Overview of the History of Formation and Development of Vietnamese Criminal Law from the August Revolution in 1945 to the Present on the Crime of Property Theft

1.2. Overview of the history of formation and development of Vietnamese Criminal Law from the August Revolution in 1945 to present on the crime of property theft

1.2.1. The period from the August Revolution in 1945 to before the first codification - the 1985 Penal Code

Since the August Revolution in 1945, the State has issued many legal documents to protect the achievements of the revolution. In particular, legal documents dealing with criminal cases are the most effective tools, especially demonstrating the State's criminal policy towards acts of property infringement. Including documents such as: Decree No. 26/SL dated February 25, 1946 regulating acts of sabotage against public property; Decree No. 47/SL dated October 10, 1946 of President Ho Chi Minh temporarily retaining the laws in the North, Central and South regions until the issuance of unified legal documents nationwide stipulating: " The provisions in the old laws are temporarily retained because this decree can only be implemented when they do not violate the principles of independence of the State of Vietnam and the democratic republic regime ".

On November 9, 1946, the National Assembly of the Democratic Republic of Vietnam passed the first Constitution, in which Article 12 stated: " The right to private property of Vietnamese citizens is guaranteed ". During this period, the State also issued a number of Decrees regulating the crime of property theft, such as Decree No. 12 dated March 12, 1949, which regulates the punishment of acts of theft of military equipment in peacetime and wartime; Decree No. 267 dated June 15, 1958, which punishes plots and acts of sabotage against State, cooperative and people's property, hindering the implementation of the State's planning policies on economic and cultural development. Articles 2 and 3 of Decree 267-SL regulate the crime of theft, but use different terms: "theft of property" and "stealing state secrets".

Article 2. Whoever, for the purpose of destruction, steals , wastes,

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Those who damage, destroy or plunder state, cooperative or people's property will be punished with 5 to 20 years in prison.

Article 3. Anyone who, for the purpose of sabotage, discloses , steals , trades, or spys on State secrets shall be punished by imprisonment from 5 to 20 years.

For assets of special nature, our State also has regulations in separate documents.

Article 1 of Decree No. 12-SL of 1949 stipulates:

In peacetime, the crime of stealing or taking military equipment, uniforms, and supplies, in short, military items, is punished according to the provisions of the common penal code. Article 2 stipulates the punishment of such crimes during wartime, specifically: During wartime, such crimes are punished as follows: - Ordinary theft: from 2 years to 10 years in prison; - If there is aggravating circumstances: can be punished with hard labor or death [47].

After our country basically completed the socialist transformation, the construction of material and technical facilities was the top priority. On December 31, 1959, the National Assembly of the Democratic Republic of Vietnam passed the 1959 Constitution. Article 40 stipulates: “ Public property of the Democratic Republic of Vietnam is sacred and inviolable. Citizens have the obligation to respect and protect public property .”

In addition to the above legal documents, during this period there was also Ordinance No. 149-LCT dated October 21, 1970, which is the Ordinance on Punishment of Crimes against Socialist Property and the Ordinance on Punishment of Crimes against Private Property of Citizens, passed by the Standing Committee of the National Assembly on October 21, 1970. The Ordinance stipulates:

Socialist property includes property owned by the State (ie owned by the entire people), and property owned by individuals.

cooperatives and other legal organizations (collective ownership); citizens' property includes: property created by citizens' labor, legally earned or saved property such as money, vehicles, houses... and other personal belongings [48, p. 24].

Article 6 of the Ordinance on Punishment of Crimes of Infringement on Private Property of Citizens stipulates the crime of theft of private property of citizens as follows:

1. Anyone who steals private property of a citizen shall be sentenced to imprisonment from three months to three years.

2. Crimes fall into the following cases:

a) Professional or dangerous recidivism;

b) Organized;

c) Using cunning tricks;

d) Causing serious consequences to the life of the victim or causing other serious consequences shall be punished by imprisonment from two to ten years.

3. Committing a crime with particularly serious consequences shall be punishable by imprisonment from seven to fifteen years [48, Article 6].

Article 7 of the Ordinance on Punishment of Crimes Against Socialist Property stipulates the crime of theft of socialist property as follows:

1. Anyone who steals socialist property shall be sentenced to imprisonment from six months to five years.

2. Committing a crime in the following cases:

a) Professional or dangerous recidivism;

b) Organized;

c) With brackets;

d) Using cunning and dangerous tricks;

e) Theft of property in large quantities or property of special value;

f) Using stolen property for business, exploitation, speculation, or other crimes shall be punishable by imprisonment from three months to two years.

3. Committing a crime in a case where the amount of property violated is very large or there are many serious circumstances or the consequences are especially serious shall be punished by imprisonment from twelve to twenty years, life imprisonment or the death penalty [48, Article 7].

The contents of the two ordinances have fully and comprehensively demonstrated the criminal policy of our Party and State towards crimes against property in general and property theft in particular. That demonstrates the level of legislative techniques of our State to ensure the legal principle meets the fight against crime prevention and control. The two ordinances have built two complete criminal components of property theft, namely the crime of theft of socialist property and the crime of theft of private property of citizens, have specifically and focused on aggravating circumstances in the law, have penalty frames corresponding to the nature and level of danger of the crime, contributing to the differentiation of criminal responsibility of criminals [1, p. 25].

The parallel issuance of two Ordinances at this time demonstrated the concern of our Party and State not only for state assets and cooperative assets, but also for private assets of citizens, making people increasingly confident in the Democratic Republic government and more confident to actively participate in production and combat.

In addition to the above two ordinances, the Central Party Secretariat issued Directive No. 185 dated December 9, 1970 on strengthening the protection of socialist property to direct the implementation of the contents of the two ordinances in practice.

