Practice of Determining the Crime of Resisting a Law Enforcement Officer According to the CU Increases the Aggravated Penalty

The patrol team asked Hieu and Gioi to stop for inspection, but Hieu and Gioi did not comply. At this time, the patrol team consisted of 4 mobile police officers (in mobile police uniforms, wearing helmets) riding on 2 motorbikes (Mr. Nguyen Anh Thang carrying Mr. Pham Van Chung; Mr. Giang Son Tung carrying Mr. Vu Xuan Thu) chasing after them. Mr. Thang approached Hieu and Lanh's motorbike with his motorbike and signaled them to stop. Hieu stopped and left, while Lanh stayed. Mr. Chung asked Lanh to show his papers for inspection, but Lanh did not have any papers and cursed at Mr. Thang and Chung. Mr. Thang and Chung informed them that they were holding Lanh's motorbike for an administrative violation. Lanh did not comply, struggled, and held the back of the motorbike, not allowing Thang and Chung to keep it. Meanwhile, Gioi and Lam's motorbike arrived. Seeing Gioi and Lam not wearing helmets, Giang Son Tung drove his motorbike close to Gioi's motorbike, Vu Xuan Thu signaled him to stop. Gioi complied, stopped his motorbike, and could not show his papers. Lam went to Lanh's place, Lam and Lanh struggled with Thang and Chung, not allowing Lanh to keep Lanh's motorbike. Seeing the Mobile Police comrades requesting to keep Gioi's motorbike; Lam and Lanh went to Gioi's place and continued to struggle with Tung, but Thu did not allow them to keep the motorbike. Seeing that, Tung and Chung restrained Lam, Thu restrained Lanh, Thang restrained Gioi. Lam and Lanh struggled, using their hands and feet to fight back. The two sides struggled and fought. Lam ran into the motorbike repair shop of Nguyen Dang Nhi, born in 1980, in village 2, Kien Bai commune, took an iron pipe about 80cm long, Ø34, one end welded with 4 pieces of black metal 3cm long, then ran to where the Mobile Police attacked. Lam used the iron pipe to hit Tung's body and head, breaking the helmet he was wearing. The Mobile Police continued to control Lam, then Lanh ran up and continued to fight back with her hands and feet. Thu fired a K59 gun into the air as a warning, but Lam and Lanh still did not stop. At this time, other Mobile Police in the working group arrived by car, together with Tung, Chung, Thu, Thang, arrested Lanh, Lam, Gioi and the evidence and brought them to the Kien Bai commune police station to make a record of the arrest of the person caught red-handed committing a crime.

In the Forensic Examination Conclusion on Injuries No. 124/2017/TgT dated March 10, 2017 of the Hai Phong Forensic Center, it was concluded that Mr. Giang Son Tung was

Scratches on the right cheek are caused by direct impact from a hard-edged object; swelling on the back of the right hand is caused by direct impact from a blunt object. Consequences reduce health by 2%.

Indictment No. 84/CT-VKS dated June 29, 2017 of the People's Procuracy of Thuy Nguyen district prosecuted Pham Duy Lam and Pham Duy Lanh for the crime of Resisting a person on official duty under Clause 1, Article 257 of the Penal Code.

In the judgment No. 102/HSST dated August 30, 2017 of the People's Court of Thuy Nguyen district, based on Clause 1, Article 257, Article 53, Points h, p, Clause 1 and Clause 2, Article 46 of the Penal Code, the defendant Pham Duy Lam was sentenced to 15 (fifteen) months in prison. Based on Clause 1, Article 257, Article 53, Article 60, Points b, h, p, Clause 1 and Clause 2, Article 46 of the Penal Code, the defendant Pham Duy Lanh was sentenced to 12 (twelve) months in prison but given a suspended sentence, with a probation period of 24 (twenty-four) months, all for the crime of resisting a person performing official duties.

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Example 2 : At about 11:40 a.m. on May 15, 2013, Nguyen Van An drove a black TOYOTA CAROLLA Altis car with license plate 29N-1423 carrying 3 passengers from Quang Ninh to Vinh Bao district, Hai Phong on National Highway 10. When arriving at the traffic light at Cho Kenh intersection in An Lao district, Hai Phong, Phong drove the car through a red light. Lieutenant Cao Van P, a traffic police officer at Quan Tru station under the Traffic Police Department of Hai Phong City Police, used a professional camera at Cho Kenh intersection to provide information via walkie-talkie to the Quan Tru traffic patrol team on duty to control traffic at Km 42 in Dai Do village, Tien Cuong commune, Tien Lang district about the driver of car with license plate 29N-1423 running a red light.

