Provisions of Vietnamese Criminal Procedure Law on Victims

Chapter 1 Summary

In chapter 1 of the thesis, the student has revealed some issues about the victim. The victim is the subject of damage caused by a crime. If the victim is an individual, it is the individual who directly suffers physical, mental and property damage. If the victim is an agency or organization, it is the agency or organization that suffers property and reputation damage caused or threatened by the crime. Based on the concept of the victim, the author of the thesis has revealed the content of the victim and the lack of consistency in the Criminal Procedure Code and the Criminal Code regarding the terms "victim" and "victim". From the concept of the victim, the thesis analyzes the characteristics, position and role of the victim, which is the basis for distinguishing the victim from other participants in the proceedings. Accordingly, the victim is the subject of the victim including individuals, legal entities and organizations; The damage caused by a crime depends on whether the subject of the victim is an individual or an agency or organization. Individuals directly suffer physical, mental, or property damage, while agencies or organizations suffer property or reputation damage. The damage to the victim must be direct damage, and the individual, agency, or organization that suffers damage may only participate in the proceedings as a victim when and only when recognized by the agency conducting the proceedings.

Identifying the correct victim is extremely important, helping the prosecuting agencies to properly implement the provisions of the law in determining crimes, punishments and best protecting the rights of the victim. Therefore, distinguishing the victim from other participants in the proceedings such as the accused, the civil plaintiff, and the person with related rights and obligations is the basis for correctly identifying the victim, helping to resolve the case comprehensively and thoroughly.

Studying theoretical issues on victims in Chapter 1 is the basis for studying legal regulations on victims and assessing the actual status of protecting victims' rights in practice in Chapter 2.

Chapter 2

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REGULATIONS OF CRIMINAL PROCEDURE LAW ON VICTIMS AND PRACTICE OF PROTECTING VICTIMS' RIGHTS IN DONG NAI PROVINCE

2.1. Provisions of Vietnamese criminal procedure law on victims

2.1.1. Identifying the victim in criminal proceedings

Article 62 of the 2015 Criminal Procedure Code stipulates that a victim is an individual who directly suffers physical, mental, or property damage, or an agency or organization that suffers property or reputation damage caused or threatened by a crime. Correctly identifying the victim is important in protecting the rights of the victim and in the fight against crime. In section 1.2, Chapter 1 of the thesis, the student analyzed the characteristics of the victim, accordingly, to identify the victim, it is necessary to rely on the characteristics of the victim. Specifically, to identify the victim in criminal proceedings, the following bases are needed:

First, determine the damage. Damage determined includes: for individuals, it is physical, mental, property damage; for agencies and organizations, it is property and reputation damage caused or threatened to be caused by crime. Damage caused by crime is non-contractual damage, but unlike non-contractual damage stipulated in the Civil Code as actual damage, the damage of the victim in a criminal case includes damage caused or threatened to be caused by crime. That means actual damage is not a mandatory sign of the victim but depends on the composition of the crime. There only needs to be a crime and this crime has the ability to cause damage, not necessarily actual damage. Determining the extent of actual damage only has meaning in compensating for damage, restoring the losses that the victim has to suffer.

Second, there is crime. According to Clause 1, Article 8 of the 2015 Penal Code, a crime is an act dangerous to society as prescribed in the Penal Code, committed intentionally or unintentionally by a person with criminal responsibility or a commercial legal entity, violating the independence, sovereignty, unity, and territorial integrity of the Fatherland, violating the political regime, economic regime, culture, national defense, security, social order and safety, rights and legitimate interests of organizations, violating the rights of

human, rights, and legitimate interests of citizens, infringing on other areas of the socialist legal order that must be criminally prosecuted according to the provisions of the Penal Code. Thus, a crime is an act that is dangerous to society, the subject committing the act must be at fault, violating criminal law and that subject must bear criminal responsibility according to the provisions of the Penal Code. A crime must first of all be an act, without an act there is no crime, and at the same time a crime must be an act that is dangerous to society. The act of a crime is committed by a subject with criminal responsibility capacity. The person who commits an act, even if it is significantly dangerous to society but does not have criminal responsibility capacity to perform it, is not a criminal and is not criminally liable. Acts that violate the law must be regulated in the Penal Code. This regulation aims to ensure the legitimate rights of citizens, avoiding arbitrary suspicion by competent authorities.

Third, having criminal responsibility capacity. Criminal law does not provide the concept of criminal responsibility capacity but only stipulates the state of not having criminal responsibility capacity and the age of criminal responsibility. However, criminal responsibility capacity can be understood as the ability to perceive and the ability to control socially dangerous behavior. A person with criminal responsibility capacity is a person who is at least fourteen years old and is not in a state of not having criminal responsibility capacity.

