with the crime of fraud and appropriation of property. However, objectively, the act of appropriation is the act of making the property owner completely lose the ability to exercise the right to possess, use, and dispose of his property and creating for the appropriator the ability to possess, use, and dispose of that property. In practice, appropriation is the process of both making the property owner lose the property and creating for the appropriator the property; in legal terms, this process does not make the owner lose his ownership but only makes him lose the ability to actually exercise the specific rights of ownership.
Fraudulent appropriation of property is the act of intentionally and illegally converting property that is owned by another person into one's own property. The basic point to distinguish this crime from other crimes of property infringement with the nature of appropriation of property is stipulated in the Penal Code by the characteristics of the act of appropriation of property, specifically: before committing the act by means of fraud, the offender has the intention of appropriating the property in advance. The property that is the subject of the act of appropriation must be the property that is still in the possession and management of the property owner.
To commit the act of fraud to appropriate property, the offender must have the intention to appropriate the property in advance, then use deceitful tricks to make the property owner trust and hand over the property to the offender to appropriate the property. The deceitful tricks of the offender are the basis for the victim to "voluntarily" hand over the property. Thus, for the crime of fraud to appropriate property, the deceitful tricks appear from the beginning, the offender intentionally provides false information to make others believe it is true in order to appropriate the property (the deceitful tricks appear before the act of appropriation).
From the above cognitive issues, the author defines the crime of fraud to appropriate property as: "The crime of fraud to appropriate property is a socially dangerous act that violates ownership with the nature of appropriation, committed by a person with
Criminal liability is the capacity to intentionally carry out, by fraudulent means, making the owner or manager of the property mistakenly believe, mistaking the fake for real, and handing over the property to them to illegally possess, use, and dispose of that property.
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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 a crime is a social relationship protected by criminal law and violated by a crime. The object of a crime is one of the central issues of criminal law science. The object of a crime is an indispensable part of any crime. Any criminal act violates the general object, also violates one of the certain social relationships protected by criminal law by causing damage or threatening to cause damage to those social relationships. The social relationships protected by criminal law are:
…independence, sovereignty, unity, territorial integrity of the Fatherland, infringement of the political regime, economic regime, culture, national defense, security, social order and safety, rights and legitimate interests of organizations, infringement of life, health, honor, dignity, freedom, property, other rights and legitimate interests of citizens, infringement of other areas of the socialist legal order [29, Article 8].
The crime of property fraud violates property ownership relations. The ownership rights that the crime of property fraud violates include the right to possess, the right to use and the right to dispose of property. The objects of the crime of property fraud are types of property expressed in the form of objects.
substance. According to the provisions of Article 163 of the 2005 Civil Code: "Property includes objects, money, valuable papers and property rights" [28, Article 163] .
The law protects legal ownership, so in principle, property protected by criminal law must be legal property. However, that does not mean that acts of illegal encroachment on other citizens' property are not considered crimes. Fraudulent appropriation of property, even if the property is illegal, is still considered illegal and may constitute the crime of fraud. Criminal law deals with fraudsters to protect ownership rights and to ensure the general safety and order of society.
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 crime. The study of the details of the objective aspect of a crime is therefore of great practical significance.
The objective aspect of the crime of fraud and appropriation of property has the following characteristic signs:
First, behavioral signs
Socially dangerous behavior is the most basic content and is expressed in two forms:
- Action: is the act of a subject doing something prohibited by law;
- Failure to act: is the act of a subject not doing something that the law requires, even though he has the conditions to do so, in order to avoid the risk of causing damage to society.
The socially dangerous behavior in the crime of fraud and property appropriation includes two actual acts: the act of deception and the act of property appropriation.
- Deception is the act of intentionally giving false information in order to make others believe it is true.
Regarding the fraudulent means in the crime of property fraud, there are many different forms of implementation. Researching these forms of implementation is not meaningful in determining the crime of property fraud, but considering the form of implementation is of great value in the work of fighting and preventing this crime.
- Appropriation is the act of intentionally and illegally converting property under the management of the property owner into one's own property.
The acts of deception and the acts of appropriation in the crime of property fraud are closely related. The acts of deception create conditions for the acts of appropriation to be carried out openly and easily.
In the crime of property fraud, the deceitful means of the offender must always come first, then the transfer of property between the victim and the offender takes place. In cases where the deceitful means comes after the offender receives the property, it is not a case of property fraud. In each specific case, the deceitful means formed after the offender receives the property may be an act of concealing a crime or another crime such as the crime of breach of trust to appropriate property. Normally, the act of appropriation occurs immediately after the act of fraud, and there are also cases where there is a certain time gap between the two acts.
Second, the signs of consequences
The consequences of a crime are the damage caused by the criminal act to social relations, which is the object of protection of criminal law.
The damage caused to the object is manifested through the change in the normal state of the components of the social relationship which is the object of the crime.
The crime of property fraud is a crime with a material element, meaning that the crime's composition reflects signs of dangerous consequences for society, but the consequences are not mandatory signs. There are cases where the consequences have not yet occurred and can still constitute the crime of property fraud. The consequences of the crime are reflected in the crime's composition through property damage, specifically the value of the property appropriated. Therefore, determining that property is the subject of the crime of property fraud is a mandatory sign. This is a quantitative sign to determine the basic composition or the composition of the aggravated framework of the crime of property fraud.
