Comment: The 1999 Penal Code has made progressive adjustments to ensure its conformity with the reality of crimes, overcoming the limitations of the 1985 Penal Code in defining the crime of resisting a person on official duty. However, the 1999 Penal Code still stipulates the qualitative circumstance of “causing serious consequences”, which makes it difficult to apply in practice and many provisions in the 1999 Penal Code have not been specifically guided.
1.4.4. New points of the crime of resisting a person on official duty in the 2015 Penal Code
Responding to the requirements of the new situation, the 2015 Penal Code (amended and supplemented in 2017) was born, demonstrating the progress in the content and legislative techniques of our country. In this Penal Code, the crime of resisting a person on official duty is stipulated in Article 330, which has not changed much compared to the 1999 Penal Code. Article 330 of the 2015 Penal Code has specified the aggravating circumstance of "causing serious consequences" to "Causing property damage of VND 50,000,000 or more".
Chapter 1 Conclusion
Through chapter 1 of the thesis, the author has analyzed the concept and legal signs of the crime of resisting a person on official duty, distinguishing the crime of resisting a person on official duty from a number of other crimes with the aggravating circumstance of "resisting a person on official duty". In addition, the author has also outlined the legislative history of this crime from 1945 to when the 2015 Penal Code came into legal effect. This is the basis for the author to analyze the provisions of the 2015 Penal Code on the crime of "resisting a person on official duty" and the practical application in Dong Nai province.
Chapter 2
PRACTICAL APPLICATION OF CRIMINAL LAW ON CRIMES OF RESISTING PUBLIC OFFICIALS IN DONG NAI PROVINCE
2.1. Overview of the situation of trial of crimes against law enforcement officers in Dong Nai province
2.1.1. Overview of Dong Nai province
Dong Nai is a province in the Southeast region of the Socialist Republic of Vietnam, with an area of 5,903,940 km², accounting for 1.76% of the country's natural area and 25.5% of the Southeast region's natural area. The province has 11 administrative units, including: Bien Hoa City - the political, economic and cultural center of the province; Long Khanh City and 9 districts: Long Thanh; Nhon Trach; Trang Bom; Thong Nhat; Cam My; Vinh Cuu; Xuan Loc; Dinh Quan; Tan Phu. As a province located in the key economic development region of the South, Dong Nai borders the following regions: Binh Thuan province to the East, Lam Dong province to the Northeast, Ho Chi Minh City to the West, Binh Duong and Binh Phuoc provinces to the Northwest, Ba Ria - Vung Tau province to the South. Dong Nai is a province with a convenient transportation system with many key traffic routes running through it such as: National Highway 1A, National Highway 20, National Highway 51; North-South railway; near Saigon port, Tan Son Nhat international airport has created favorable conditions for economic activities in the region as well as trade with the whole country and at the same time has a role in connecting the Southeast region with the Central Highlands [52].
It can be said that with its geographical location and favorable traffic conditions, the crime situation against law enforcement officers in Dong Nai province is very complicated. In 2020, there were 13 cases of resisting law enforcement officers in the province, injuring 6 police officers and soldiers. The cases of resisting law enforcement officers mainly occurred in the field of security and order.
and traffic safety. This behavior often occurs when the subjects have committed previous administrative violations.
2.1.2. Situation of trial of crime of resisting public officials in Dong Nai province
According to statistics from the People's Court of Dong Nai province, from 2016 to 2020, the People's Court at two levels of Dong Nai province brought 11,754 cases to trial, against 20,661 defendants; of which, the crime of resisting people on official duty was 61 cases against 104 defendants. Specifically:
Table 2.1. Crime situation and crime situation against law enforcement officers brought to trial in Dong Nai province in the period 2016 - 2020
Year
Crime situation | Crime of resisting public officials | Percentage | ||||
Number of cases | Number of defendants | Number of cases | Number of defendants | Number of cases | Number of defendants | |
2016 | 2,234 | 3,851 | 11 | 14 | 0.49 | 0.36 |
2017 | 2,475 | 4.171 | 12 | 15 | 0.48 | 0.35 |
2018 | 2,276 | 4,072 | 11 | 19 | 0.48 | 0.39 |
2019 | 2,427 | 4,329 | 13 | 27 | 0.53 | 0.63 |
2020 | 2,342 | 4,238 | 14 | 29 | 0.59 | 0.68 |
Total | 11754 | 20661 | 61 | 104 | 0.51 | 0.41 |
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(Source: Dong Nai Provincial People's Court)
The above statistics show that the crime of resisting law enforcement officers accounts for a low percentage of the total number of crimes, with 0.51% of the number of cases and 0.48% of the number of defendants, but is showing an increasing trend in the number of cases and the number of defendants in 2019 and 2020.
