Distinguishing the Judicial Remedy of "Return of Property, Repair or Compensation for Damages" from a Monetary Penalty

Be correct and respect the law if you do not want to suffer the criminal legal consequences that the offender had to suffer.

Although the measure of "Returning property, repairing or compensating for damages" does not have the same punitive purpose as a penalty, it demonstrates the State's strong condemnation and actively eliminates the conditions for recidivism of the offender, increasing the effectiveness of the penalty. Therefore, the harmonious coordination between penalties and judicial measures in general and the measure of "Returning property, repairing or compensating for damages" in particular has great value and importance in implementing criminal policy and the national fight against crime.

1.2. DISTINGUISHING THE JUDICIAL MEASURE OF "RETURN OF PROPERTY, REPAIR OR COMPENSATION FOR DAMAGES" FROM FINE PENALTIES, CONFISCATION OF PROPERTY PENALTIES AND FROM JUDICIAL MEASURE OF CONFISCATION OF MONEY AND OBJECTS DIRECTLY RELATED TO THE CRIME IN VIETNAMESE CRIMINAL LAW

1.2.1. Distinguishing the judicial measure of "Returning property, repairing or compensating for damages" from a fine

"A fine is understood as one of the State's coercive measures decided by the Court in the verdict against a person convicted of crimes prescribed by criminal law, with the content of depriving them of a certain amount of money and adding it to the State's public treasury" [40, p. 170].

Fines in our country's criminal law have existed for a long time and always occupy an important position in the penal system. Along with expulsion, fines are a type of dual-purpose penalty that is both a main penalty and an additional penalty. The application of fines must satisfy certain conditions and we compare it with the judicial measure "Returning property, repairing or compensating for damages" to see that there are similarities and differences between these two types of criminal measures as follows:

Firstly, they are all criminal coercive measures prescribed by the Penal Code, which only appear when there is a crime committed by a specific individual with criminal responsibility capacity, of criminal responsibility age, and at fault in committing a socially dangerous act prohibited by criminal law.

Second, they are all measures that affect the assets and economy of the subject.

Third, they all result in certain adverse legal consequences for the person to whom they are applied (that is, ownership of property).

Fourth, they are all forms and methods of implementing criminal proceedings, applied by competent prosecution agencies according to a special order and procedure prescribed in the criminal procedure law.

Fifth, according to Vietnamese criminal law, they are all personal in nature and only apply to natural persons who commit crimes.

The difference between a fine and the measure of "Return of property, repair or compensation for damages" can be seen in the following comparison table:

Table 1.1: Comparison of judicial measures "Return of property, repair or compensation for damage" with monetary penalties

Comparison criteria	Measures "Return of property, repair or compensation for damage"	Fine
1	Severity	It is a criminal enforcement measure that is less severe than a fine. The application of this measure will not leave a criminal record for the person being applied.	It is a more severe criminal enforcement measure than the measure of "Returning property, repairing or compensating for damages". The application of a fine will leave a criminal record for the person being applied.
2	How to apply	As a support measure for punishment, it can be applied independently or applied in addition to punishment.	Is a penalty applied independently (when it is the main penalty) or applied alongside another penalty (when it is an additional penalty).
3	Applicable competent authority	More broadly, including the Investigation Agency, the Procuracy and the Court all have the authority to apply depending on the specific stage of the proceedings.	More narrowly, only the Court has jurisdiction to apply it during the trial stage.

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Comparison criteria	Measures "Return of property, repair or compensation for damage"	Fine
4	Applicable objects	More broadly, it is a person who commits a socially dangerous act that is defined by criminal law as a crime or not a crime (due to insufficient elements constituting a crime). In terms of procedural status, the subject of the measure may be a person who is not criminally prosecuted or a person who is criminally prosecuted (defendant, accused) through a decision on handling evidence or a verdict.	More narrowly, it is a person who commits a socially dangerous act defined as a crime by criminal law. In terms of procedural status, the subject of the penalty is only the defendant through the decision in the verdict.
5	Affected objects	Illegal ownership or possession of property by the offender	Property rights of the offender.
6	Scope of application	More broadly, it applies to all less serious, serious, very serious and especially serious crimes that infringe upon property rights, personal freedom, health, life, honor and dignity of people.	More narrowly, only certain types of crimes are subject to fines. Specifically: - As the main penalty: Only applied to less serious crimes that violate economic management order, public order, administrative management order or some other crimes prescribed by the 1999 Penal Code. - As an additional penalty: Only applied to people who commit crimes related to corruption, drugs, or other crimes as prescribed by the 1999 Penal Code.
7	Purpose of application	Apply judicial measures to eliminate criminal conditions and prevent them from committing crimes in the future.	Punishment aims to punish, educate criminals and prevent them from committing new crimes; Punishment aims to educate others to respect the law, fight against and prevent crime.
8	Legal consequences of application	When not accompanied by a penalty for the offender, the person to whom it is imposed is not considered to have a criminal record (for example, when the person is exempted from punishment).	The person subject to the penalty must serve a criminal record.

