crimes against human honor and dignity; crimes against property; or crimes against public order...
- The crime of abusing military needs while performing duties is an act of abusing the necessity for military duties, causing damage to the property of the State, organizations, and citizens, such as in the case of only needing to mobilize a small amount of State, organization, and citizen property for military duties but mobilizing an excessive amount of property; destroying a part of State, organization, and citizen property to build roads to serve military needs but destroying all of it... According to the provisions of Vietnamese law, the mobilization of property of organizations (excluding state agencies, public service units, and people's armed forces units) and of citizens for military duties is carried out in the form of a decision to requisition or requisition property by a competent authority [50, p. 6]. When requisitioning property, the person with the property and the person with the authority to decide on the requisition agree on the price of the requisitioned property based on the common market price. Local financial agencies are responsible for paying the money for requisitioning property to the person whose property is requisitioned. For requisitioned property, the person whose property is requisitioned is compensated for damages when: the property is lost or damaged; or there is loss of income directly caused by the requisition of property [50, pp. 20-21]. In our opinion, the provisions of the law on requisitioning and confiscation of property, although limiting the prevalence of the act of abusing military needs while performing duties. However, the provision of criminal responsibility for the act of abusing military needs while performing duties is of great significance for deterring and preventing crimes. Therefore, it is necessary to continue to regulate this crime in the Penal Code.
On the other hand, studying the provisions of international law, we see in Articles 33 and 53 of the Geneva Convention of August 12, 1949 on the protection of civilians in
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During the war, it is stipulated that: “Looting is prohibited; and it is not permitted to destroy personal, private, state, social or cooperative property, or real estate, unless such destruction becomes absolutely necessary for military operations [5, pp. 178, 187]”. And as presented, the Socialist Republic of Vietnam has joined the international conventions on the protection of victims of war, the Protocol (No.
I) supplement these international conventions and is studying the possibility of joining the Protocol (No. II) supplementing the international conventions on the protection of victims of non-international armed conflicts [4, pp. 1-12]. Therefore, studying and amending the provisions of the Criminal Code on the crime of abusing military needs while performing duties in the direction of prescribing criminal responsibility for acts of violating international law on the protection of victims in armed conflicts of (or not) international nature causing damage to property of people in areas of military activity is very meaningful.
Chapter II Conclusion
From the above studies, we can conclude some points about crimes violating the duties and responsibilities of military personnel according to the provisions of Vietnamese criminal law as follows:
1. Crimes that violate the duties and responsibilities of military personnel were first regulated in military administrative documents regulating the management of troops; then they were regulated in the Decree on the organization of military courts and were called "crimes of a military nature".
2. In the 1985 Penal Code, crimes of violating the duties and responsibilities of military personnel are regulated in Chapter XI, Section on crimes, including:
including 28 specific crimes, an increase of 15 crimes compared to the provisions of Decree 163 dated August 23, 1946; and there has been much progress in legislative techniques.
3. Crimes of violating the duties and responsibilities of military personnel are regulated in Chapter XXIII of the 1999 Penal Code, including 27 crimes. Compared to the provisions of the 1985 Penal Code, the crimes of violating the duties and responsibilities of military personnel under the provisions of the 1999 Penal Code are reduced by 1 crime. Like the 1985 Penal Code, the 1999 Penal Code still has one article (Article 315) regulating those who must bear criminal responsibility for crimes of violating the duties and responsibilities of military personnel.
4. The regulation that dangerous acts that violate the duties and responsibilities of soldiers are considered crimes and must be punished is of great significance to the building of the Vietnam People's Army in a revolutionary, disciplined, elite, and gradually modern direction; ready to successfully carry out the task of protecting the Fatherland.
5. The provisions of the 1999 Penal Code on crimes of violating the duties and responsibilities of military personnel have not yet overcome the shortcomings in the provisions of the 1985 Penal Code on these crimes.
Chapter 3
Practical application and recommendations for perfecting the criminal code on crimes
violating the duties and responsibilities of soldiers
3.1. Practical application of the provisions of the Penal Code on crimes of violating the duties and responsibilities of military personnel
3.1.1. Number of cases and number of people investigated, prosecuted and tried for crimes violating the duties and responsibilities of military personnel
- According to statistics from the Criminal Investigation Department of the Ministry of National Defense, on average each year: the number of cases of crimes violating the duties and responsibilities of military personnel accounts for 23.17% of the number of cases under the jurisdiction of the Military Court prosecuted by criminal investigation agencies in the Army; the number of people prosecuted for crimes violating the duties and responsibilities of military personnel accounts for 23.55% of the number of people prosecuted by criminal investigation agencies for crimes under the jurisdiction of the Military Court (see Table 3.1).