At about 11:44 a.m. the same day, when discovering the car driven by An, the traffic police patrol team consisting of Senior Lieutenant N, Senior Lieutenant K and Senior Lieutenant H used batons and whistles to signal the car to stop. An did not stop the car but slowed down the car. An suddenly accelerated the car straight towards Senior Lieutenant N, causing Mr. N to jump onto the front hood of the car, then fell onto the road causing injuries. Meanwhile, An continued driving the car for about 200m before being hit by the team's car.

Traffic police stopped and made a record of the arrest of An, who was caught red-handed.

In the Forensic Examination Conclusion on Injury No. 110/2017/TgT dated May 25, 2013 of the Hai Phong Forensic Center, it was concluded that Mr. N suffered injuries that reduced his health by 9%. Mr. N filed a petition to prosecute An for the crime of Intentional Infliction of Injury and requested compensation.

Indictment No. 23/CT-VKS dated July 30, 2013 of the People's Procuracy of Tien Lang district prosecuted Nguyen Van An for the crime of Intentionally causing injury under Point k, Clause 1, Article 104 of the Penal Code.

In the judgment No. 30/HSST dated September 26, 2013 of Tien Lang District People's Court, based on point k, clause 1, Article 104 of the Penal Code, Nguyen Van An was sentenced to 21 (twenty-one) months in prison for the crime of Intentional Infliction of Injury.

Through the two examples above, for example two, if during the process of prosecution, investigation, and trial, the victim withdraws the request, the case must be suspended according to Article 105 of the Criminal Procedure Code. At this time, the proper activity is the performance of the duties of the person performing public duties and, more importantly, the State's activities in social management and state management are not protected.

Up to now, there has been no document guiding the handling of the above behavior, even the 2015 Penal Code, effective from January 1, 2018, does not stipulate anything different from the 1999 Penal Code regarding the above behavior for both crimes.

Thereby, the author finds that there should be specific regulations on the act of resisting a person performing official duties, causing injury or harm to a person performing official duties with an injury rate of less than 11%, then it should be handled as the crime of resisting a person performing official duties.

2.3.2. Practice of determining the crime of resisting a person on official duty according to the aggravated form

The crime of Resisting a person on official duty has the following signs of the penalty framework prescribed in Clause 2, Article 257: Organized; committing the crime many times; inciting, enticing, or provoking others to commit the crime; causing serious consequences; dangerous recidivism.

Through a survey in Hai Phong city on the definition of the crime of resisting a person on duty, no case was determined to have signs of causing serious consequences . In fact, how can we determine what causes consequences?

There are also many different opinions on seriousness, because there is no document guiding this circumstance for the crime of resisting a person on official duty. However, the 2015 Penal Code, effective from January 1, 2018, stipulates in Clause 2, Article 330 that this crime has some new signs, more specific than Clause 2, Article 257 of the 1999 Penal Code. These are:

2. Committing a crime in one of the following cases shall be punishable by imprisonment from 02 years to 07 years:

a) Organized;

b) Committing the crime 02 times or more;

c) Inciting, enticing, or inciting others to commit crimes;

d) Causing property damage of VND 50,000,000 or more; e) Dangerous recidivism.

Thus, there is no more serious consequence , so the author does not go into further analysis of this detail.

In practice, Hai Phong city has resolved cases with the framing circumstances stipulated in Clause 2, Article 257, showing that the offender's behavior is very blatant and brutal, destroying the great values of the cultural lifestyle of the Vietnamese people.

For example : On December 28, 2012, the People's Committee of Hai Phong city issued Decision No. 2314/QD-UBND, allowing VICO Limited Liability Company to lease 8,284.1m2 of land that had been recovered by the People's Committee of An Duong district and completed compensation and site clearance in An Duong village, An Dong commune, An Duong district for the purpose of implementing the investment project to expand the cosmetic production workshop. Allowing VICO company to use 492m2 of land planned to make a drainage ditch to replace the old ditch that was recovered and 269m2 of land planned to open a shared road that had been recovered by the People's Committee of An Duong district and completed compensation and site clearance to make a replacement ditch and a shared road. After completing the ditch and road, hand it over to the People's Committee of An Dong commune, An Duong district for management. In 2013, VICO Company proceeded to expand the factory. When the company saw the wastewater drainage pipe connected to the common drainage pipe and

