accurately and objectively the following factors: i Identify, consider and accurately assess the circumstances of the case that occurred in objective reality; ii Correctly perceive the content of the criminal law regulations related to the crime committed; iii Correctly select the corresponding criminal law regulations to accurately and fully compare the signs constituting the crime prescribed in the legal regulations of gambling crimes with the circumstances of the specific acts committed in reality, on that basis, draw a well-founded conclusion about the consistency between the actual acts committed and the prescribed criminal elements. That conclusion must be presented in the form of a law enforcement document.
2.1.1.2. Meaning of crime determination activity
Determination of crime is a fundamental stage in the application of criminal law norms. Correct determination of crime will have great political, social, ethical and legal significance and vice versa.
- For the activity of determining the correct crime, it is a manifestation of the correct implementation of political measures, the correct implementation of the people's will as expressed in the law, effectively protecting the interests of society, the State, people and citizens.
- Correctly identifying crimes is a prerequisite for the differentiation of criminal responsibilities and individualization of punishments in a fair and legally based manner. Correctly identifying crimes will support the implementation of a series of progressive principles recognized in a state of law such as: the principle of legality, responsibility, the principle of equality before criminal law... and is one of the bases for the correct application of criminal procedural law. Correctly identifying crimes will eliminate the groundless conviction 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.
- The consequences of criminal conviction are very diverse. But the most basic of these consequences is the application of penalties or other criminal legal measures prescribed by law.
2.1.1.3. Legal basis of crime determination
Criminal law is very important in the process of determining crimes. The legal basis for determining crimes is criminal law, which is the legal norms applied when determining crimes. The nature of determining crimes is to find similarities between the signs of socially dangerous acts with the corresponding signs in the definition of a certain type of crime prescribed in criminal law. The result of determining crimes is to find out where socially dangerous acts are prescribed in the criminal code and determining crimes requires citing specific provisions of the Penal Code.
2.1.2. Practice of determining the crime of gambling, organizing gambling or gambling in Ha Tinh province
2.1.2.1. Results of the conviction
In recent years, gambling crimes have become quite complicated and have caused damage to many aspects of social life. The fight against gambling crimes has been given attention. The provisions of the Penal Code on gambling crimes have been thoroughly applied in investigation, prosecution and trial activities.
In the investigation, prosecution and detection of crimes, it is necessary to mention the great efforts of the authorities. Many betting spots, gambling spots or football betting lines carried out on different scales have been discovered and handled. In recent times, gambling crimes in Ha Tinh province have had many complicated developments, law enforcement agencies in Ha Tinh province have taken many active measures to handle and fight against this type of crime. Many large-scale gambling cases have been promptly handled by the law enforcement agencies of Ha Tinh province, ensuring fairness, the right person, the right crime, and the right law, contributing to maintaining the stability of the economic, political situation and social order and safety in the area.
* Analysis of trial practice data in Ha Tinh province for 5 years from (2012 to 2016)
Table 2.1: Total number of cases and defendants convicted in Ha Tinh province from 2012 to 2016
Year
Crime situation | Gambling Cities | Percentage | ||||
Number of cases | Number of defendants | Number of cases | Number of defendants | Number of cases | Number of defendants | |
2012 | 605 | 1009 | 63 | 320 | 10.4% | 31.7% |
2013 | 636 | 1517 | 73 | 365 | 11.4% | 24.1% |
2014 | 732 | 1469 | 86 | 458 | 11.7% | 31.1% |
2015 | 841 | 1551 | 93 | 549 | 11.0% | 35.3% |
2016 | 784 | 1403 | 84 | 508 | 10.6% | 36.2% |
Total | 3598 | 6949 | 399 | 2200 | 10.1% | 31.6% |
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Source: General Office of Ha Tinh Provincial People's Court Through the table above we can see the number of gambling cases from 2012 to
In 2016, the People's Courts at all levels of Ha Tinh province accepted and resolved 399 cases with
2,200 defendants for gambling and organizing gambling. The number of cases accepted for settlement accounts for an average of 10.1% of the total number of cases brought to trial, which is a fairly high number of cases in the total number of cases brought to trial. The number of defendants committing crimes accounts for 1/3 31.6% of the total number of defendants brought to trial, of which 2015 had the highest number with 93 cases and 549 defendants.
