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Overview of the Trial of the Crime of Abuse of Trust and Property Appropriation in Binh Duong Province



each other

Fourth, the time of completion of the crime of the offender is different.


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The time when the subject commits the act of appropriating the victim's property in the crime

The crime of LĐCĐTS with the crime of LĐTNCĐTS is considered to have sufficient elements to constitute a crime when the subject commits the act of appropriating the victim's property and appropriates the victim's property. However, in the crime of LĐCĐTS, the crime is completed at the time of receiving the victim's property by fraudulent means, while in the crime of LĐTNCĐTS, the crime is completed at the time of receiving the victim's property by a legal civil contract agreement, but when the deadline for performing the obligation to return the property is met, the property is not returned to the victim.

Overview of the Trial of the Crime of Abuse of Trust and Property Appropriation in Binh Duong Province

From a personal perspective, students believe that the objective behavior of the crime of fraud to appropriate property includes the act of deception and the act of appropriation. The subject committing the crime of fraud to appropriate property after committing the fraudulent act has created trust in the owner of the property so that the owner of the property signs a contract and on the basis of the contract, the subject committing the crime receives the property or does not have to hand over the property but according to the agreement of the parties, must hand it over to the owner of the property and when the property is actually owned, the crime is considered to be completed. For the subject committing the crime of fraud to appropriate property, the time the crime is completed is the time when the obligation to return the property to the victim must be fulfilled but the subject committing the crime does not return it.


Chapter 1 Summary

After many years of innovation, the judicial work in our country has achieved many important achievements, making positive contributions to the cause of building a socialist rule-of-law state. However, this work is still revealing many shortcomings and limitations such as slow innovation of legal policies in the judiciary, limited organization and operating mechanisms, and a team of officials.


lacking and weak, some have declined in quality, ethics and professional responsibility, there are still injustices and mistakes in investigation, arrest, detention, prosecution and trial. The values ​​of justice and the requirements for protecting justice have not been thoroughly studied to contribute to handling new problems arising in society, thereby significantly reducing fairness, democracy and the rule of law in the management activities of authorities at all levels. From the above comments, assessments and analyses, the correct determination of crimes will have profound theoretical and practical significance in helping to clarify the concept of justice and the content of the requirements for protecting justice in the Judicial Reform Strategy to 2020 in Vietnam.

The importance of crime identification in criminal cases at all stages of the proceedings cannot be denied. There is no legal document in our country's legal system that specifically regulates crime identification, but legally, all criminal activities are essentially about proving crimes and handling criminals according to the crimes prescribed in the Penal Code. For those who study criminal science in general and those who study criminal law in particular, crime identification is very important. Because it is necessary to correctly assess an act, an action and find out the nature, cause, and underlying motive of the person who committed that act in order to make an accurate conclusion. Crime identification is very important, because if the crime is determined incorrectly, it will lead to missing people, missing crimes, or wrongful convictions.

In Chapter 1 of the thesis, with the spirit of contributing to meet the needs of learning, researching and applying the law of those working in the legal profession, the author has disclosed the theoretical contents and legal regulations on crime determination in general, and on crime determination of LDTNCĐTS in particular, and has theoretical significance to disclose the actual status of crime determination activities in practice, which will be presented in Chapter 2 of the thesis.


Chapter 2

PRACTICE OF IDENTIFYING THE CRIME OF ABUSE OF TRUST TO APPROPRIATE PROPERTY IN BINH DUONG PROVINCE


2.1. Overview of the trial of the crime of abuse of trust to appropriate property in Binh Duong province

First of all, it is necessary to emphasize that, in the conditions of economic operation according to the market mechanism, the crime situation in general and the crime of human trafficking in particular occur quite commonly in all areas of social life with increasingly sophisticated and complicated methods and tricks, and the value of property appropriated is increasingly large.

According to the report on the work results of the People's Court of Binh Duong province, from 2014 to 2020, the two-level People's Court in Binh Duong province conducted trials as follows:

- In 2014, the whole province received 1,213 cases of all types, and resolved 1,204 of them; Of which, the crime of LDTNCĐTS received a total of 20 criminal cases and 26 defendants.

- In 2015, the whole province accepted 1,295 cases, resolved 1,289 cases; Of which, the crime of LDTNCĐTS accepted 39 cases/ 44 defendants.

- In 2016, the whole province accepted 1,139 cases, with 1,652 defendants; resolved 1,134 cases with 1,640 defendants; Of which, the crime of LDTNCĐTS accepted 13 cases/ 15 defendants.

