achieved certain positive results. According to statistics of the Ho Chi Minh City People's Procuracy, in the past 5 years, the total number of cases of the crime of abuse of trust to appropriate property discovered and handled accounted for a very high proportion, the progress of investigation, prosecution, and trial was guaranteed and the crime was resolved completely and thoroughly.
During the period from 2012 to 2016, the two-level prosecution agencies of Ho Chi Minh City completed the investigation and proposed to prosecute 628 cases/701 defendants; prosecuted 609 cases/677 defendants and tried 595 cases/660 defendants for the crime of abuse of trust to appropriate property. Through research and survey of 100 cases of abuse of trust to appropriate property tried by the two-level Court of Ho Chi Minh City in the past 5 years (including 50 cases with appeals and protests that were tried at the appeal court), the author found that, during the prosecution and trial process, the majority of cases of abuse of trust to appropriate property were correctly charged by the City's prosecution agencies. In 50 cases with appeals and protests that were examined, there were 05 cases (10%) in which the appellate court amended the first instance judgment but did not amend the crime but amended the penalty from imprisonment to suspended imprisonment. This is the result of accurately identifying the signs of the crime of abuse of trust to appropriate property, especially correctly identifying the time when the subject had the intention to appropriate property. However, there are still a number of cases that had to be suspended or temporarily suspended during the investigation phase and 01 case where the People's Procuracy prosecuted but the Court declared that the defendant was not guilty, 01 case where the People's Procuracy prosecuted for this crime but the Court declared another crime.
2.1.2.2. Limitations and difficulties in determining crimes based on basic elements
From the practice of determining the crime of abuse of trust to appropriate property in Ho Chi Minh City in recent years, it can be seen that the process of solving this type of crime has revealed many difficulties and problems. Specifically as follows:
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First : Difficulty in determining the time when the intention to appropriate property appears as a basis for handling the crime of fraud to appropriate property (Article 139) or the crime of abuse of trust to appropriate property (Article 140)
As analyzed in Chapter 1, part 1.3.3 on the distinction between the crime of fraud to appropriate property and the crime of abuse of trust to appropriate property, for the crime of fraud to appropriate property, the intention to appropriate property appears before the offender receives the property from the owner of the property by fraudulent means. If the intention to appropriate appears after the owner transfers the property to the offender, it does not constitute the crime of fraud because this act is not the result of performing fraudulent means, that is, it does not satisfy the method of appropriation by using fraudulent means as prescribed by law, but depending on each case, it may constitute the crime of abuse of trust to appropriate property or other corresponding crimes. However, proving whether the offender's intention to appropriate the property appeared before or after the transfer of the property is an extremely difficult problem because in reality, it is mainly possible to rely on the offender's testimony, most of whom often do not admit that they had the intention to appropriate the property from the beginning (before the property was transferred).
The crime of fraud to appropriate property and the crime of abuse of trust to appropriate property are two independent crimes, but objectively they have similar signs such as: the offender has the "deceitful" method and the victim's "voluntary handover of property" behavior, so in practice, there is often confusion between these two crimes. In the crime of fraud to appropriate property, the deceitful method must occur before the act of appropriation of property in terms of time, the deception is the premise, the condition for the appropriation of property. However, in the crime of abuse to appropriate property, the offender obtains property through fair and legal contracts, which can be civil or economic contracts according to the provisions of civil law. Before receiving the property, the offender has no intention of appropriating the property, the intention of appropriating the property only appears after the time this person receives the property. However, in practice, there are also cases where criminals abuse trust to appropriate property before receiving the property. They may also commit fraudulent acts, but not with the purpose of appropriating the property but only for the purpose of signing a loan contract. For example, the case of Vu Dinh H. occurred in 2012.
In this case, H used his position as Director of P Construction and Investment Trading Joint Stock Company (headquartered in District 5, Ho Chi Minh City) to negotiate and sign a contract with Mr. Pham Hong S, Director of LS Production and Trading Company (headquartered in BT District, Ho Chi Minh City) that H would, on behalf of Mr. S, complete legal procedures for the City People's Committee to allow LS Production and Trading Company to survey and establish a project to build a headquarters and office in Ward B, BT District, Ho Chi Minh City. After Mr. S gave him the amount of VND 1.8 billion, H had the intention to appropriate the above amount without fulfilling the agreements as committed to Mr. S, and then fled. Based on the details and evidence collected, the People's Court of Ho Chi Minh City sentenced H to 9 years in prison for the crime of abuse of trust to appropriate property. However, in this case, from a personal perspective, the author believes that there is almost no exact basis to determine whether H's intention to appropriate property appeared before or after receiving Mr. S's property and that the prosecution of criminal liability for the crime of abuse of trust to appropriate property as declared in the verdict is only one of the solutions to apply the circumstances in a direction favorable to the accused according to the provisions of the Criminal Procedure Law.