Fourth, the causal relationship between damage and crime. Illegal acts are the direct cause of damage. Among the characteristics of victims, “direct damage” is a characteristic of victims, the basis for identifying victims and distinguishing victims from other participants in the proceedings. The 2015 Criminal Procedure Code and criminal law documents, Criminal Procedure do not explain what “direct damage” means, but we can understand “direct damage” means damage directly caused by crime, between criminal acts and damage there is a causal relationship. However, Article 62 of the Criminal Procedure Code stipulates that "A victim is an individual who directly suffers physical, mental, or property damage, or an agency or organization whose property or reputation is damaged or threatened by a crime", causing misunderstandings about individuals who directly suffer damage, while the damage to an agency or organization may include indirect or consequential damage.

In other words, there are indirect victims. According to students, such understanding is inappropriate and must be determined as an individual or an agency or organization that is also the direct subject of damage.

In fact, the identification of the status of a participant in the proceedings as a detainee, suspect, or defendant is very clear and easy to identify, but it is very difficult to identify a participant in the proceedings as a victim, civil plaintiff, civil defendant, or person with related rights and obligations in a number of specific cases. There are many cases of wrong identification of the victim and there are many different opinions.

Identifying the victim in cases where there are many victims. In a criminal case, there may be many people committing dangerous acts, or there may be only one person committing a socially dangerous act. Similarly, the victim may be one person or many people, although the damages may be the same or different. In cases where there is only one direct victim, identifying the victim of the case is not a difficult problem, but in cases where there are many victims, there are many different views on determining who is the victim. Because the victim may be mistakenly identified as the civil plaintiff or the person with related rights and obligations.

In reality, there are cases of fraud and appropriation of property in which the prosecuting agency has difficulty in identifying the victim. A specific case is as follows: Ms. A bought bonds from company B worth 300 million VND. C was a consultant for Ms. A. After a period of buying bonds from company B, C forged documents with Ms. A's signature to sign a contract to resell the bonds to company B. Company B paid for the purchase of Ms. A's bonds into Ms. A's account at Bank X. Next, C forged Ms. A's signature to register for Ms. A's electronic banking service (Internet Banking) and withdrew all of the 300 million VND for personal use. After discovering this, Bank X reported C, then Ms. A realized that C had forged the procedures to withdraw her money. A was prosecuted and tried by the prosecuting agency for the crime of fraud and appropriation of property under the provisions of Article 174 of the 2015 Penal Code.

In this case, there are still different opinions on identifying the victim. In the case, Ms. A was the person who spent money to buy bonds worth 300 million VND,

C's actions infringed on Ms. A's ownership rights. Company B bought back Ms. A's bonds and paid 300 million VND to Ms. A into the bank account.

X. C withdrew all 300 million VND from bank X for personal use. There is a view that the victim in this case is Bank X because when A used the trick of creating fake documents to register for Internet Banking service to withdraw Ms. A's money from bank X's account. Bank X did not fully check the documents when using the internet banking service, causing Ms. A to lose 300 million VND. The bank had to return the above amount to Ms. A and then Bank X compensated Ms. A for the amount that C withdrew, which was 300 million VND. Therefore, Bank X is the victim in this case and the damage to Bank X is 300 million VND.

There is a view that Ms. A is the victim because initially, when Ms. A bought bonds from company B, C violated Ms. A's direct ownership of the bonds. Although Ms. A has now recovered 300 million VND, that is only to compensate for the damage, but in reality, Ms. A is the first and direct person to suffer damage due to C's actions.

There is another opinion that it is correct to identify the victim as Company B. Ms. A invested 300 million VND to buy bonds at Company B. The bond purchase and sale transaction established between Ms. A and Company B has been completed. Therefore, according to this established transaction, Company B is the entity that manages Ms. A's investment assets, so Company B must bear all risks arising from the bonds that Ms. A purchased. And Ms. A has the right to request Company B to ensure her rights related to this investment. When Ms. A wants to sell these bonds, she must also fully comply with the procedures and conditions required by Company B. Company B signed a contract and paid for the bond repurchase from Ms. A without checking and verifying all the documents and the bond repurchase contract, but signed a contract and transferred the bond repurchase money to Ms. A's account at Bank X. For the bond purchase transaction, only company B and Ms. A are responsible, and Bank X is not involved in this transaction. Because Company B is the entity responsible for Ms. A's bonds and C's behavior was to trick Company B into buying Ms. A's bonds and Company B spent 300 million VND, in this case, Company B is the victim.

There is a view that Ms. A, Company B and Bank X are all victims. Because C first affected Ms. A's ownership, then committed fraud against Company B, then committed fraud against Bank X to appropriate the above 300 million. Because C directly affected the ownership of all three subjects above, all three subjects above are victims.

According to the student, in this case, it is necessary to identify the victim as Ms. A because in reality, in this case, there is only one damage, which is the amount of 300 million VND that C appropriated, so there cannot be three victims. Ms. A is the owner of this property, so when C, through his actions, infringed on Ms. A's ownership rights, Ms. A is the victim. In the end, Ms. A receives the amount of 300 million VND, which is to restore Ms. A's damage. Bank X is the entity that compensates Ms. A the amount of 300 million VND, so X is the civil plaintiff, and company B is the person with related rights and obligations.