- In 2017, the whole province accepted 1,985 cases, with 1,997 defendants; resolved 1,981 cases with 1,987 defendants; Of which, the crime of LDTNCĐTS accepted 19 cases/ 27 defendants.

- In 2018, the whole province accepted 1,961 cases, with 1,969 defendants; resolved 1,959 cases with 1,960 defendants; Of which, the crime of LDTNCĐTS accepted 20 cases/ 21 defendants.


- In 2019, the whole province accepted 2,051 cases, with 2,265 defendants; resolved 2,040 cases with 2,200 defendants; Of which, the crime of LDTNCĐTS accepted 33 cases/ 35 defendants.

- In 2020, the whole province accepted 2,961 cases, with 2,969 defendants; resolved 2,959 cases with 2,960 defendants; Of which, the crime of LDTNCĐTS accepted 49 cases/ 52 defendants.

From the above statistics, it can be seen that in the period from 2014 to 2020 in Binh Duong province, Binh Duong Provincial People's Court tried 1,967 cases/2,207 defendants of property infringement crimes, of which 193 cases/220 defendants committed the crime of LDTNCĐTS. The situation of LDTNCĐTS crimes in Binh Duong province accounts for 17.39% of the number of cases and 20.67% of the number of defendants. Compared to other types of property infringement crimes, the annual rate of LDTNCĐTS crimes accounts for a relatively high rate.

The People's Courts at two levels in Binh Duong province are continuing to thoroughly grasp, fully and effectively implement the contents of Resolution No. 49-NQ/TW, proactively propose programs and work plans with specific tasks and solutions and organize implementation, constantly strive to improve the quality of criminal trials, including the case of LDTNCĐTS, to strictly handle, prevent and gradually push this type of crime out of social life, build a Vietnamese judiciary that is professional, fair, strict, honest, serving the Fatherland and serving the people. The trial activities of the People's Courts at two levels in Binh Duong province have contributed to initially reducing the crime situation in the province. In Binh Duong province, there are many acts of LDTNCĐTS that are not prosecuted, but instead, the parties are guided by the Investigation Agency to initiate lawsuits to dispute legal relations in civil matters.


2.2. Practice of determining the crime of abuse of trust to appropriate property in Binh Duong province

2.2.1. Practice of determining the crime of abuse of trust to appropriate property according to the basic crime components

2.2.1.1. Results achieved

With the sense of responsibility of all civil servants at two levels in the system of the People's Court of Binh Duong province, they have done a good job of resolving all types of cases within the prescribed time limit and in accordance with the law. The total number of criminal cases on the crime of LDTNCĐTS handled from 2014 to 2020 is very high. From 2014 to 2020, the People's Court at two levels of Binh Duong province tried 93 cases/220 defendants on the crime of LDTNCĐTS. Of which, 05 cases were appealed, no appeals were tried on appeal. Analyzing the practice of determining the crime according to the basic criminal procedure, the total number of cases on the crime of LDTNCĐTS detected, investigated and handled accounts for a very high proportion, the process of investigation, prosecution and trial of the crime of LDTNCĐTS is ensured to be the right person, the right crime, and the right law. Through a survey of 93 judgments on the crime of LDTNCĐTS, there were no cases where the Court of Appeal overturned the judgment and requested a re-investigation, and no cases where the crime was amended. The first-instance judgment was upheld in 03 cases, and the remaining cases were amended in terms of prison sentences in a direction favorable to the defendants. The above practical analysis shows the results of the activity of determining the crime accurately according to legal regulations.

2.2.1.2. Limitations and difficulties in determining crimes according to basic elements and causes

Through the practice of investigation, prosecution and trial of the prosecution agencies of Binh Duong province in recent years, it has been shown that the process of resolving this type of crime is basically accurate and objective. However, there are still many difficulties and problems as follows:


Firstly, determining the time of the appearance of the intention to appropriate property is the basis for handling the crime of property appropriation (Article 174 of the 2015 Penal Code) or the crime of property appropriation (Article 175 of the 2015 Penal Code).