In addition, in cases where the person committing the fraud does not admit to having the purpose of appropriating property, there are often different opinions in determining the purpose of appropriation, leading to different views in concluding guilt or innocence; fraud or abuse. A common problem today is that there is no unified perception in the case of: A loan contract (without collateral) for business investment, bank debt repayment, medical treatment... but in reality it is used for other purposes such as paying debts to others; lending at higher interest rates, personal expenses... when the due date comes or there is a request to repay the debt, not returning the borrowed money is considered a fraudulent act or not, there are many different views. Proving the subject's intention to appropriate property is also difficult, because the subject's subjective intention is declared by themselves, but in reality, only when that person
Only by declaring and admitting can one be identified. Therefore, for cunning subjects with a lot of experience in dealing with people, proving is not easy.
In addition, in practice, there are cases where, after receiving the money, the borrower has fabricated the fact that it was appropriated by someone else (stolen, robbed) or that it was appropriated by someone else to delay the deadline for performing the obligation to repay the money. From there, different opinions arise in the handling process.
Some opinions say that the act of falsifying that someone else has appropriated or misappropriated money or property is a fraudulent act (fraud); and the indefinite delay in performing the obligation to pay clearly shows the purpose of appropriation, so there is sufficient basis to charge with the crime of abuse of trust to appropriate property.
Another opinion is that the falsification of the appropriation or misappropriation of money or property by another person is a fraudulent act, but only to create a reason to delay payment. The delay in repayment, even without a deadline, is essentially an unpaid debt, not misappropriation. Conviction will lead to the criminalization of civil relations.
Second: Identify signs of absconding to appropriate property
This is one of the relatively difficult issues to prove in the process of resolving cases of abuse of trust and appropriation of property because when discussing this concept from a theoretical perspective, there are still many different understandings. Accordingly, absconding can be understood as the subject being absent from the family or locality where he/she usually resides; absent from the work unit (if any), but the family, locality, or unit does not know where he/she is; or the subject is not completely absent from the family, locality where he/she usually resides or the work unit, but intentionally avoids and does not contact the property owner, then it is also determined as a case of absconding. However, there are also opinions that, according to the provisions of the Law on Residence, citizens have the obligation to declare temporary residence but do not have the obligation to declare temporary absence. Therefore, their absence from the locality or work unit is their right, not absconding (because the Law does not stipulate). Therefore, based on the different understandings as above, it is very difficult for the prosecuting agencies to determine whether the offender intends to flee.
or not to serve as a basis for criminal prosecution against them. In addition, how to prove that the offender fled for the purpose of appropriating property also becomes a challenge for the prosecution agencies in the process of resolving this type of case because there are cases where it is determined that the offender fled, but after being summoned, or even when there is a decision to prosecute, they claim that they fled the locality to avoid creditors, fear of being asked to pay, and have their debt seized, and had no intention of appropriating the property they had borrowed or borrowed before.
Thus, in order to have sufficient grounds to prosecute the offender in this case, it is necessary to determine the two elements of " escaping " and " having the purpose of appropriating property ". If the subject flees for other purposes such as to avoid the threat of creditors, to go to another place to do business to get money to pay off debts or to extend the debt repayment period, then in these cases, even if there are signs of absconding, but not proving the element of appropriating property, there is not enough basis to convict.
Third: Identify signs of using assets for illegal purposes leading to the inability to return the assets.
Basically, using property for illegal purposes can be understood as using other people's property for purposes prohibited by criminal law such as gambling, bribery, drug trafficking, trading in prohibited goods, lending at high interest rates, etc. This viewpoint is being applied by the prosecution agencies of Ho Chi Minh City in the process of fighting against crimes of abusing trust to appropriate property. However, in the practical activities of resolving this type of case, there are still problems and inadequacies, such as the subject claiming to have used the borrowed money to gamble and lost it all, but the prosecution agency cannot collect evidence to prove whether the gambling actually happened or not? Where and when did it happen, with whom... so it cannot be concluded that the use of borrowed property by the criminal was used for illegal purposes, so it is very difficult to resolve. For this case, there are 2 different viewpoints. The first view holds that, in addition to the subject's confession, there must be direct evidence to determine that the subject participated in gambling in order to have sufficient basis for a conclusion. The second view holds that, in addition to
The subject's confession, only need indirect evidence to determine that the subject gambled (heard from the subject or someone else) to have a basis for conclusion because according to the law, the issue that needs to be proven is the illegal use of assets, not proving the act of illegal use of assets.
In Ho Chi Minh City, the most notable situation is that people lend money at interest, borrow at a low interest rate and lend it to another place at a higher interest rate to enjoy the difference, but when a link is broken, tens of billions of dong of previous creditors will also break down, but they do not run away, so it is very difficult to handle. There are cases through economic contracts, buying goods and paying later by the form of delayed payment, paying for the previous batch of goods and accepting debt for the next batch of goods, paying in small amounts, appropriating money for loans with high interest rates or purchasing assets, real estate, cars... but when the payment deadline comes, they say that the business is losing money, there is no possibility of recovering capital and the use of that property for lending or shopping cannot be considered "illegal" and the reason for not paying the debt is that the subject says that he has not paid it yet, not that he has not paid it. This is one of the main reasons for the omission of this crime in practice.
