Practice of Trial of Property Theft Crime in Quang Nam Province

The two main types are direct single causality and direct double causality. In the case of theft of property caused by only one criminal, it is a direct single causality relationship. In the case of many people participating in the crime, the relationship is a direct double causality relationship [17, p. 77].

The signs of tools, means, time, place and circumstances of the crime  are not mandatory signs in the composition of the crime. However, determining these signs is also important in the process of investigation, prosecution and trial. Because these signs contribute to determining the nature and level of danger to society of the criminal act, and also through that help us determine the causes and conditions of crime in order to find effective solutions for the fight against crime.

3) Subject of property theft crime

The subject of a crime is a person who is at fault in committing a socially dangerous act prohibited by criminal law, has criminal liability capacity and is of the age of criminal liability as prescribed by law. The legal basis for determining the subject of the crime of Theft of property is Article 2, Article 8, Article 12, Article 13, Article 138 of the 1999 Penal Code.

For the crime of property theft, the subject of the crime is similar to that of other crimes against property. However, offenders from 14 to under 16 years old are not criminally responsible for the crime of property theft in the cases prescribed in Clause 1 and Clause 2, Article 138 of the Penal Code, because Clause 1, Article 138 of the Penal Code is a less serious crime and Clause 2, Article 138 of the Penal Code is a serious crime, while according to the provisions of Clause 2, Article 12 of the Penal Code, persons from 14 years old and above, but under 16 years old, are only criminally responsible for very serious crimes committed intentionally and especially serious crimes. Therefore, the agencies conducting the proceedings, the persons conducting the proceedings in the process of investigation, prosecution, and trial of offenders who openly appropriate property

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When appropriating property, it is necessary to pay attention to the age of the offender and the circumstances determining the penalty. If the offender falls under the cases specified in Clauses 3 and 4, Article 138 of the Penal Code, it is only necessary to determine that the offender is 14 years old to be criminally responsible, but if it falls under the cases specified in Clauses 1 and 2, Article 138 of the Penal Code, the offender must be 16 years old to be criminally responsible [27, p. 117].

4) Subjective aspect of property theft crime

The subjective aspect of a crime is the inner aspect of the crime, the psychological state of the subject when committing a crime, including signs of guilt, motives for the crime and purposes of the crime [54, p. 99].

The subjective aspect includes fault (intentional or unintentional), motive and purpose of the crime. The subjective aspect reflects the connection between the offender's consciousness and will towards the socially dangerous act that he/she performs.

The fault of the person committing the crime of theft is direct intentional fault and is a mandatory sign. The offender is fully aware that his criminal act is dangerous to society, foresees the dangerous consequences that may occur but desires the consequences to occur, desires to appropriate the property.

The purpose of the person committing the crime of theft is to appropriate the property. The person committing the crime has the intention to appropriate the property of another person. It can be said that the purpose of appropriating the property is a mandatory sign of the crime of theft.

In addition, we must also mention the motive for the crime, which is the internal motivation that drives the offender to commit the crime. The motive for the crime of theft of property is the motive of profit, but that is not a mandatory sign in the composition of the crime of theft of property.

2.1.2. Penalties

Article 138 of the Penal Code stipulates four penalty frameworks, including basic framework and aggravated framework. These penalties are specifically as follows:

1) The basic framework stipulates:

Anyone who steals another person's property worth from two million VND to less than fifty million VND, or less than two million VND but causing serious consequences, or has been administratively sanctioned for appropriation or has been convicted of appropriation of property, and has not had his/her criminal record expunged, but continues to commit the crime, shall be subject to non-custodial reform for up to three years or imprisonment from six months to three years.