On March 15, 1976, Decree No. 03 regulating crimes and penalties was passed. Article 4 stipulates: “Committing crimes such as: theft, embezzlement,

Fraud, breach of trust, and robbery shall be punished with imprisonment from 6 months to 7 years. In serious cases, the punishment shall be up to 15 years in prison .

1.2.2. The period from the promulgation of the 1985 Penal Code to before the second codification - the 1999 Penal Code

The above mentioned criminal law documents played a great role for a long time until the 1985 Penal Code was born. The 1985 Penal Code, passed by the 7th National Assembly on June 27, 1985, showed two types of property infringements: acts of infringement of socialist property and acts of infringement of citizens' property, regulated in two different chapters: Crimes of infringement of socialist property and crimes of infringement of citizens' property [1, p. 26].

Article 132 of the 1985 Penal Code stipulates the crime of theft of socialist property as follows:

1. Anyone who steals socialist property shall be subject to reform without detention for up to two years or to imprisonment from six months to five years.

2. Committing a crime in one of the following cases shall be punishable by imprisonment from three to twelve years:

a) Organized or professional;

b) Using cunning and dangerous tricks;

c) Assault to escape;

d) Appropriation of valuable property; e) Dangerous recidivism.

3. Committing a crime in particularly serious cases shall be punishable by imprisonment from ten to twenty years, life imprisonment or death penalty [30, Article 132].

Article 155 of the 1985 Penal Code stipulates the crime of theft of citizens' property as follows:

1. Anyone who steals another person's property shall be punished with reform.

non-custodial reform for up to one year or imprisonment from three months to one year.

2. Committing a crime in one of the following cases shall be punishable by imprisonment from two to ten years:

a) Organized or professional;

b) Using cunning, dangerous tricks or assault to escape;

c) Appropriating property of great value or causing other serious consequences;

d) Dangerous recidivism.

3. Committing a crime in particularly serious cases shall be punishable by imprisonment from seven to twenty years [30, Article 155].

These two crimes have similar legal signs, objectively, subject, subjectively; they only differ in object. Due to the different nature of ownership relations protected by criminal law, due to the different importance of the two types of ownership relations, the crime of property theft is regulated into two specific crimes and in two separate chapters.

The 1985 Penal Code is an important legal basis for handling criminals, but there is still a distinction between the crime of theft of socialist property and the crime of theft of citizens' property. The State's policy of handling those who commit the crime of theft of socialist property is more severe than those who commit the crime of theft of citizens' property. After four amendments and supplements (December 28, 1989, August 12, 1991, December 22, 1992 and May 10, 1997), the 1985 Penal Code is no longer a unified entity that needs a new Penal Code to replace it to suit social conditions. Therefore, the 1999 Penal Code was born to replace the 1985 Penal Code on the basis of inheritance and development to suit the social situation. Based on the policies of our Party and State to build a socialist-oriented market economy to meet the requirements of international economic integration,

The 1999 Penal Code merged two chapters: Crimes against socialist property and Crimes against private property of citizens into one chapter called: Crimes against property. Merging the two chapters is necessary because: First, Article 132 and Article 155 of the 1985 Penal Code are basically the same in terms of legal signs (objective, subject, subjective). Moreover, there are many cases where people who commit the crime of theft of property do not care whose property they steal, they only aim to get the property. Second, in the economy at that time, the State advocated diversifying the economic sector according to different forms of ownership, but all must be equal before the law and equally protected by the State. Therefore, the 1985 Penal Code's provisions in two separate chapters are no longer appropriate. At the same time, practice shows that in a multi-sector economy, forms of ownership are intertwined due to linkages and capital contributions, making it difficult to determine which is socialist property and which is private property of citizens. Third, Article 15 of the 1992 Constitution stipulates: “ The Vietnamese economy is a socialist-oriented market economy with many forms of ownership and many economic sectors; the state economy plays the leading role ”. And Article 179 of the Civil Code stipulates:

On the basis of the regime of ownership by the entire people, collective ownership, and private ownership, the State recognizes and protects forms of ownership including ownership by the entire people, ownership by political organizations, socio-political organizations, collective ownership, private ownership, ownership by social organizations, socio-professional organizations, mixed ownership, and common ownership.

Therefore, when there is an act of infringement of mixed ownership, continuing to use the provisions of the 1985 Penal Code to resolve it will encounter difficulties and obstacles, especially in determining the crime [1, p. 27].

To overcome the above limitations, Article 138 of the 1999 Penal Code stipulates:

1. Anyone who steals another person's property worth from

from five hundred thousand dong to under fifty million dong or under five hundred thousand dong but causing serious consequences or having been administratively sanctioned for the act of appropriation or having been convicted of the crime of appropriation of property, not having had the criminal record expunged but still committing the violation, shall be subject to non-custodial reform for up to three years or imprisonment from six months to three years.

2. Committing a crime in one of the following cases shall be punishable by imprisonment from two to seven years:

a) Organized;

b) Professional in nature;

c) Dangerous recidivism;

d) Using cunning and dangerous tricks; e) Assaulting to escape;

e) Appropriation of property worth from fifty million VND to less than two hundred million VND;

g) Causing serious consequences.

3. Committing a crime in one of the following cases shall be punishable by imprisonment from seven to fifteen years:

a) Appropriation of property worth from two hundred million VND to less than five hundred million VND;

b) Causing very serious consequences.

4. Committing a crime in one of the following cases shall be punishable by imprisonment from twelve to twenty years or life imprisonment:

a) Appropriation of property worth five hundred million VND or more;

b) Causing particularly serious consequences.

5. The offender may also be fined from five million to fifty million VND [31, Article 138].

And Article 138 of the 1999 Penal Code, amended and supplemented in 2009, stipulates:

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