On the other hand, in the economic activities of private enterprises in the City, the opening of books to track economic transactions is very limited. These units almost do not keep records or keep very sketchy records. Therefore, when borrowing, lending, doing business at a loss, or losing the ability to pay, proving when the enterprise loses the ability to pay to prove fraudulent behavior, what the loan is used for, whether it is illegal or not is not simple and of course, if it cannot be proven, it cannot be criminally prosecuted.
Fourth: Same type of behavior but handled for two different crimes
The practice of handling cases of abuse of trust and appropriation of assets occurring in the operations of enterprises in recent times has had some inconsistencies, although they are similar in nature. If the act of appropriation of assets is carried out within the scope of a joint stock company, which is an enterprise without State capital, when this person is performing assigned tasks such as transporting
transporting goods, escorting, protecting, keeping warehouses, cashiers... will be prosecuted for the crime of "Abuse of trust to appropriate property". In a similar case, this person appropriates property but it belongs to a joint stock company which is an enterprise with State capital while they are performing assigned tasks, there are cases where the case is prosecuted for the crime of "Abuse of trust to appropriate property" with the framing circumstance at Point b, Clause 2, Article 140 of the Penal Code being "Taking advantage of position, power or taking advantage of the name of an agency or organization", there are also cases where the case is prosecuted for the crime of " Embezzlement of property ". Thus, the application of legal provisions to handle employees of joint stock companies who appropriate property of that company while performing assigned tasks is currently not consistent between the prosecution agencies at the same level, between prosecution agencies at different levels; the application of the law to handle each specific case is also different. The reason is that there is no specific and unified guidance from the Central Judicial Agencies on this issue. In the author's opinion, the handling of criminals in this case should be unified in the direction of handling the crime of embezzlement of property, which will be more reasonable and accurate because these subjects themselves, whether outside or inside the system of enterprises with State capital, are still identified as subjects with positions and powers, assigned to manage assets and have taken advantage of it to appropriate the assigned assets. Handling criminals for the act of embezzlement of property is both true to the nature of the act and creates a unified awareness in the process of handling crimes in practice.
Fifth: It is difficult to determine whether the committed act is a crime or simply a civil or economic violation.
The crime of abusing trust to appropriate property is one of the crimes that is difficult to prove. It is not only difficult to determine what crime has been committed, but also difficult to conclude whether or not a crime has occurred, whether it is a crime of abusing trust to appropriate property or simply a civil or economic violation because the boundary between civil and economic relations and this criminal act is very fragile and difficult to distinguish. Some cases have a large amount of work.
Large and complicated appraisals and valuations must be carried out, so the appraisal time must be extended; many cases must be supplemented and re-appraised, affecting the progress of the investigation.
For example: During the period from August 2014 to December 2014, Mr. Le Duy N (owner of DN wine production facility) borrowed a total of 375 million VND from Ms. S many times. According to the agreement, the interest rate was 6%/month and by the beginning of 2015, Mr. N had to pay both principal and interest. After that, Mr. N used someone else's land papers as collateral for Ms. S, and at the same time made a contract to transfer 1,400m2 of land that Mr. N had mortgaged to the bank to offset the debt. Discovering the fraud, Ms. S reported him to the authorities. After conducting an investigation, the Investigation Police Department prosecuted and temporarily detained Mr. N for the crime of abuse of trust to appropriate property.
Based on the prosecution decision of the People's Procuracy, the People's Court of Ho Chi Minh City decided to bring the case to trial. At the first instance trial, the representative of the People's Procuracy proposed to sentence Mr. N to 7-8 years in prison. However, the Court of First Instance held that Mr. N's actions did not constitute a crime, so he was declared not guilty. Afterwards, the People's Procuracy of Ho Chi Minh City decided to appeal the above first instance judgment, but the Court of Appeal found that the first instance judgment did not violate the law, so it rejected the appeal and upheld the first instance judgment.
In this case, the most important issue is to prove whether Mr. N intended to appropriate the property and whether he actually appropriated Ms. S's property or not? Mr. N did not fulfill his commitment to pay the debt on time, and committed certain fraudulent acts in offsetting the debt by using the property that he had mortgaged to the bank to trade in order to avoid the obligation to pay the debt, but this transaction was to offset the obligation and not from here, the offender received the property and then appropriated the property. The above content shows that the actual behavior is not consistent with the objective behavior stated in the crime, so the Investigation Police and the Procuracy have wrongly prosecuted an innocent person, this situation is called criminalization of civil relations.
In addition, in practice, in resolving cases of abuse of trust and appropriation of property, there are still many mistaken arguments and judgments between the acts.