2) The first aggravating bracket has a prison sentence of 2 to 7 years with the following framing circumstances:

a) Organized:

Organized theft is a form of complicity involving close collusion between those who commit the crime. Among them, there are organizers, perpetrators, instigators, and accomplices. These people all commit covert acts to intentionally appropriate property.

b) Professional in nature: according to the guidance in Resolution No. 01, the circumstance of "professional crime" is only applied when all of the following conditions are met:

- Intentionally committing a crime five times or more for the same crime, regardless of whether or not the person has been prosecuted for criminal liability, if the statute of limitations for criminal liability has not expired or the criminal record has not been cleared;

- Criminals make a living from their crimes and use the results of their crimes as their main source of income.

c) Dangerous recidivism:

This crime case is completely similar to all other dangerous recidivism cases, it is only necessary to determine that the offender has all the signs specified in Clause 2, Article 49 of the Penal Code.

1999. This is a personal circumstance of the offender, not depending on the specific criminal act of this crime or another crime. That is, the offender has been sentenced to prison for a very serious crime, an especially serious crime due to intentional fault, has not had his criminal record expunged, but has committed the crime of theft of property with aggravating circumstances (constituting an aggravating circumstance) or has re-offended, has not had his criminal record expunged, but has committed the crime of theft of property.

d) Using dangerous tricks:

Using cunning tricks when committing theft means that the offender has tricks and deceitful, sinister methods that make it difficult for the victim and others to anticipate and take precautions [27, p. 124].

Using dangerous tricks to commit property theft is a case where the offender has used tricks that endanger the life and health of the owner or manager of the property such as: Using chemicals or pesticides, rat poison poured into ponds and lakes to steal dead fish floating, polluting clean water sources, endangering the lives and health of many people [27, p.124].

d) Assault to escape:

According to the instruction to create TTLT No. 02, assault to escape is a case where the offender has not yet appropriated property or has appropriated property, but is discovered and arrested or surrounded and arrested, then has acts of resistance against the arrester or the person surrounding and arresting such as hitting, slashing, shooting, pushing... in order to escape.

e) Appropriation of property worth from fifty million VND to less than two hundred million VND

g) Causing serious consequences: according to the guidance in Circular No. 02, the offender falls into one of the following cases:

- Kill a person;

- Causing injury or damage to the health of one to two people with a disability rate of 61% or more for each person;

- Causing injury or damage to the health of three to four people with each person's disability rate from 31% to 60%;

- Causing injury or damage to the health of many people with the total disability rate of all these people from 61% to 100%, if not falling under the cases guided in points a.2 and a.3 of Circular 02/2001.

- Causing injury or damage to the health of many people with a total disability rate of 31% to 60% and also causing property damage worth from 30 million VND to less than 50 million VND;

- Causing property damage worth from 50 million VND to under 500 million VND.

3) The second aggravating frame has a prison sentence of 7 to 15 years including the following framing circumstances:

a) Appropriation of property worth from two hundred million dong to less than five hundred million dong: the determination of property value is based on market price at the time of the crime. In case the prosecuting agencies cannot determine the property value themselves, they must request an appraisal (valuation).

b) Causing very serious consequences: according to the instructions in Circular No. 02, if one of the following cases occurs:

- Killed two people;

- Causing injury or damage to the health of three to four people with each person's disability rate from 61% or more;

- Causing injury or damage to the health of five to seven people with each person's disability rate from 31% to 60%;

- Causing injury or damage to the health of many people with a total disability rate of all these people from 101% to 200%, if not falling under one of the cases guided in points b.2 and b.3 of Circular No. 02;

- Causing property damage worth from 500 million VND to less than one billion five hundred million VND;

- Causing damage to life, health and property with consequences falling under two to three points from point a.1 to point a.6, sub-section 3.4 of Circular No. 02 above.