Table 2.2. Situation of crimes against people performing official duties and crimes under Chapter XXII (crimes against administrative management order) tried at first instance in Dong Nai province in the period 2016 - 2020
Year
Crime belongs to Chapter XXII | Crime against the candidate official duty | Percentage | ||||
Number of cases | Number of defendants | Number of cases | Number of defendants | Number of cases | Number of defendants | |
2016 | 94 | 112 | 11 | 14 | 11.7 | 12.5 |
2017 | 97 | 117 | 12 | 15 | 12.3 | 12.8 |
2018 | 102 | 121 | 11 | 19 | 10.7 | 13.2 |
2019 | 112 | 129 | 13 | 27 | 11.6 | 20.9 |
2020 | 117 | 132 | 14 | 29 | 11.9 | 21.9 |
Total | 522 | 611 | 61 | 104 | 11.6 | 17.0 |
(Source: Dong Nai Provincial People's Court)
Through the above table, it can be seen that the first-instance trial of the crime of resisting a person on official duty in Dong Nai province accounts for a high proportion compared to the group of crimes in Chapter XXII with 22 crimes, accounting for 11.6% of the number of cases and 17.0% of the number of defendants. This crime has fluctuated over the years, the development of this crime tends to increase in the years from 2019 to 2020. If in 2016 there were a total of 11 cases and 14 defendants brought to trial, in 2017 this number increased to 12 cases with 15 defendants. By 2018, the number of cases was 11 cases and 19 defendants, by 2019, the number of cases and defendants increased sharply with 13 cases and 27 defendants, increasing to 14 cases with 29 defendants in 2020. This number shows the rapid increase and unpredictable complexity of this type of crime in Dong Nai province in the coming time.
In addition, according to statistics from Dong Nai Provincial People's Court in the 5-year period from 2016 to 2020, Dong Nai Provincial People's Court has considered
158 appeal cases were tried, with 196 defendants in Chapter XXII (crimes against administrative management order); of which, 33 cases of resisting people on official duty were tried with 40 defendants, mainly defendants appealing for a reduced sentence.
Table 2.3. Situation of crimes against people performing official duties and crimes under Chapter XXII (crimes against administrative management order) tried at appeal in Dong Nai province in the period 2016 - 2020
Year
Criminal offense under Chapter XXII | Crime against the candidate official duty | Percentage | ||||
Number of cases | Number of defendants | Number of cases | Number of defendants | Number of cases | Number of defendants | |
2016 | 24 | 32 | 6 | 8 | 25 | 25 |
2017 | 31 | 37 | 7 | 8 | 22.5 | 21.6 |
2018 | 27 | 34 | 5 | 7 | 18.5 | 20.5 |
2019 | 35 | 41 | 7 | 9 | 20 | 21.9 |
2020 | 41 | 52 | 8 | 8 | 19.5 | 15.3 |
Total | 158 | 196 | 33 | 40 | 20.8 | 20.4 |
(Source: Dong Nai Provincial People's Court)
Through the above statistics, it can be seen that the situation of crimes against law enforcement officers brought to appeal accounts for a high proportion of the cases brought to trial. The situation of appeal trials in 2016 was 06 cases/08 defendants, accounting for 25% of the number of cases and the number of defendants. By 2017, it was 07 cases/08 defendants, a decrease compared to 2016, accounting for 22.5% of the number of cases and 21.3% of the number of defendants. The number decreased in 2018 with 05 cases/07 defendants, accounting for 18.5% of the number of cases and 20.5% of the number of defendants; however, by 2019, it increased to 07 cases/09 defendants, accounting for 20% of the number of cases and 21.9% of the number of defendants; In 2020, there were 08 cases/08 defendants, accounting for 19.5% of the number of cases and 15.3% of the number of defendants.
defendant. This shows that the situation of crimes against public officials brought to appeal is increasing and becoming more complicated. In cases of resisting public officials, defendants tend to appeal. Through a survey of the verdicts, defendants mainly appeal to request a reduction in their sentences.
