IT crime is a crime with a global trend and nature, so signing the European Convention is inevitable. Starting with 26 members, the European Convention now has 48 members participating, demonstrating the solidarity and cooperation between countries in preventing and combating IT crime worldwide.
In summary, through the study of the provisions on the Crime of using computer networks, telecommunications networks, and electronic means to commit acts of property appropriation in the criminal laws of some countries in the world, it can be seen that the provisions on the Crime of using computer networks, telecommunications networks, and electronic means to commit acts of property appropriation in the 2015 Penal Code have many similarities and differences compared to the Penal Codes of some countries that have been studied. With the similarities and differences of the provisions on the Crime of using computer networks, telecommunications networks, and electronic means to commit acts of property appropriation in the Vietnamese Penal Code compared to the corresponding provisions of the Penal Codes of some countries as analyzed above, this will suggest proposals to improve the provisions on the Crime of using computer networks, telecommunications networks, and electronic means to commit acts of property appropriation in the Vietnamese Penal Code.
Chapter 1 Summary
In Chapter 1 of the thesis, the author has raised the concept of basic legal signs, revealing the criminal composition of the Crime of using computer networks, criminal objects, telecommunications networks, electronic means to commit acts of property appropriation in the following elements: criminal objects, criminal subjects, objective and subjective aspects of the crime. This is the legal basis for the agencies conducting the proceedings to prosecute whether someone has committed the crime of using computer networks, telecommunications networks, electronic means to commit acts of property appropriation or not.
In addition, in Chapter 1, the thesis also mentioned the provisions of the criminal law of Vietnam and some countries in the world regulating the crime of using computer networks, telecommunications networks, and electronic means to commit acts of property appropriation. In particular, the author of the thesis also distinguished between 03 crimes: Crime of using computer networks, telecommunications networks, and electronic means to commit acts of property appropriation (Article 290) with Crime of property theft (Article 173) and Crime of property fraud (Article 174), the 2015 Penal Code based on the following factors: object, subject, subjective aspect, objective aspect of the above 03 crimes as a basis to determine the acts, tricks, and methods of property appropriation.
Thus, the above arguments are the premise for a unified understanding of legal provisions, contributing significantly to the study of practical application of the provisions on the Crime of using computer networks, telecommunications networks, and electronic means to commit acts of property appropriation in Ho Chi Minh City in Chapter 2.
Chapter 2
PRACTICAL APPLICATION OF REGULATIONS ON THE CRIME OF USING COMPUTER NETWORKS, TELECOMMUNICATION NETWORKS, AND ELECTRONIC MEANS TO COMMIT THE ACTS OF PROPERTY APPROPRIATION IN HO CHI MINH CITY
2.1. Overview of the trial of the crime of using computer networks, telecommunications networks, and electronic means to commit acts of property appropriation in Ho Chi Minh City
Ho Chi Minh City is the center of economic and social development of the country, a leading locality in applying achievements of science and technology to state and social management. However, along with the remarkable development and superior features of the 4.0 scientific and technological revolution, the city is currently facing negative aspects of the digital economy such as: criminals using computer networks, telecommunications networks, electronic means to commit acts of fraud and appropriation of property, with many sophisticated and cunning methods and tricks, violating the right to network security, the e-commerce transaction environment, affecting bank credit payments... causing a lot of damage to the business environment and people's property, creating instability for the socio-economy and the legal property rights of organizations and individuals, disturbing order and security in Ho Chi Minh City.
Recently, the situation of high-tech crimes in general, crimes using computer networks, telecommunications networks, electronic means to commit acts of property appropriation in Ho Chi Minh City has become complicated, not only increasing in quantity, types of crimes, criminals but also in nature and methods becoming more and more sophisticated, manifested in many different forms of crime, organized crime, some cases are transnational, using tools, technical means, modern science and technology to commit crimes. The consequences of the crimes are very serious, not only causing property damage but also creating panic among the people, affecting social order and safety, and the development of the city.
In recent years, Ho Chi Minh City Police have discovered and cracked down on hundreds of cases of criminals using high technology to commit crimes. In particular, common crimes are: Fraud in the field of commerce, electronic payment (creating fake websites, Facebook of organizations, businesses to commit fraud; impersonating reputable international payment management organizations (VISA, MASTER) to lure, entice users to top up card codes and then appropriate assets; making fake credit cards to appropriate assets...; Illegal business activities of gold trading floors, FOREX foreign currency; taking advantage of OTT services (Zalo, Viber, Line, Wechat...), social networks (Facebook, Twitter...) to commit fraud in the form of multi-level marketing, trading in counterfeit, smuggled, and prohibited goods; sending fake messages about promotional programs of network operators, increasing many times compared to the value of card top-up... Notably, the criminals are foreigners (mainly citizens of Chinese and Taiwanese nationality) with a tendency to increase significantly. The method of committing crimes is often entering Vietnam through border gates as tourists, Bringing machinery and equipment and then connecting with individuals and organizations in Vietnam that have registered POS payment acceptance machines, then using stolen credit card accounts of foreigners to enter information into blank cards and then through the payment acceptance machine to swipe the card and make fake payments; forging and using fake credit cards, fake bank cards to withdraw money at ATMs or pay for goods and services at payment acceptance locations... or forging credit cards to buy goods from abroad and then transfer them to Vietnam...