4) The third aggravating bracket has a prison sentence of twelve to twenty years or life imprisonment:

a) Appropriation of property worth five hundred million VND or more:

As in other similar cases, the determination of property value is based on the market price at the time of the crime, because criminal liability is the responsibility of a person when committing a crime. In cases where the prosecuting agencies cannot determine the value of the property themselves, they must request an appraisal (valuation).

b) Causing particularly serious consequences: according to Circular No. 02, if one of the following cases occurs, it is considered causing particularly serious consequences:

- Causing the death of three or more people;

- Causing injury or damage to the health of five or more people with a disability rate of 61% or more for each person;

Causing injury or damage to the health of eight or more people with each person's disability rate from 31% to 60%;

- Causing injury or damage to the health of many people with a total disability rate of all these people from 201% or more, if not falling under one of the cases guided in points c.2 and c.3 of Circular No. 02.

- Causing property damage worth one billion five hundred million dong or more;

- Causing damage to life, health and property with consequences falling under four or more points from point a.1 to point a.6, sub-section 3.4 of Circular No. 02;

- Causing damage to life, health and property with consequences falling under two or more points from point b.1 to point b.6, sub-section 3.4 of Circular No. 02

5) Additional penalties for persons committing theft of property:

Additional punishment is a coercive measure of the State aimed at educating, reforming and preventing convicted persons from committing new crimes. It also consolidates the results of the main punishment to enhance the effectiveness of the punishment applied to the offender.

According to the provisions of Clause 5, Article 138 of the 1999 Penal Code, in addition to the main penalty, a person who commits the crime of property theft may also be fined from five million to fifty million VND.

2.2. Practice of trying property theft crimes in Quang Nam province

2.2.1. General overview of the political, economic, cultural, social situation... in Quang Nam province

Quang Nam is located in the Central region of Vietnam, 860 km north of Hanoi and 865 km south of Ho Chi Minh City. The north borders Thua Thien Hue province and Da Nang city; the south borders Quang Ngai province and Kon Tum province; the west borders Sekong province; the east borders the East Sea. Quang Nam has 13 districts, 2 cities and 1 town, including 08 mountainous districts: Dong Giang, Tay Giang, Nam Giang, Nam Tra My, Bac Tra My, Phuoc Son, Hiep Duc and Tien Phuoc. With an area of 10,440 km 2 and a population of over

1.4 million people (2014), Quang Nam ranks 6th in area and 19th in population

among 63 provinces and cities of Vietnam. The average population density is 140 people/km2 ( ranked 45/63) compared to 271 people/km2 of the whole country. Quang Nam is located in the middle of the country, on the North-South traffic axis of railway, road, sea and air routes, with Ho Chi Minh road, National Highway 14D, 14B, 14E connecting the coastal plain through the midland and mountainous districts of the province to the Vietnam-Laos border and the Central Highlands provinces; in the near future, it will connect with the Trans-Asian road system, creating a favorable position for the province in economic exchange with the outside. Moreover, Quang Nam is located between Da Nang city

(The major economic center of the Central region) and the Chu Lai Dung Quat industrial service development area, this is an area being formed and developed in the South. Ky Ha port, Chu Lai airport, along with a large coastal sandy land area, near the national power grid system, with abundant fresh water resources, near the road and railway traffic axis, creating favorable conditions for the formation of industrial parks, tourism services, and new urban areas. From a predominantly agricultural economy, Quang Nam is striving to develop industry, small-scale industry and services. Industrial parks and craft villages are gradually forming and going into production. Quang Nam is a land known as "Ngu Phung Te Phi" (there are 5 people from the same village, and all passed the doctoral exam and were awarded the four words "Ngu Phung Te Phi" by the king), a land of studiousness and still preserving many customs and practices imbued with the culture of different ethnic groups.

In the context of a poor province, having just separated from the old Quang Nam Da Nang province (separated in 1997) and facing many difficulties, Quang Nam still maintains stability and develops in politics, economy, culture and society. The annual growth rate is quite high, internal strength is initially aroused and promoted. People's lives are generally improved, security, politics and social order and safety are maintained. Although the socio-economic situation in 2014 still faces many difficulties, there have been changes and achieved positive results, specifically as follows:

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