Using heavy trucks to transport raw materials through Ngo 27, An Duong village, some households in Ngo 27, An Duong village, An Dong commune, complained to the People's Committee of the commune and the authorities. The People's Committee of An Dong commune and VICO Company met many times to discuss and agree on how to resolve the complaints, but the households in Ngo 27 still did not agree. At the end of 2013, Le Thi Nguyet Nga and Nguyen Thi Nga, along with some households in Ngo 27, contributed money and hired workers to erect two barrier posts at the head of Ngo 27 to block the Company's trucks from passing through the alley to the factory. The People's Committee of An Dong commune invited representatives of the An Duong village government, representatives of VICO company and households in Ngo 27 to resolve the issue, but to no avail. The households did not agree to dismantle the barrier and did not allow the company's cars to pass through No. 27. After that, the People's Committee of An Dong commune issued a notice requesting the illegal barrier to be dismantled, but the households did not comply. On May 28, 2014, the People's Committee of An Duong district issued Official Dispatch No. 210/UBND-VP assigning the People's Committee of An Dong commune to organize the dismantling of the barrier at No. 27, An Duong village, An Dong commune, An Duong district, Hai Phong city and assigning the An Dong commune police force to develop a plan to organize the forced dismantling. At 8:00 a.m. on May 31, 2014, the An Dong commune police coordinated with other forces to implement the decision to forcibly dismantle the illegally built barrier at No. 27, Road 208, An Duong commune, An Duong, Hai Phong. When the enforcement force had dismantled the outer barrier and was carrying out the demolition inside, Nguyen Thi Nga and Le Thi Nguyet Nga, born in 1956, both at alley 27, road 208, An Duong village, An Dong, An Duong, Hai Phong, along with a number of subjects came out to curse, insult, and offend the task force. The leaders of An Dong Commune People's Committee, the enforcement force and enforcement protection mobilized, propagandized, and explained, but the subjects did not comply. Le Thi Nguyet Nga pulled down her pants and, together with Nguyen Thi Nga, rushed in to hug the barrier post, preventing it from being dismantled. At 12 o'clock the same day, comrade Nguyen Van Hien, Vice Chairman of An Dong Commune People's Committee, and leaders of An Duong District People's Committee came in to explain to the subjects that erecting a barrier at alley 27 was against the law, but these people still did not agree and continued to challenge and insult the task force. Then, the task force dismantled the barrier, Nguyen Thi Nga and Le Thi

Nguyet Nga rushed in and hugged the barrier post to prevent it from being dismantled. Among them, Le Thi Nguyet Nga held a photo frame and hugged the post to put pressure, not allowing the enforcement force to dismantle the barrier. When comrade Tran Duy Hung, born in 1982, An Dong Commune Police Officer asked Le Thi Nguyet Nga to leave the barrier post, Le Thi Nguyet Nga pushed, struggled, and then kicked the photo frame, causing the glass of the photo frame to break and stab comrade Hung's left arm. At the same time, comrade Do Khac Sang, born in 1971, An Dong Commune Police Officer, came in to take Le Thi Nguyet Nga out, but Nga pulled down her pants and bit comrade Sang's hand. After that, the police force took Nguyen Thi Nga and Le Thi Nguyet Nga to the headquarters for questioning.

Second time: Implementing Official Dispatch No. 250 dated July 1, 2014 of the People's Committee of An Duong district on the renovation and upgrading of Ngo 27 road in An Duong village, An Dong commune, the first section connecting from Road 208 to the project area of VICO Company Limited and Plan No. 82 dated August 5, 2014, the People's Committee of An Duong district carried out the task of directing the protection of the construction and upgrading of Ngo 27, Road 208. At about 8:00 a.m. on August 6, 2014, the functional forces of An Duong district and An Dong commune, together with VICO Company Limited, organized the construction and upgrading of Ngo 27 in An Duong village, An Dong commune, An Duong, Hai Phong, Nguyen Thi Nga and Le Thi Nguyet Nga along with a number of subjects continued to curse and insult the task force. Nguyen Thi Nga and Le Thi Nguyet Nga rushed out to block the excavator from digging the ground to install the drainage pipe, and blocked the truck from carrying soil and materials for the construction. At the same time, the two subjects also cursed and threatened the excavator driver, not allowing him to dig the ground for the construction. At that time, comrade Nguyen Van Hien - Vice Chairman of An Dong commune and the construction security force tried to persuade and explain, but Nguyen Thi Nga and Le Thi Nguyet Nga also used provocative words to provoke some subjects claiming to be war invalids to come to interview, film, and take photos to obstruct and put pressure. At about 19:30 on the same day, when the Mobile Police Force of Hai Phong City Police arrived to support the construction security, the construction force was able to carry out their duties.

