) for this act, and have not been convicted (or have been convicted, but the criminal record has been cleared) for this crime, then he/she will not be prosecuted for criminal liability, that act is not a crime.

* The problem of the time of completion of the crime

For the crime of Violating regulations on land use, the time of completion of the crime is determined to be when "serious consequences" have occurred or immediately after the violation is committed if the person committing the violation is in the case of "having been administratively sanctioned for this act but still violating" or "having been convicted of this crime, not yet had his criminal record cleared but still violating".

Thus, the crime of violating regulations on land use has both formal and material components. Depending on the time of the objective act, the consequences of the crime and the bad personal characteristics of the offender, the time of completion of the crime is determined differently; as a basis for assessing the nature and level of danger to society of the violation and sentencing the offender.

c) About the subject of the crime

The subject of the crime of violating regulations on land use is a normal subject, that is, a person with criminal capacity and of criminal age.

Persons from 14 to under 16 years of age shall not be held criminally liable for the crime of Violating regulations on land use, because the violations in this crime are less serious crimes (clause 1) and serious crimes (clause 2). Therefore, only persons from 16 years of age and above shall be held criminally liable for the crimes specified in Article 173 of the Penal Code.

d) Subjective aspect of crime

In the crime of Violating regulations on land use, the crime is only committed by intentional fault (with two forms of direct intentional fault and indirect intentional fault). With the form of direct intentional fault, the offender is fully aware that his/her act of violating regulations on land use is dangerous to society, prohibited by law, foresees the consequences of that act but still intentionally commits it. In the form of indirect intentional fault, the offender is also aware that his/her act is dangerous to society, foresees the consequences of that act that may occur, although not wanting it, still consciously lets the consequences occur.

The offender himself, from the moment the intention to commit the crime arose, was aware of the economic losses that could or would inevitably occur to the State, organizations and citizens. He was also aware that his actions were directly violating the proper functioning of state agencies in the field of land management and use. However, the offender still deliberately committed the violation because of his motive and in order to achieve his goals.

2.2.2. Penalties

Based on the nature, level and structure of the crime, the legislator divides the crime in Article 173 of the Penal Code into three sections, of which two sections correspond to two penalty frames and one section stipulates the application of additional penalties.

a) Regarding the penalties prescribed in Clause 1, Article 173 of the Penal Code

The crime specified in Clause 1, Article 173 of the Penal Code is the basic element of the crime of Violating regulations on land use. The offender falls into one of the following cases: causing serious consequences, having been administratively sanctioned for this act but still violating, or having been convicted of this crime, not having had his criminal record cleared but still violating.

The penalties prescribed and applied to offenders include three types: fines from five million to fifty million dong, non-custodial reform for up to three years, or imprisonment from three months to three years. This is a less serious crime. Therefore, the offender is only subject to criminal liability if he or she is 16 years of age or older.

b) Regarding the penalties prescribed in Clause 2, Article 173 of the Penal Code

Assessing the characteristics and nature of aggravating circumstances in determining the penalty, it is found that:

First, about the "organized" crime.

This is a case where many people participate in the crime of violating regulations on land use. Among them, there is discussion, calculation, planning, assignment of detailed and specific roles and tasks for each member to commit the crime, under the unified control of the leader.

The reality of crimes violating regulations on land use in recent years has been carried out with many extremely sophisticated and cunning tricks, even with collusion and connection with people with positions, positions and powers in state agencies. Along with the violations of land users are acts of intentionally violating the State's regulations on economic management, lack of responsibility causing serious consequences or taking advantage of positions and powers while performing official duties by competent persons or acts of giving and receiving bribes by parties.

Second, about the "repeated offense" circumstance.

From the perspective of criminal law science, Dr. Le Van Cam, Associate Professor, proposed the concept of committing a crime multiple times as "committing two or more crimes that are classified as

specified in the same article (or in the same clause of an article) in the Part of the Penal Code, and at the same time, for those crimes, the statute of limitations for criminal prosecution is still in effect and the offender has not yet been tried" [5, p. 391].

Currently, there is no specific guidance on the circumstance of "committing a crime multiple times" in the crime prescribed in Article 173 of the 1999 Penal Code. However, we can apply the guidance in Joint Circular No. 01/1998/TTLT-TANDTC-VKSNDTC-BNV dated January 2, 1998 of the Supreme People's Court, the Supreme People's Procuracy and the Ministry of the Interior (now the Ministry of Public Security) guiding the application of a number of provisions of the Penal Code amended on May 10, 1997. Accordingly, it can be understood that a crime is considered to have been committed multiple times in the crime of violating regulations on land use if there are two or more violations and each violation has all the basic elements of criminal liability, regardless of the time interval from the previous crime to the next crime. However, a crime is only considered to have been committed multiple times if all of those crimes are still within the statute of limitations for criminal prosecution, the offender has not been tried yet and must be brought to trial at the same time. If in those crimes there has been a trial or the statute of limitations for criminal prosecution has expired, it will not be counted to determine that the crime has been committed multiple times according to the provisions of Point b, Clause 2, Article 173 of the Penal Code.

Third, on the crime circumstance of "causing very serious or especially serious consequences".

Similar to the circumstance of "causing serious consequences" stipulated in Clause 1 of this Article, currently, there is no specific document guiding the offender to cause damage of what nature and extent to be considered causing very serious or especially serious consequences (?) (Although we can apply Joint Circular No. 02/2001/TTLT-TANDTC-VKSNDTC-BCA-BTP to assess the circumstances of the consequences of the crime similar to the crime stipulated in Article 174 of the Penal Code. However, this will not be accurate, easily leading to subjective arbitrariness in assessing the nature and extent of the crime by the Court when trying it). Clarifying this issue plays an extremely important role in resolving cases of violations of regulations on the use of

land, contributing to ensuring that crime handling is timely, accurate, objective, fair, and in accordance with the law.

Committing a crime in one of the cases specified in Clause 2, Article 173 of the Penal Code, the offender shall be "fined from thirty million to one hundred million VND or imprisoned from two to seven years". This affirms that the crimes mentioned here are serious crimes. Therefore, only those who are 16 years of age or older can be prosecuted for this crime.

c) Regarding additional penalties prescribed in Clause 3, Article 173 of the Penal Code

Clause 3, Article 173 of the Penal Code stipulates that in addition to the main penalty, the offender may also be "fined from five million to twenty million VND". This is a discretionary rule, not a mandatory rule. That is, when trying a case, the Court will base on the nature, severity of the crime and the criminal's personal background to decide whether it is necessary to apply additional penalties to them or not.

2.3. DISTINGUISHING CRIMES IN THE FIELD OF LAND MANAGEMENT AND USE FROM SOME OTHER CRIMES IN THE 1999 CRIMINAL CODE

Distinguishing between this crime and other crimes with many similarities is extremely important in the investigation, prosecution and trial. Thanks to that, law enforcement agencies can determine the correct crime and apply appropriate punishment for the offender's violation.

To distinguish between one crime and another, legal researchers often rely on the constitutive elements of the crime. Because specific criminal elements are a collection of all the most characteristic and basic legal signs of that crime.

Let's distinguish crimes of violating regulations on land management and use from some other related crimes below.

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