Identify the victim in case the damaged property is legally managed by another person. There are many cases where the property belongs to one person but is legally possessed and used by another person on the basis of a legal civil transaction. If the property is damaged while under the legal management and possession of another person, in this case the owner or the person legally possessing the property is the victim.

In reality, there is a case where A is the owner of a property, a Honda motorbike. A parks the motorbike in B's parking lot and C steals the property. In this case, there are different opinions on whether A or B is the victim. There is a judgment that determines B is the victim, because B is the person who is directly managing and looking after the motorbike (although B does not have the right to dispose of the motorbike), A is only the person with related rights and obligations, because C's behavior is sneaky towards B (the person who is looking after the motorbike), not sneaky towards

A. There is a verdict that A is the victim, because A is the owner of the car and has the right to dispose of the car, B is the person with related rights and obligations because this is a contract for keeping property. The student agrees with the view that B is the victim because suppose, the person who secretly appropriated the car in this case is not C but A (the owner of the car), how will it be handled? In this case, although A is the owner of the car, the car is under the management of B, so A secretly taking the car away also satisfies the signs of the crime of property theft. At this time, A is the accused and B is the victim.

The relationship of the deposit contract is not related to the crime in this case. Therefore, determining who is the victim does not depend on who is the owner of the property but who is the direct subject of the damage. Because if the car is damaged, the person directly damaged is B because B must compensate A for the value of the deposited property. Although the car owned by A is violated, A is not damaged but the person damaged is B.

From the above case, students believe that in cases where the owner and the manager of the damaged property are two different entities, it is necessary to identify the person who is legally managing or keeping the property as the victim in the criminal case because their damage is the subject directly affected by the crime, that is, there is a causal connection between the criminal act and the consequences of the crime, and the owner of the property is the person with rights and obligations related to the case.

In case there is no victim: In principle, there must always be a party causing damage and a party directly suffering damage. However, through research on judgments of crimes against national security (except terrorism), crimes related to positions (such as corruption, bribery, bribery, etc.), escape from detention, failure to report crimes, and gambling, there is no mention of victims. The above crimes violate objects protected by the State but do not directly violate any individuals, agencies, or organizations, so there are no victims. It is also impossible to determine the State as the victim in the above cases because the State is not an agency, organization, or individual mentioned in Article 62 of the Criminal Procedure Code, and the damage in the above crimes is not physical, mental, or reputational, or property of the State. Therefore, in cases of the above crimes, it is not necessary to determine the victim.

For cases where the victim cannot be identified: Unlike crimes that do not require identification of the victim, there are cases where the object and the subject of the crime are property but the victim cannot be identified. In these cases, a criminal case still exists, and the competent state agency still initiates criminal proceedings when it determines that there are signs of a crime. The Criminal Procedure Code also does not stipulate that the case must be suspended when the victim cannot be identified. Therefore,

In specific cases where there are sufficient elements to constitute a crime, the prosecuting agencies will still resolve the case even though the victim cannot be identified.

2.1.2. Age of the victim

The age of the victim is only required for individuals. The age of the victim in some cases is a sign of conviction (crime of rape of a person under 16 years old, crime of rape of a person from 13 years old to under 16 years old, crime of sexual intercourse or other sexual acts with a person from 13 years old to under 16 years old, crime of indecent assault against a person under 16 years old, crime of using a person under 16 years old for pornographic purposes (Articles 142, 144, 145, 146, 147 of the 2015 Penal Code), in some cases is a sign of sentencing (murder of a person under 16 years old (point b, clause 1, Article 123 of the Penal Code, point b, clause 2, Article 127 of the 2015 Penal Code) or a circumstance that increases criminal responsibility (committing a crime against a person under 16 years old, a person 70 years old or older at point i, clause 1, Article 52 of the 2015 Penal Code). The age of the victim can be The victim's physical and mental development, the level of psychological damage and the ability to recover [24]. The victim's age is only significant in determining the crime, determining the penalty or aggravating the criminal liability of the accused when the victim is under 16 years old; for the victim who is 70 years old or older, it is only an aggravating circumstance for the criminal liability of the accused. The victim's age is also the basis for determining the victim's legal representative when participating in the proceedings. For victims from 16 years old to under 70 years old, the victim's age does not affect the nature of the case.

Article 417 of the 2015 Criminal Procedure Code stipulates the determination of the age of the victim. This provision determines the age of both the victim and the accused. Birth certificate, birth certificate, identity card, citizen identification card, household registration book, and passport are the basis for determining age. In case there are no identification documents above or the documents are inconsistent or unclear, the competent person conducting the proceedings must coordinate with the family, school, and Youth Union where the person under 18 years of age studies, works, or lives to clarify the contradiction or collect other documents proving the age of the person under 18 years of age. If the specific date of birth cannot be determined, the date of birth will be used depending on the specific case.

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