Table 3.1: Ratio of the number of cases and the number of people prosecuted for crimes violating the duties and responsibilities of military personnel calculated on the total number of cases and the number of criminals under the jurisdiction of the Military Court prosecuted by the Criminal Investigation Agencies in the Army (from 2000 to 2009 )
% input
% of people with diabetes
100
80
60
40
20
0
2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
- According to statistics of the Central Military Procuracy, on average each year: the number of cases of crimes violating the duties and responsibilities of military personnel accounts for 23.15% of the number of cases under the jurisdiction of the Military Court prosecuted by the Military Procuracy; the number of defendants prosecuted for crimes violating the duties and responsibilities of military personnel accounts for 23.34% of the number of defendants prosecuted for crimes under the jurisdiction of the Military Court (see Table 3.2).
Table 3.2: Ratio of the number of cases and the number of defendants prosecuted for crimes violating the duties and responsibilities of military personnel calculated on the total number of cases and the number of defendants for crimes under the jurisdiction of the Military Court prosecuted by the Military Procuracy (from 2000 to 2009)
% input
% of the number of copies
100
80
60
40
20
0
2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
- According to statistics of the Central Military Court, on average each year: the number of cases of crimes violating the duties and responsibilities of military personnel accounts for 23.23% of the number of cases tried by military courts; the number of defendants tried for crimes violating the duties and responsibilities of military personnel accounts for 23.37% of the number of defendants tried by military courts (see Table 3.3)
Table 3.3: Ratio of number of cases and number of defendants tried for crimes of violating military duties and responsibilities calculated on total number of cases and number of defendants tried by military courts (from 2000 to 2009)
% input
% of cases
100
80
60
40
20
0
2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
The above figures show that the number of cases and defendants tried for crimes violating the duties and responsibilities of military personnel is not much compared to the number of cases and defendants tried for cases under the jurisdiction of the People's Court. The fact that there are few or no cases in general, including cases of crimes violating the duties and responsibilities of military personnel, is primarily due to the viewpoint of fighting against crime in the Army, which is carried out according to the principle of "prevention to combat". Therefore, criminal proceedings agencies in the Army proactively prevent crime by propagating and educating the law for military personnel. Propagating and educating the law for military personnel is carried out in many forms, of which legal talks, organizing mobile trials and writing notices on the trial of criminal cases to units stationed in the area of jurisdiction as general educational materials are important forms.
According to the annual summary report of the Military Court sector, from 2000 to 2009, the entire Military Court sector: organized 39,059 hours of legal talks for hundreds of thousands of officers and soldiers of military units stationed in the area of jurisdiction; brought 2,106 cases (including cases of crimes against the duties and responsibilities of military personnel) to the locality and unit where the crime occurred for mobile trials; and wrote 1,017 trial notices to military units in the area as general education materials [65-72, 74, 75]. Leaking the nature and level of danger of criminal acts, causes and conditions for the occurrence of crimes at mobile trials and in the "Notice on the trial of cases"; Conviction and severe punishment have great significance for the propaganda and legal education of those attending the trial who are informed of the "Notice of Trial".
Along with propaganda and legal education activities, military units have done a good job of managing troops, party work, political work and taking care of the material and spiritual life of troops. Therefore, it has limited and in many units eliminated the causes and conditions for the occurrence of crimes, including cases of crimes that violate the duties and responsibilities of soldiers.
Studying the total number of sentences tried by military courts on crimes violating the duties and responsibilities of military personnel, we see that among the 27 specific crimes violating the duties and responsibilities of military personnel stipulated in Chapter XXIII of the 1999 Penal Code, the following crimes have been tried by military courts: Crime of disobeying orders; Crime of not strictly obeying orders; Crime of preventing comrades from performing their duties and responsibilities; Crime of humiliating or assaulting commanders or superiors; Crime of humiliating or using corporal punishment on subordinates; Crime of humiliating or assaulting comrades.