Table 2.2: Total number of cases and number of defendants convicted of gambling, organizing gambling or gambling in Ha Tinh province from 2012 to 2016
Year
Gambling crimes | Crime of gambling (Article 248) | Crime of organizing gambling (Article 249) | Silver stand (D 249) | |||||||||||
Number of cases | Number of defendants | Service | Accused | Service | Accused | Service | Accused | |||||||
K1 | K2 | K1 | K2 | K1 | K2 | K1 | K2 | K1 | K2 | K1 | K2 | |||
2012 | 63 | 320 | 42 | 12 | 283 | 24 | 05 | 02 | 05 | 06 | 02 | 0 | 02 | |
2013 | 73 | 365 | 44 | 14 | 320 | 20 | 07 | 03 | 07 | 03 | 05 | 0 | 05 | |
2014 | 86 | 458 | 54 | 18 | 424 | 20 | 09 | 02 | 09 | 02 | 03 | 0 | 03 | |
2015 | 93 | 549 | 52 | 17 | 505 | 25 | 11 | 02 | 15 | 02 | 02 | 0 | 02 | |
2016 | 84 | 508 | 48 | 12 | 454 | 24 | 14 | 06 | 20 | 06 | 04 | 0 | 04 | |
Total | 399 | 2200 | 240 | 73 | 1986 | 113 | 46 | 15 | 56 | 19 | 16 | 0 | 16 | |
Source: General Office of Ha Tinh Provincial People's Court Through the above data table, it can be seen that gambling crimes in Ha Tinh Province
During the period from 2012 to 2016, the main crimes brought to trial were Gambling with 313 cases/2099 defendants; Organizing Gambling with 61 cases/75 defendants; Gambling with 16 cases/16 defendants. Gambling and organizing gambling were mainly tried according to Clause 1, Article 248, Clause 1, Article 249 of the Penal Code. Researching the verdicts on gambling, organizing gambling or gambling, it shows that in the past, the People's Court at two levels of Ha Tinh province has conducted timely, strict trials, with the right people, the right crimes, and in accordance with the law, with no cases of injustice or letting criminals escape.
2.1.2.2. Inadequacies, limitations and causes
The exact determination of the crime is very important and is the basis for applying punishment to the offender. The 1999 Penal Code, amended and supplemented in 2009, has stipulated the signs constituting the crime of gambling and organizing gambling or gambling, Resolution No. 01/2010/NQ-HDTP of the Council of Judges of the Supreme People's Court guiding the application of some provisions in Article 248 and Article 249 of the Penal Code are important legal bases for the prosecution agency to apply when determining the crime.
However, in practice, some two-level People's Courts of Ha Tinh province still face many difficulties and problems in determining the crime of gambling, as follows:
First, there is a problem with determining the money or objects used for gambling.
According to the provisions of Clause 3, Article 1 of Resolution No. 01/2010, money or objects used for gambling are determined from the following sources : a) Money or objects used for gambling seized directly at the gambling table; b) Money or objects seized from gamblers that have grounds to determine that they were or will be used for gambling; c) Money or objects seized elsewhere that have sufficient grounds to determine that they were or will be used for gambling. This provision is understood that only money or objects used for gambling that are seized or confiscated from the cited sources will be used to prosecute criminal liability.
For example: At around 9:00 a.m. on November 7, 2013, at a cafe in Thach Linh Ward, Ha Tinh City, the subjects Nguyen Van Que, Nguyen Van Binh, Nguyen Tuan Minh, and Ngo Dang Hanh gambled in the form of playing cards (playing Phom), confiscated at the gambling table 3,070,000 VND, confiscated from Nguyen Van Binh 15,000,000 VND, and Ngo Dang Hanh 1,100,000 VND. Nguyen Van Binh was the subject participating in gambling from the beginning until he was caught red-handed, carrying 15 million VND, but the prosecution agency and the prosecutor determined that the defendant only gambled 1,000,000 VND of that amount and the Court ordered the defendant to be returned 14,000,000 VND. Thus, the confiscation of money from the gamblers and the determination of whether or not the money was used for gambling in practice is very important. difficult to determine. In our opinion, the determination that defendant Binh only used 1,000,000 VND for gambling out of the total 15,000,000 VND he brought with him is baseless and baseless. In this case, the person conducting the proceedings determined arbitrarily and according to his own subjective consciousness, so he determined the total amount of money used for gambling incorrectly.
In reality, when caught red-handed gambling, some subjects flee with gambling money, then turn themselves in and hand over the money, so determining the money or objects used for gambling only includes
The money or objects seized as guided in Clause 3, Article 1 of Resolution No. 01/2010 are not appropriate, but it is necessary to determine the gambling money from other sources and have a basis that the money and objects were used for gambling.
In addition, the provision in Clause 3, Article 1 also contradicts the provision in Point b, Clause 4, Article 1 of Resolution No. 01/2010. Because, in gambling cases in the form of football betting, playing lottery (one person playing with many people), the parties do not always give money immediately upon agreement or if they do give money immediately, the bookmakers are not foolish enough to keep that money on their person. Normally, to handle criminal liability in lottery and football betting cases, the determination of the amount of gambling money is based on the exposed numbers, phone messages, and confiscated books. If only the amounts of money are confiscated from the above 03 sources, it will be impossible to combat and prevent these gambling acts. Therefore, it is necessary to add a provision to Clause 3, Article 1 of Resolution No. 01/2010 on determining money or objects used for gambling that cannot be confiscated to overcome the above shortcomings as well as to be consistent with reality.