Source: The author of the thesis synthesized from the 1999 Penal Code, amended and supplemented in 2009 .

1.2.2. Distinguishing the judicial measure of "Returning property, repairing or compensating for damages" from the penalty of confiscation of property

The penalty of property confiscation "is a coercive measure of the State prescribed in the Penal Code declared by the Court in the verdict of conviction against a person convicted of one of the crimes prescribed by the Penal Code, with the content of depriving them of part or all of their property and confiscating it to the State treasury" [40, p. 191].

As with fines, the "Return of property, repair or compensation for damage" measure and the confiscation of property penalty have the following similar characteristics:

Second, they are all measures that affect the assets and economy of the subject.

Third, they all result in certain adverse legal consequences for the person subject to them (that is, the termination of ownership rights to the offender's property).

Fourth, they are all forms and methods of implementing criminal proceedings, applied by competent prosecution agencies according to a special order and procedure prescribed in criminal procedure law.

Fifth, according to Vietnamese criminal law, they are all personal in nature and only apply to natural persons who commit crimes.

Sixth, the assets that the criminal must "pay" or "confiscate" are all assets that the criminal has obtained through violating the law.

The difference between the penalty of confiscation of property and the measure of "Return of property, repair or compensation for damages" can be seen through the following comparison table:

Table 1.2: Comparison of the judicial measure "Return of property, repair or compensation for damage" with the penalty of confiscation of property

Comparison criteria	Measures "Return of property, repair or compensation for damage"	Penalty of confiscation of property
1	Severity	It is a criminal enforcement measure that is less severe than the penalty of confiscation of property. The application of this measure will not leave a criminal record for the person subject to it.	It is a more severe criminal enforcement measure than the measure of "Returning property, repairing or compensating for damages". The application of this penalty will leave a criminal record for the person subject to it.
2	How to apply	As a support measure for punishment, it can be applied independently or applied in addition to punishment.	Is an additional penalty applied in addition to other penalties.
3	Applicable competent authority	More broadly, including the Investigation Agency, the Procuracy and the Court all have the authority to apply depending on the specific stage of the proceedings.	More narrowly, only the Court has jurisdiction to apply it during the trial stage.
4	Applicable objects	Wider. A person who commits a socially dangerous act that is defined by criminal law as a crime or not a crime (due to insufficient elements constituting a crime). In terms of procedural status, the subject of the measure may be a person who is not criminally prosecuted or a person who is criminally prosecuted (defendant, accused) through a decision on handling evidence or a verdict.	Narrower. is a person who commits a socially dangerous act defined by criminal law as a crime. In terms of procedural status, the subject of the penalty is only the defendant through the decision in the judgment.
5	Affected objects	Illegal ownership or possession of property by a criminal.	Property rights of the offender.
6	Scope of application	More broadly, it applies to all less serious, serious, very serious and especially serious crimes that infringe upon property rights, personal freedom, health, life, honor and dignity of people.	More narrowly, only certain types of crimes are subject to the penalty of property confiscation. Specifically: It is only applied to people convicted of serious, very serious or especially serious crimes in cases where the Penal Code provides (For example, the crime of embezzlement of property, Article 278, the crime of bribery, Article 279 of the 1999 Penal Code).

Comparison criteria	Measures "Return of property, repair or compensation for damage"	Penalty of confiscation of property
7	Limits of the measure	There is no limit on the amount of compensation or the scope of repair of damaged property, but the amount of compensation for damage or forced repair of property to the owner or legal manager of the property is based on the actual damage (except in cases where the parties reach an agreement).	There is a limit to the amount of property confiscated: In the case of total confiscation, the convicted person and his family will still have living conditions.
8	Purpose of application	Apply judicial measures to eliminate criminal conditions and prevent them from committing crimes in the future.	Punishment aims to punish, educate criminals and prevent them from committing new crimes; Punishment aims to educate others to respect the law, fight against and prevent crime.
9	Legal consequences of application	When not accompanied by a penalty for the offender, the person to whom it is imposed is not considered to have a criminal record (for example, when the person is exempted from punishment).	The person subject to the penalty must serve a criminal record.

