Distinguishing the Crime of Open Appropriation of Property from Some Crimes According to the Provisions of the 1999 Penal Code

b) Openly appropriating property in the cases specified in Clause 3, Article 137 of the Penal Code.

According to Clause 3, Article 137 of the Penal Code, openly appropriating property in one of the following cases shall be punished by imprisonment from seven to fifteen years: 1) Appropriating property worth from two hundred million VND to less than five hundred million VND; 2) Causing very serious consequences.

- Appropriation of property worth from two hundred million VND to less than five hundred million VND : This is a case where the offender openly appropriates property worth from two hundred million VND to less than five hundred million VND. Determining the value of the property is based on the market value at the time of the crime, because criminal responsibility is the responsibility of a person when committing a crime. In case the prosecuting agency cannot determine the value of the property itself, it must organize an appraisal (assessment of the property).

Although the law only stipulates property appropriation, it does not mean that the offender has appropriated property worth from two hundred million VND to less than five hundred million VND to fall into this case. It is only necessary to determine that the offender has the intention to openly appropriate property of such value to be prosecuted for criminal liability according to Point a, Clause 3, Article 137 of the Penal Code. Whether the offender has appropriated or not is not a mandatory sign.

- Causing very serious consequences : According to the guidance of the Supreme People's Procuracy, the Supreme People's Court, the Ministry of Justice and the Ministry of Public Security, in order to consider in which cases a criminal act causes very serious consequences, in principle, it is necessary to comprehensively and fully assess the consequences (damage to property, damage to life, health and other non-material damages). If causing damage to life, health or property falls into one of the following cases, it is considered very serious consequences: a) Causing the death of two people; b) Causing injury or damage to the health of three to four people at a rate of

Maybe you are interested!

Injury to each person of 61% or more; c) Causing injury or damage to the health of five to seven people with each person's disability rate from 31% to 60%; d) Causing injury or damage to the health of many people with the total disability rate of all these people from 101% to 200% if not falling under the cases guided in points b and c above; dd) Causing property damage worth from 500 million VND to less than one billion 500 million VND; e) Causing damage to life, health and property with consequences falling under two to three points from a to e of the case of serious consequences as analyzed above.

Because this is a penalty framework that represents a very serious crime, when deciding on a penalty, the following points should be noted:

1) If the offender has two or more mitigating circumstances as prescribed in Clause 1, Article 46 of the Penal Code, there are no aggravating circumstances, or if there are aggravating circumstances but the degree of aggravation is not significant, the offender has a good character, has no criminal record, is not an organizer, and deserves leniency, the Court may apply a sentence below the lowest level of the penalty range (less than seven years in prison) but not less than two years in prison.

2) If the other circumstances of the case are the same, apply the principle:

- A person who commits a crime in many cases specified in Clause 3, Article 137 will be punished more severely than a person who commits a crime in only one case specified in Clause 3, Article 137 of the Penal Code;

- A person who commits a crime with many mitigating circumstances as prescribed in Article 46 of the Penal Code will be subject to a lower penalty than a person who commits a crime with no or few mitigating circumstances;

- A person who commits a crime with many aggravating circumstances as prescribed in Article 48 of the Penal Code will be subject to a heavier penalty than a person who commits a crime with no or few aggravating circumstances;

- The greater the damage to property and spirit, the more severe the punishment and vice versa;

- The more the offender compensates for the stolen property, the more the penalty will be reduced compared to the offender who has not compensated or only compensated insignificantly.

c) Openly appropriating property in the cases specified in Clause 4, Article 137 of the Penal Code.

According to Clause 4, Article 137 of the Penal Code, openly appropriating property in one of the following cases shall be punished by imprisonment from twelve to twenty years or life imprisonment: 1) Appropriating property worth five hundred million VND or more; 2) Causing particularly serious consequences.