In the forensic examination conclusion on injuries No. 263 - PY/2014 of the Hai Phong City Forensic Center, it was concluded: Victim Do Khac Sang, area

The middle third of the right forearm has a tooth bite mark about 5cm long, with minor skin scratches, no bleeding, and slight bruising. The wound is currently stable, leaving no sequelae and reducing the victim's health.

In the forensic examination conclusion on injuries No. 264 - PY/2014 of the Hai Phong City Forensic Center, it was concluded that the victim Tran Duy Hung had a wound below the Delta muscle of the left arm, about 0.6cm long, 1.7cm deep, with a little blood inside, and jagged bleeding edges. Currently, the wound has stabilized and reduced the victim's health by 1% (one percent).

On August 18, 2014, the Investigation Police Agency of An Duong District Police issued an order to temporarily detain Nguyen Thi Nga, while Le Thi Nguyet Nga fled the area.

In the judgment No. 29/HSST dated July 10, 2015, the People's Court of An Duong district applied point b, clause 2, Article 257; points n, p, clause 1, clause 2, Article 46, Article 60 of the Penal Code to sentence Nguyen Thi Nga to 24 months in prison but with a suspended sentence, a probation period of 48 months for the crime of Resisting a person on official duty.

On July 18, 2015, Le Thi Nguyet Nga surrendered.

Indictment No. 51, dated September 28, 2015, An Duong District People's Procuracy prosecuted Le Thi Nguyet Nga for the crime of "resisting a person on official duty" under Point b, Clause 2, Article 257 of the Penal Code.

In the judgment No. 50/HSST dated October 22, 2015 of the People's Court of An Duong district, applying point b, clause 2, Article 257, point p, clause 1, clause 2, Article 46; Article 60 of the Penal Code, the defendant Le Thi Nguyet Nga was sentenced to 30 months in prison but suspended. The probation period is 60 months from the date of sentencing.

Apply Article 227 of the Criminal Procedure Code.

Release defendant Le Thi Nguyet Nga immediately at the trial if she is not detained for another crime.

Through a survey in Hai Phong city, the author found that the work of determining the crime of resisting a person on duty by the prosecuting agencies still has some limitations such as: the handling policy from the investigation agency is not drastic, more inclined to handling administrative violations, while the act of resisting a person on duty occurs in reality alarmingly, not only in the field of traffic but also in the field of public security.

information but also in the field of forced land clearance, forced execution of civil judgments according to the Court's decision.

2.4. Current status of applying criminal liability measures for crimes against people performing official duties

The function of adjudicating and convicting criminals belongs to the Court. Based on the results of the investigation and the litigation process at the trial, the Court will decide whether to convict the person who has been prosecuted for the crime of resisting a person on official duty or not. If there is sufficient basis to convict the offender, the Court will issue a verdict of conviction against that person. The verdict of conviction by the Court is the manifestation of criminal responsibility applied to the offender. The implementation of criminal responsibility by the State and the criminal responsibility by the offender only begins when the Court's verdict of conviction against the defendant comes into legal effect.

The time when the Court's judgment of guilt becomes legally effective is the time when criminal responsibility begins to be carried out, the offender is officially criminally responsible before the State, officially "considered guilty". If there are no special reasons, the offender will have to serve the entire sentence decided by the Court in the judgment of guilt.

In case the Court determines that the prosecuted person has committed an act that satisfies the signs of the criminal composition prescribed by the Criminal Law but there is a basis to exempt the offender from criminal liability according to the provisions of Article 25 of the 1999 Penal Code, the Trial Panel will not issue a verdict of conviction but declare the offender exempt from criminal liability.

Unlike a person exempted from criminal liability, if the offender meets the conditions for the Trial Council to exempt the penalty according to Article 54 of the 1999 Penal Code, the offender must still bear criminal responsibility and be condemned by the State, which the Court - Trial Council, on behalf of, declares before the trial. However, after the Court's verdict becomes legally effective, the criminal responsibility of the person exempted from the penalty also ends, according to the provisions of Article 64 of the 1999 Penal Code, the person exempted from the penalty will automatically have his/her criminal record erased without having to go through any period of time.

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