As analyzed, the deceitful tricks of the offender before receiving the victim's property are an objective sign of the crime of embezzlement. The criminal act will constitute the crime of embezzlement or other corresponding crimes in the Penal Code that occur in cases where the intention to appropriate the victim's property appears after the owner transfers the property to the offender. The extremely difficult problem for the subject with the authority to determine the crime is to prove whether the offender's intention to appropriate the property appears before or after the transfer of the property. In practice, the subject with the authority to determine the crime has difficulty in determining the time when the intention to appropriate arises. The following case is a typical example:

According to the first instance judgment No. 72/2017/HSST dated May 31, 2017 of the People's Court of Ben Cat town, Cao Van Hoan had an acquaintanceship with Ms. Nong Thi Lieu. On the way to take Ms. Lieu to work, Ms. Lieu asked Hoan if he was going to the company today, and Hoan answered yes. After taking Ms. Lieu to work as usual, Hoan drove the Yamaha Sirius motorbike with license plate 61G1-443.82 to pawn it for 7,000,000 VND to buy an Iphone 5, pay off debts, top up game cards and eat, pay for the car rental and had 239,000 VND left. After that, Hoan called and texted Ms. Lieu to lie that the Yamaha Sirius motorbike with license plate 61G1-443.82 had been pawned by a relative and asked Ms. Lieu to borrow 7,000,000 VND to redeem the motorbike. The case was tried by Ben Cat Town People's Court and the defendant was sentenced to 13 months in prison for the crime of LDTNCĐTS. Defendant Hoan did not appeal.

In this case, during the investigation, defendant Hoan was very stubborn and evasive, denying his crime. Hoan said that his sister


Lieu agreed to hand over the car to Hoan, but Hoan did not drive Ms. Lieu's car without permission. In this case, Hoan took advantage of Ms. Lieu's trust and, after receiving Ms. Lieu's car, had the intention to appropriate it. The question is whether the defendant had the intention to appropriate the car before or after receiving the car. If we assume that the defendant committed the crime of LDTNCĐTS, how can we correctly understand the defendant's fraudulent behavior and the victim's act of handing over the car to the defendant for management? Therefore, there is confusion between these two crimes. However, in the crime of LDTNCĐTS, the offender obtains property through legal contracts as prescribed by the Civil Code and the offender has the intention to appropriate the victim's property after the victim hands over the property.

Second, determine signs of absconding to appropriate property as a basis for handling the crime of embezzlement (Article 174 of the 2015 Penal Code) or the crime of embezzlement (Article 175 of the 2015 Penal Code).

When the market economy develops, the crime situation also increases with economic development and more sophisticated methods. In particular, the complicated development of the crime of LDTNCĐTS must be mentioned. The practice of trying criminal cases shows that the process of determining the crime during the investigation stage still has the problem of "criminalization" and "decriminalization" of disputed relationships. Determining signs of absconding to appropriate property is one of the relatively difficult issues to prove in the process of resolving LDTNCĐTS cases and there are still many different understandings.

The case of “Escaping to appropriate property” according to Point a, Clause 1, Article 175 of the Penal Code leads to many different understandings in the thinking of applying the law because there is no specific guidance. How to understand the case of fleeing with the purpose of appropriating the victim's property correctly is an issue with many different views. In the process of determining the crime, there is a viewpoint that decides to conclude the crime for the person who commits the act of appropriating the crime of LDTNCĐTS when the subject


It is possible to commit the act of appropriation and flee from the place of residence after receiving the property legally. This is not suitable in the practice of resolving criminal cases related to crimes of infringement of property rights because there are cases where the act of fleeing is not intended to avoid the owner of the property being appropriated. The following case demonstrates the above content:

Nguyen Ngoc An, Director of Ngoc An Company Limited, is in the business of exporting rice. In 2017, due to the impact of the global economic crisis, the Company could not pay its debts when due. Many creditors came to the Company to threaten to assault the Director. Due to fear of being beaten, the Director fled to Thailand to work to earn money to pay off the debts. Thus, the Director fled not to seize the creditors' assets but to work to pay off the debts. The objective reason for not being able to pay the debts was not earning profits from the rice business.

If according to point b, clause 1, Article 175 of the Penal Code, how is the act of using that property for illegal purposes leading to the inability to return the property understood correctly? In practice, in Binh Duong province, hundreds of hui owners went bankrupt because they were unable to pay their hui members. Members who contributed money to the hui owner could not prove the process of handing over money to the hui owner. The hui owner claimed that he did not violate the Penal Code because there was no document showing the handover of money between the hui owner and the members who contributed money, so he left to live elsewhere without letting the members who contributed money know his new residence. So the question is whether the hui owner is considered to have absconded when he is absent. The Law on Residence does not stipulate that he must declare the place of move. In this case, the competent authority to determine the crime must prove that the act of hiding from the members contributing money of the hui owner is aimed at appropriating the money contributed by the members, then there will be enough elements to constitute the crime of LDTNCĐTS.

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