- Appropriation of property worth five hundred million VND or more : This is a case where the offender openly appropriates property worth five hundred million VND or more. Determining the value of the property is based on the market value at the time of the crime, because criminal responsibility is the responsibility of a person when committing a crime. If the prosecuting agency cannot determine the value of the property itself, it must organize an appraisal (asset valuation).

Although the law only stipulates property appropriation, it does not mean that the offender has appropriated property worth over five hundred million VND or more to be considered a criminal. It is only necessary to determine that the offender has the intention to openly appropriate property of such value to be prosecuted for criminal liability according to Point a, Clause 4, Article 137 of the Penal Code. Whether the offender has appropriated or not is not a mandatory sign.

- Causing especially serious consequences : According to the guidance of the Supreme People's Procuracy, the Supreme People's Court, the Ministry of Justice and the Ministry of Public Security, to consider which cases the criminal act causes especially serious consequences

In principle, it is necessary to comprehensively and fully assess the consequences (property damage, damage to life, health and other non-material damages). If causing damage to life, health or property falls into one of the following cases, it is considered to cause particularly serious consequences: a) Causing the death of three or more people; b) Causing injury or damage to the health of five or more people with each person's disability rate being 61% or higher; c) Causing injury or damage to the health of eight or more people with each person's disability rate being 31% to 60%; d) Causing injury or damage to the health of many people with the total disability rate of all these people being 201% or higher if not falling into the cases guided in points b and c above; e) Causing damage to property worth one billion 500 million VND or higher; e) Causing damage to life, health and property with consequences falling under two or more points in a very serious case.

Because this is a penalty framework representing an especially serious crime, when deciding on a penalty, the following points should be noted:

1) If the offender has two or more mitigating circumstances as prescribed in Clause 1, Article 46 of the Penal Code, there are no aggravating circumstances, or if there are aggravating circumstances but the degree of aggravation is not significant, the offender has a good character, has no criminal record, is not an organizer, and deserves leniency, the Court may apply a sentence below the lowest level of the penalty range (less than twelve years in prison) but not less than seven years in prison.

2) If the other circumstances of the case are the same, apply the principle:

- A person who commits a crime in many cases specified in Clause 4, Article 137 will be punished more severely than a person who commits a crime in only one case specified in Clause 4, Article 137 of the Penal Code;

- The greater the damage to property and spirit, the more severe the punishment and vice versa;

- The more the offender compensates for the stolen property, the more the penalty will be reduced compared to the offender who has not compensated or only compensated insignificantly.

2.1.3. Additional penalties

According to Clause 5, Article 137 of the Penal Code, in addition to the main penalty, a person who commits the crime of openly appropriating property may also be fined from five million to one hundred million Dong. Compared to the crime of openly appropriating socialist property stipulated in Article 131 and the crime of openly appropriating citizens' property stipulated in Article 154 of the 1985 Penal Code, the additional penalty for the crime of openly appropriating property stipulated in Article 137 of the 1999 Penal Code has many points that have been amended and supplemented. Accordingly, the penalty of probation or prohibition of residence, confiscation of part or all of the property, is abolished. The fine is a new penalty prescribed for people who commit the crime of openly appropriating property, the fine is from five million to one hundred million Dong. This can be considered as a fine for those who commit the crime of openly appropriating property. Therefore, if the Court applies a fine as an additional penalty for those who commit the crime of openly appropriating property, the fine cannot be over one hundred million VND. However, if the offender has many mitigating circumstances as prescribed in Clause 1, Article 46 of the Penal Code, the fine can be less than five million VND, but not less than one million VND because according to Clause 3, Article 30 of the Penal Code, the fine cannot be less than one million VND.