In addition to the consequences (value of the property appropriated) as a sign of conviction, in reality, the act of fraud to appropriate property also causes other dangerous consequences (in addition to the main infringement of the direct object), which are property damage, physical damage or other immaterial consequences occurring at different levels, demonstrating the level of danger to society of the act of fraud to appropriate property. These consequences often arise due to the appropriation of property (there is a causal relationship between the appropriation of property and the consequences). Therefore, when determining the consequence as property damage, it must occur in addition to the value of the property appropriated. The immaterial consequences here are expressed as: negative impact on the implementation of the Party and State's policies and guidelines; causing great impact on security, order and social safety.
Third, the causal relationship between the conduct and the consequences of the crime.
Each person is only criminally responsible for dangerous consequences to society when those dangerous consequences are caused by their own objective behavior. The causal relationship between the behavior and the consequences of the crime is expressed as follows:
- The fraudulent act must occur before the act of appropriation of property.
- Fraudulent behavior is the main basis for deciding the criminal's property appropriation.
Because the appropriation of the offender's property can cause other dangerous consequences for society, determining the causal relationship between the act and the above consequences is not only meaningful in terms of conviction but also meaningful in deciding on punishment.
The crime of fraud to appropriate property constitutes a material crime, so the crime is completed when the offender has appropriated the property, that is, when the offender has taken ownership of the appropriated property and the victim has lost the ability to actually own that property.
1.1.2.3. Subjects of the crime of fraud and appropriation of property
“The subject of a crime is a person who has criminal responsibility, has reached the legal age and has committed a specific crime” [8]. Thus, the subject of a crime can only be a specific person, not a legal entity. In some specific cases, the subject of a crime also has other special signs - called a special subject of a crime.
A person with criminal responsibility is a person who, when committing a socially dangerous act, is able to perceive the socially dangerous nature of his or her act and is able to control that act.
Because the subject of the crime of fraud to appropriate property is a common subject, there is no exception for foreigners and stateless persons when committing acts of fraud to appropriate property in the territory of Vietnam. Except for one
number of people enjoying judicial immunity, their criminal liability is resolved through diplomatic channels.
When studying the subject of the crime of fraud and appropriation of property, it is necessary to pay attention to the personal characteristics of the offender such as: occupation, family circumstances, cultural level, economic life, legal awareness, criminal record, etc. This is important for determining the criminal responsibility of the offender as well as measures to combat and prevent the crime of fraud and appropriation of property.
1.1.2.4. Subjective aspect of the crime of fraud and appropriation of property
Crime is a unity of objective and subjective aspects. If the objective aspect is the external manifestation of the crime, the subjective aspect is the internal psychological activity of the criminal.
The subjective aspect of a crime includes: fault, motive, and purpose of committing a crime, in which fault is reflected in all elements of a crime. Fault is an indispensable sign of any element of a crime. Purpose and motive of committing a crime, although also signs of the subjective aspect of a crime, do not always have a decisive meaning in determining the dangerous nature of a crime to society.
The nature and characteristics of the act of fraud to appropriate property in terms of the subjectivity of the crime are expressed by direct intentional fault with the purpose of appropriating property.
* Error signs
"An act that causes damage to society will be considered a fault if that act is the result of the subject's own choice and decision while the subject has sufficient objective and subjective conditions to choose and decide on another course of action in accordance with the demands of society" [27].
Direct intentional fault in the crime of fraud and appropriation of property is expressed as:
- In terms of reason: The offender is clearly aware of the danger to society.
The act that he commits is an infringement of another person's property; clearly aware that the tricks he uses are completely false, in order to make others believe that they are true. The person who commits the crime of fraud to appropriate property before committing the act of fraud has the intention of appropriating another person's property.
- Regarding will: The offender desires the act of deception to result in appropriating another person's property.
* Signs of motive and purpose of crime
Criminal motive is understood as the internal motivation that drives the offender to commit a crime.
Fraudsters can have many different motives when committing crimes: it can be to satisfy their own consumption needs, because of greed... and that is the motive of self-interest.
For the crime of fraud and appropriation of property, signs of criminal motive have no significance in determining the crime, they only have significance in deciding the penalty.
Criminal intent is the result in the subjective consciousness that the criminal sets out to achieve when committing a crime.
The purpose of the person committing the crime of property fraud is to appropriate the property. This purpose always exists before committing the crime. It can be said that the purpose of property appropriation is a mandatory sign of the crime of property fraud. However, the offender may have other purposes along with the purpose of appropriation or accept the purpose of appropriation of another accomplice, then the offender will also be prosecuted for criminal liability for the crime of property fraud.
1.2. DETERMINATION OF THE CRIME OF FRAUDULENT APPROPRIATION OF PROPERTY
1.2.1. Concept of defining the crime of fraud and appropriation of property
Determination of crime is a very important issue in the process of resolving criminal cases, which is a premise for the differentiation of criminal responsibility and individualization.