Also according to statistics, from 2016 to 2020, the crime of using computer networks, telecommunications networks, and electronic means to commit acts of property appropriation (Article
290) occurred in Ho Chi Minh City, the results went through two levels of handling and resolution, as follows:
Year
Total cases handled (Number of cases/number of defendants) | New KT | Suspended | Suspend | New prosecution | Trial | |
2016 | City : 24 case/22 defendants | 09 cases /05 defendants | 06 cases /00 defendants | 0 cases /0 defendant | 07 cases /10 defendants | 13 cases /24 defendants |
District : 20 cases / 01 defendant | 09 cases /05 defendants | 13 cases /00 defendants | 0 cases /0 defendant | 02 cases /03 defendants | 01 case /01 defendant | |
2017 | City : 39 case /27 defendants | 09 cases /05 defendants | 19 cases /02 defendants | 00 cases /00 defendants | 04 cases /15 defendants | 06 cases /15 defendants |
District : 35 cases / 06 defendants | 09 cases /05 defendants | 19 cases /01 defendant | 00 cases /00 defendants | 03 cases /04 defendants | 02 cases /03 defendants | |
2018 | City : 36 case /19 defendants | 22 cases /09 defendants | 21 cases /00 defendants | 00 cases /00 defendants | 08 cases /13 defendants | 12 cases /23 defendants |
District : 90 cases / 50 defendants | 80 cases /01 defendant | 70 cases /00 defendants | 00 cases /00 defendants | 03 cases /03 defendants | 04 cases /06 defendants | |
2019 | City : 24 case /12 defendants | 19 cases /06 defendants | 06 cases /00 defendants | 01 case /01 defendant | 02 cases /02 defendants | 02 cases /02 defendants |
District: 173 cases / 06 victims can | 155 cases /04 defendants | 129 cases /00 defendants | 00 cases /00 defendants | 04 cases /05 defendants | 04 cases /05 defendants | |
2020 | City : 32 case /21 defendants | 13 cases /09 defendants | 16 cases /01 defendant | 00 cases /00 defendants | 03 cases /09 defendants | 04 cases /04 defendants |
District: 287 cases / 08 victims can | 296 cases /02 defendants | 194 cases /00 defendants | 00 cases /00 defendants | 01 case /01 defendant | 03 cases /03 defendants |
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Thus, it can be seen that the crime situation using computer networks, telecommunications networks, and electronic means to commit property appropriation in Ho Chi Minh City has always tended to increase over the years. This shows that this type of crime will continue to be a potential danger causing social insecurity in the community, not only developing within a district, county, or city, but this type of crime also develops transnationally. It is forecasted that in the coming years, the situation of high-tech crimes in general, crimes using computer networks, telecommunications networks, and electronic means to commit property appropriation in Ho Chi Minh City in particular will continue to develop complicatedly, with a tendency to commit organized, transnational crimes. Criminal organizations continue to operate with diverse covers, more sophisticated and cunning methods of operation and concealment of crimes, making it difficult to detect, investigate, prosecute, and try.
Situation of crimes using computer networks, telecommunications networks, and electronic means to commit acts of property appropriation in Ho Chi Minh City
The above shows that the practical requirement is to continue research to improve the effectiveness of applying the provisions of criminal law on this crime and to fight against it.
2.2. Practice of determining the crime of using computer networks, telecommunications networks, and electronic means to commit acts of property appropriation in Ho Chi Minh City
Determination of crime is the activity of perceiving and applying criminal law, carried out on the basis of fully, accurately and objectively determining the specific circumstances of the crime that has occurred in accordance with the content of criminal law regulations stipulating the corresponding crime composition and determining the conformity between the signs of the crime composition. Determination of crime is very important in exercising the right to prosecute and supervise the initiation, investigation, prosecution and trial of criminal cases. Determination of crime is carried out at all stages of criminal proceedings, from the time of discovering the crime, initiating the case until the final judgment or retrial of the criminal case. The process of determining crime must consider all circumstances related to the elements of the crime in a certain order: from the object, the objective aspect, the subject and finally the subjective aspect of the crime.