2.2. DISTINGUISHING BETWEEN THE CRIME OF OPEN APPROPRIATION OF PROPERTY FROM SOME CRIMES ACCORDING TO THE PROVISIONS OF THE 1999 CRIMINAL CODE

2.2.1. Distinguishing between the crime of open appropriation of property and the crime of robbery

asset

The crime of robbery is regulated in Article 136 of the Penal Code, which is

The act of quickly snatching another person's property in public and then trying to escape  25, p. 148  . The act of appropriation in the crime of snatching property has two signs to distinguish it from the acts of appropriation in other crimes: the signs of publicness and speed. The offender knows that his act of appropriation is public in nature and has absolutely no intention of concealing it.

a) Similarities

- Regarding the composition of the crime: Both crimes have a material composition, meaning that the crime is only completed when the offender takes the property. If the act of robbery or open appropriation of property has been committed but the property has not been taken, the crime is not completed (incomplete crime).

- Regarding criminal acts: Both of these crimes are committed by the offender in the form of public appropriation of property - public, blatant, the offender has no intention of concealing his criminal acts from the property owner (owner or person responsible for the property).

- Regarding the object: Both infringe on the object of ownership and both aim to appropriate the property of the property owner. The object that both of these crimes aim at and affect is property to achieve their purpose.

- Subjectively: Both crimes are committed with direct intent; the purpose is to appropriate property through the act; the motive for committing both crimes is not a mandatory factor in determining whether or not they are crimes.

b) Difference

- On the objective side of the crime:

Criminal behavior:

+ In the crime of open appropriation of property, the offender "takes advantage of the property owner's inability to openly appropriate their property" - The crime occurs in a situation where the property owner has no means to prevent it, therefore, the offender does not need to quickly appropriate it and quickly hides.

+ In the crime of robbery, the offender quickly (immediately) approaches and quickly appropriates the property in a public manner. The offender often creates surprise for the property owner, hoping that the property owner will not have time to react, prevent the appropriation of the property and therefore, has no intention of using any tricks to deal with the property owner directly. The offender may use threatening words but not to cause real fear but only to distract the property owner, such as pretending to be an economic police officer inspecting the goods and then suddenly snatching the property and running away. In some cases, the offender also commits a minor physical assault on the property owner, but this act is not aimed at and is not capable of losing the resistance of the property owner, for example, hitting the shoulder to make the property owner turn around so that his accomplices can rob the property.

Thus, in terms of the nature of the act, the crime of snatching property is in the method of quickly appropriating property, from approaching the property, to appropriating the property and avoiding the pursuit of the property owner. The quick method is due to taking advantage of the loopholes of the property owner (loopholes that are available or created by the offender). The quick method can take place in different forms depending on the characteristics of the property appropriated, the location, the way of keeping the property and the external circumstances. Normally, the form of quick appropriation can be snatching the property, grabbing the property and quickly escaping. However, escaping

Escape here is not a mandatory sign but only a quick means of evasion by the offender.

Consequences of action:

+ In the crime of robbery, the legislator does not stipulate that the amount of property appropriated is a mandatory sign constituting the crime, but in the crime of open appropriation of property, the amount of property appropriated is a mandatory sign.

- Regarding the time when the property owner knows that the property has been appropriated: In the crime of open appropriation of property, the property owner may not know that the offender has appropriated his property, but in the crime of robbery, before, during or after the loss of property, the victim immediately knows who has appropriated his property.

- Regarding the object of the crime:

+ In the crime of open appropriation of property, the offender violates the direct object, which is the ownership relationship;

+ In the crime of property snatching, the offender violates the direct object which is the ownership relationship and the indirect object which is the personal relationship, but mainly the property relationship. In some cases, the offender of property snatching can have an impact on the body of the property holder, however, this act only creates conditions for the offender to easily appropriate their property, of course, this act of impact cannot be considered an infringement of personal relationships if it is just pushing, kicking, tossing the head... of another person.

From the practice of investigation, prosecution and trial, it is not always clear to distinguish between these two crimes and in reality there is some confusion between the act of openly appropriating property and the act of snatching property. Let us compare through the example:

One afternoon, Nguyen Thi A rode her motorbike to a department store near the highway. Taking advantage of the quiet time, A entered the store pretending to look at the display of clothes for sale hanging in front of the store. Seeing the salesgirl sitting

Comment