Source: The author of the thesis synthesized from the 1999 Penal Code, amended and supplemented in 2009 .

1.2.3. Distinguishing the judicial measure "Returning property, repairing or compensating for damages" from the judicial measure "Confiscation of objects and money directly related to the crime"

The measure of "Confiscation of objects and money directly related to crimes" is stipulated in Article 41 of the 1999 Penal Code as follows:

1. Confiscation and confiscation into the State budget shall be applied to:

a) Tools and means used to commit crimes;

b) Objects or money obtained from committing crimes or from buying, selling, or exchanging such things;

c) Items that are prohibited from circulation by the State.

2. Objects and money illegally appropriated or used by criminals shall not be confiscated but returned to the owner or legal manager.

3. Objects and money belonging to another person, if this person is at fault in allowing the offender to use them to commit a crime, may be confiscated and turned over to the State budget [27].

We can understand these two measures as two opposite sequences in the process of resolving a criminal case: for a specific criminal case, if the measure "Confiscation of objects and money directly related to the crime" aims to recover evidence, the measure "Returning property, repairing or compensating for damages" aims to handle recovered evidence. Therefore, these two measures are closely related to each other in the process of handling evidence in a criminal case.

The similarity between the penalty of confiscation of property and the measure of "Return of property, repair or compensation for damage" can be seen through the following points:

Firstly, they are all judicial measures prescribed in the 1999 Penal Code. Therefore, they all have the common characteristics of judicial measures as presented above.

Second, they are all measures that affect the property and economic rights of the offender.

Third, their application helps the prosecution agency resolve the issue of handling evidence, handling related assets and resolving civil issues in criminal cases.

The difference between the measure of confiscation of objects and money directly related to the crime and the measure of "Returning property, repairing or compensating for damages" can be seen through the following comparison table:

Table 1.3: Comparison of judicial measures "Return of property, repair or compensation"

"damage" with measures to confiscate objects and money directly related to the crime

Comparison criteria	Measures "Return of property, repair or compensation for damage"	Measure of "Confiscation of objects and money directly related to crimes"
1	Object of impact	It is the property of the victim, the legal manager and in case of compensation for damages, it can be the property of the offender. When talking about "property", this is a broader concept than "things, money" (in addition to things, money, there are also personal rights attached to property such as intellectual property rights, copyrights, etc.)	Just the thing, the money can belong to the victim, the legal manager (for example: the confiscated object is the property obtained from a crime...), it can also belong to the criminal (for example: money obtained from gambling by gambling participants...), it can belong to another person who is at fault in allowing the criminal to use it for the crime (for example: A lends B a car while knowing that B does not have a driver's license, leading to B causing a traffic accident...) and it can be objects that the State prohibits from circulation (for example: firecrackers, drugs...).
2	Nature	Is a measure that regulates the method of handling evidence in criminal cases: If a criminal case involves property, the handling method is: first is to "return" it to the owner or legal manager, if the property is damaged and can be repaired, then "repair" and "return", if the property is damaged to the point that it cannot be repaired, then "compensation for damages" must be made. In addition, the responsibility to compensate for damages also arises in cases where crimes harm the life, health, honor, and dignity of people.	As a measure to recover and handle evidence in criminal cases: Article 42 stipulates the method of handling property (including: returning, repairing or compensating for damages), Article 41 stipulates in which cases "it is not confiscated but returned to the owner", and in which cases it is confiscated and transferred to the State budget.
3	Beneficiary	The victim, the legal administrator of the property.	The victim, the legal manager of the property and the State.
4	Scope of application	Narrower scope of application: - Only applies to criminals in particular. - Only applies to certain types of crimes specified in separate sections of the 1999 Penal Code.	Wider scope of application: - Applicable to all participants in the proceedings when there is a legal basis as prescribed by criminal law. - Applicable to all types of crimes specified in the separate section of the 1999 Penal Code.

Source: The author of the thesis synthesized from the 1999 Penal Code, amended and supplemented in 2009 .

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