“ Determining a crime is the legal determination and recognition of the exact match between the signs of a specific crime that has been committed and the signs constituting a crime prescribed in criminal law”. Article 290 of the 2015 Penal Code stipulates the crime with the name of “Crime of using computer networks, telecommunications networks, and electronic means to commit acts of property appropriation”. Therefore, the determination of the crime of using computer networks, telecommunications networks, and electronic means to commit acts of property appropriation can be understood as follows: Determining the crime of using computer networks, telecommunications networks, and electronic means to commit acts of property appropriation is the legal determination and recognition of the exact match between the signs of a specific crime that has been committed and the signs constituting a crime prescribed in Article 290 of the 2015 Penal Code.
In order to accurately determine the crime, in each stage of the proceedings, the prosecuting agencies must regularly evaluate and weigh the collected evidence against the actual objective behavior and compare it with the
Criminal law provisions aim to ensure that investigation, prosecution and trial are carried out correctly, with the right person and the right crime, to avoid wrongful convictions and missed crimes. Determining the crime is a complicated process following a certain procedure and is carried out throughout the process of resolving criminal cases. Determining the correct crime will eliminate groundless convictions of people whose acts are not dangerous to society, not contrary to criminal law and create a legal premise for deciding fair punishments for criminals.
Thus, determining the crime of using computer networks, telecommunications networks, and electronic means to commit property appropriation is the determination and legal recognition of the exact match between the signs of the specific criminal act that has been committed and the signs of the crime of using computer networks, telecommunications networks, and electronic means to commit property appropriation as prescribed in the Penal Code.
According to the provisions of Article 290 of the 2015 Penal Code, the crime of using computer networks, telecommunications networks, and electronic means to commit acts of property appropriation with objective acts includes many different types as prescribed in 5 points (a, b, c, d, dd) Clause 1 Article 290 of the Penal Code. Therefore, determining the crime for each type of act is a mandatory factor to ensure the correct crime determination.
The practice of applying the law in the trial of criminals under Article 290 in Ho Chi Minh City in recent times shows that the People's Courts of some districts have different understandings in determining the crime of using computer networks, telecommunications networks, and electronic means to commit acts of property appropriation. The author would like to cite the content of some related cases that occurred in the area and analyze the views on determining the crime of the prosecuting agencies and the difficulties and obstacles in the trial practice for this type of crime.
2.2.1. In cases where the offender uses different acts to obtain accounts, bank cards, access codes, and the method of appropriating property is to use computer networks, telecommunications networks, and electronic means.
Typical case: At around 9:00 a.m. on August 23, 2019, Ms. Pham Thi T received a phone call from subscriber number 0811250231 calling Ms. T, claiming to be an officer of the People's Court of Ho Chi Minh City, informing Ms. T that she was involved in a case under investigation and asking Ms. T to cooperate. After that, Ms. T continued to receive a phone call from subscriber number 02430000113, claiming to be an officer of the Criminal Police Department of the Ministry of Public Security, and informing Ms. T that she was involved in a case of illegal drug trafficking, the subject had been arrested, and the criminal had transferred money into Ms. T's account in the amount of 5.6 billion VND, and Ms. T received a 20% commission for each transaction. Next, the subject claiming to be a police officer asked Ms. T to provide her ID number, name, age, address, and family members, and Ms. T agreed to provide them. When Ms. T said she had nothing to do with the drug case, the subject asked to take a picture of Ms. T's savings book and then accessed the social network Zalo to send the picture to the account named "Cuc CSHS - Ministry of Public Security - Department PC45" for the police to investigate. At 13:30 on the same day, Ms. T continued to receive a phone call from the subscriber number 02430000113 and asked Ms. T to go to the bank to withdraw money from the savings book and transfer it to Ms. T's personal account. To check, Ms. T went to Sacombank to transfer the amount of money in Ms. T's savings book of 9,000,000,000 (9 billion VND) to Ms. T's personal account number 050020368826. When transferring money to her personal account, Ms. T asked the bank to lock the account and not allow the transaction. Immediately after that, the subscriber number 02430000113 called again to continue asking Ms. T to unlock her bank account to perform the check, Ms. T agreed and asked the bank to unlock the account. After obtaining Ms. Pham Thi T's personal information and Sacombank bank account information, the subject continued to ask Ms. T to provide the OTP code sent to Ms. T's phone number, but Ms. T did not provide it, because she knew that it was the code to confirm the money transfer when performing online banking transactions (Internet Banking). Because she could not get the OTP code, the subjects asked Ms. T to provide the series of numbers sent by Sacombank text message, Ms. T did not know that the code sent was to register for the Sacombank Msign application, which is a verification application.