In addition, according to statistics from the People's Court of Dong Nai province in the 5-year period from 2016 to 2020. The People's Court of Dong Nai province has brought 33 appeal cases to trial, with 40 defendants for resisting people on official duty with the following specific rates of overturned and revised sentences:
Table 2.4. Rate of appeal cases with amended or annulled first instance judgments in Dong Nai province in the period 2016 - 2020
Year
Crime against people performing official duties (1) | An was repaired (2) | Sentence overturned (3) | Percentage | ||
Number of cases | Number of cases | Number of cases | Number of cases (2)/(1) | Number of cases (3)/(1) | |
2016 | 6 | 2 | 0 | 33.3 | 0% |
2017 | 7 | 3 | 0 | 42.8 | 0% |
2018 | 5 | 3 | 0 | 60 | 0% |
2019 | 7 | 4 | 0 | 57.1 | 0% |
2020 | 8 | 4 | 0 | 50 | 0% |
Total | 33 | 15 | 00 | 45.4 | 0% |
(Source: Dong Nai Provincial People's Court)
The above table shows that the number of first-instance cases of resisting law enforcement officers that were annulled by the appellate court is zero. The number of cases that were amended by the appellate court is still high, but mainly amended in the direction of reducing the penalty because at the appellate court, the defendant is entitled to a number of new mitigating circumstances such as compensation, remedy of consequences, family difficulties, etc.
During this period, there was 01 judgment that was annulled by the High People's Court in Ho Chi Minh City, both the first instance and appeal judgments, which were the first instance criminal judgment No. 263/2017/HSST dated July 5, 2017 of the People's Court of Bien Hoa City and the appeal criminal judgment No. 283/2017/HSPT dated October 27, 2017 of the People's Court of Dong Nai Province due to incorrect crime determination.
Table 2.5. Sanctions applied to defendants who committed crimes against law enforcement officers in Dong Nai province during the period 2016 - 2020
Year
Number of defendants tried treat | Renovation no detention | Suspended sentence | Prison under 03 year | Prison 03 year to 07 year | Prison 07 5 to 15 year | Prison from 15 years to 20 year | Prison from 20 year to year close | Death penalty | |
2016 | 14 | 01 | 04 | 08 | 01 | 00 | 00 | 00 | 00 |
2017 | 15 | 02 | 03 | 09 | 01 | 00 | 00 | 00 | 00 |
2018 | 19 | 03 | 06 | 10 | 00 | 00 | 00 | 00 | 00 |
2019 | 27 | 03 | 08 | 14 | 02 | 00 | 00 | 00 | 00 |
2020 | 29 | 01 | 09 | 16 | 03 | 00 | 00 | 00 | 00 |
Total | 104 | 10 | 30 | 57 | 07 | 00 | 00 | 00 | 00 |
(Source: Dong Nai Provincial People's Court) The above statistics show that in the period from 2016 to 2018,
2020, among the defendants tried for the crime of resisting law enforcement officers in Dong Nai province, there were no cases of exemption from criminal liability or punishment. The defendants were mainly sentenced to less than 3 years in prison with 57 defendants/104 defendants, followed by the number of defendants receiving suspended sentences of 30 defendants/104 defendants, followed by the penalty of reform without reduction of detention, the number of defendants applied with a penalty of 3 years to 7 years was 07 defendants.
Table 2.6. Personal information of defendants tried for the crime of resisting law enforcement officers in Dong Nai province in the period 2016 - 2020
Year
Number of defendants tried treat | Public officials position, Party member | Ethnic minorities | Female | From 14 years old under 16 year old | From 16 years old under 18 year old | Age from 18 under 30 year old | Drug addict | Recidivism, dangerous recidivism | |
2016 | 14 | 00 | 02 | 00 | 00 | 00 | 08 | 01 | 01 |
2017 | 15 | 00 | 01 | 01 | 00 | 00 | 06 | 00 | 01 |
2018 | 16 | 00 | 02 | 00 | 00 | 00 | 07 | 00 | 00 |
2019 | 27 | 00 | 05 | 02 | 00 | 00 | 11 | 03 | 01 |
2020 | 29 | 00 | 07 | 02 | 00 | 00 | 13 | 01 | 02 |
Total | 104 | 00 | 17 | 05 | 00 | 00 | 45 | 05 | 05 |
(Source: Dong Nai Provincial People's Court) Through analysis of the above table, it can be seen that in the period from 2016 to 2018,
In 2020, there were 104 cases prosecuted for resisting law enforcement officers, in which the criminals were mainly men; the criminals were mainly people over 30 years old, followed by 45 cases of people from 18 to under 30 years old; drug addicts committed crimes in 05 cases; criminals were recidivists and dangerous recidivists in 05 cases. Notably, there were no cases of criminals being civil servants or Party members.
2.2. Practice of trying crimes against people on official duty in Dong Nai province
2.2.1. Practice of determining the crime and applying punishment for the crime of resisting law enforcement officers in Dong Nai province
Through research on the verdicts of the two-level people's courts of Dong Nai province, it can be seen that most cases were determined and the punishment was decided on the right person, the right crime, and the right law.
The process of resolving cases must comply with legal regulations, ensuring the rights and obligations of participants in the proceedings.