Second, it is difficult to determine the types of means of payment for the winnings and losses of gambling crimes.
Money or objects are considered as means of payment for winning or losing in gambling. Determining the amount of money and the value of objects used for gambling is important for determining the crime and the penalty. However, the practical application as well as the provisions of the Penal Code and guiding documents on the above issue still have many shortcomings and difficulties, especially issues such as: Determining the types of means of payment for winning or losing in gambling crimes; The value of assets that gamblers use for gambling or the issue of determining the amount of money; the value of objects used for gambling in the case of playing lottery, betting on football, betting on horse racing.
According to the provisions of Clause 1, Article 248 of the Penal Code, the means of committing a crime must be one of two types: Money or objects. However, both in theory and practice, the means of committing a gambling crime are determined to include Vietnamese currency, foreign currency, other valuable payment papers or objects, property rights used for gambling. Thus, in fact, this concept is understood more broadly than the word used to
expression, in other words, it is understood in the sense of the concept of property. The law stipulates that the means of committing a crime is only money or objects, leading to many difficulties in practical application. In many cases, the prosecution agencies are confused when determining the amount of money and the value of assets used for gambling.
In practice, we should define the means of payment for the winning or losing of gambling as property, instead of defining it as objects. Because defining the means of payment as "property" will be suitable both in theory and practice. If we only define the means of payment as "money or objects", in many situations there will not be enough basis to prosecute criminal liability for gambling acts that are significantly dangerous to society. And in reality, when gamblers use objects to gamble, they often convert them into money and to determine the value of the objects and only rely on the statements of the subjects, it is very difficult to determine, so in some cases, we need to evaluate the assets to determine.
Third, for determining the amount of money or value of the goods used by the bettors, bookmakers, bookies, and bookmakers for gambling.
Point a, Section 5.1 and Point a, Section 5.2, Clause 5, Article 1 of Resolution No. 01/2010 provide guidance on determining the money or objects used for gambling by bettors and bookmakers, and by bookmakers and bookmakers, as the total amount of money they gamble together with the amount of money that bettors and bookmakers win, as follows:
5.1. Determine the amount of money or value of the goods used by the player for gambling
In case a lottery player or bettor wins the lottery or bets, the amount of money he uses to gamble is the sum of the money he spent to buy the lottery or bets plus the actual amount he receives from the bookmaker or bookmaker.
5.2. Determine the amount of money or value of the subject, the bookmaker uses for gambling
a) In case a lottery player or bettor wins the lottery or bets, the amount of money the bookmaker or bettor uses for gambling is the total amount of actual money that the bookmaker or bettor has received from the lottery players or bettors and the amount that the bookmaker or bettor must pay to the winner (which can be one or more people ) [18]
Thus, determining the money or objects used for gambling in the above case is not only based on the committed act but also on the time of detecting the violation. We believe that the way of calculating the amount of gambling money in this case is not appropriate, not properly assessing the nature and level of the act that the gambler has committed. From theory and practice, to assess the nature and level of danger of a crime, criminal law science divides the process of committing a crime into 3 stages. Depending on which stage the crime is discovered to be committed, the corresponding criminal liability will be set. Accordingly, the criminal liability will be determined in a more severe direction according to the order of each stage: preparation for committing a crime, attempted crime, completed crime. In addition, the Penal Code also stipulates the prosecution of a person's criminal liability based on the act they commit. After the crime has been completed, the reliance on consequences to prosecute the criminal liability only applies in cases where the offender commits the crime with indirect intent. Meanwhile, for the crime of gambling, the offender commits the crime with direct intent, but according to Clause 5, Article 1 of Resolution No. 01/2010, the prosecution of the gambler's criminal liability is based on the time of discovery of the crime, while the crime has been completed from the time the two parties have agreed on the amount of money gambled and the win-loss ratio. Furthermore, whether the gambling is discovered before or after the win-loss result, the act will end and will be considered for handling. We cannot say that by the time the win-loss result is available, the gambler's behavior will be more dangerous than in cases where there is no win-loss result.
Besides, the regulation on determining the amount of gambling money based on the time of crime detection also causes difficulties in practical application.
For example: At 4:40 p.m. on March 20, 2015, at Pham Van Nhat's private home in Phuc Dong commune, Huong Khe district, Ha Tinh, the investigation agency caught Pham Van Nhat red-handed writing down lottery numbers for Tran Thin, confiscated at the scene 50,000 VND and
6,770,000 VND on Phan Van Nhat and 2 phones; Checking phone messages determined that on March 19, 2015, Nguyen Quoc Huy played lottery with Nhat for 3,220,000 VND; Phan Dinh Thong played lottery with Nhat for 1,400,000 VND