Provisions on Judicial Measures of "Returning Property, Repairing or Compensating for Damages" in the 1999 Penal Code

July 1979, effective from January 1, 1980. To meet the requirements of fighting and preventing crime in the new situation, in March 1997, at the 5th session, the 8th National People's Congress discussed and amended the 1979 Penal Code, effective from October 1, 1997. Since then, this Penal Code has been amended and supplemented 5 times; the most recent amendment and supplement was on February 28, 2005 at the 14th Conference of the Standing Committee of the 10th National People's Congress.

Criminal coercive measures are stipulated in the General Part of the Penal Code of the People's Republic of China, specifically in Chapter III - Punishment and Chapter IV - Application of Punishment. However, as the Penal Code of the Russian Federation introduced above, in the Penal Code of the People's Republic of China, the system of criminal coercive measures does not have any provisions called "judicial measures" like the Vietnamese criminal law; but there are similar provisions.

Article 36, Section 1, Chapter III - Penalties stipulates: "If the crime also causes economic damage, in addition to sanctions according to criminal law, it is also necessary to base on specific circumstances to force the offender to compensate for economic damage" [17].

In addition, this Code also stipulates that compensation for the victim is given priority in cases where the offender is liable for civil compensation and is also fined. If their entire assets are not enough to pay or their assets are confiscated, priority must be given to civil compensation for the victim first.

Section 1, Chapter IV - Application of penalties, in addition to the provisions on the basis for deciding penalties (Article 61) and the principles when deciding penalties (Articles 62, 63), Article 64 has provisions on resolving issues related to the property of the victim that has been appropriated as follows: "All illegal properties of the offender must be handed over or required to be reimbursed. The legitimate property of the victim must be returned immediately..." [17].

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Thus, in terms of form, the content of the provisions on returning property and compensating for damages to victims is not specified as a separate component but is specified as content in the penalty and application of the penalty, although Articles 32, 33, 34, Section 1, Chapter III, which stipulate the types of penalties including main penalties and additional penalties, do not mention returning property to victims or compensating for damages as a type of penalty.

In addition, we will learn about the regulations on this issue in the Criminal Procedure Code of the People's Republic of China.

The Criminal Procedure Law of the People's Republic of China was adopted at the second session of the 5th National People's Congress on July 1, 1979 and took effect from January 1, 1980. In 1996, this Law was amended and supplemented at the fourth session of the 8th National People's Congress on March 17, 1996 and has taken effect from January 1, 1997 to present.

The issue of compensation for damages to victims is defined by the Criminal Law of the People's Republic of China as a civil matter, so the Criminal Procedure Code of this country has a separate chapter regulating civil lawsuits - Chapter VII - General provisions. Specifically:

Article 77 stipulates: " The victim who suffers material damage caused by the defendant's criminal act has the right to request civil compensation during the criminal proceedings" [17].

Article 78 stipulates: "A civil lawsuit must be tried at the same time as a criminal case. In case it is necessary to avoid prolonging the trial of a criminal case, after trying the criminal part, the Court will continue to consider the civil request" [17].

It can be seen that civil matters can be resolved simultaneously with criminal cases or can be separated and resolved later if the case is likely to be overdue for adjournment.

Unlike the provisions of the Criminal Procedure Code of the Russian Federation and the Criminal Procedure Code of Vietnam, the issue of handling the victim's property is regulated in the chapter on evidence, the Criminal Procedure Code of the People's Republic of China, this content is regulated in Article 198, Chapter III - Appeal procedures, Part Three - Trial.

The police, the People's Procuracy and the People's Court must manage the assets and valuables of suspects and defendants, as well as the profits arising from them, which they have seized or frozen for investigation. No organization or individual is allowed to embezzle or dispose of such assets without permission. The legitimate assets of the victims must be returned to them immediately. Prohibited and perishable items must be handled according to relevant state regulations.

Also according to this Article, any judicial officer who embezzles, misappropriates or illegally handles frozen or seized money and assets as well as profits arising therefrom shall be prosecuted according to law; if the act does not constitute a crime, he/she shall be subject to administrative sanctions.

Thus, it can be understood that the legitimate assets of the victims are returned to them immediately during the investigation phase.

Through the analysis of the above provisions, we can see that although Chinese criminal law does not stipulate that the offender must return the appropriated property to the owner or compensate for damages as a judicial measure in the system of criminal enforcement measures, there are provisions on the Court's decision to return the appropriated property to the owner or compensate for damages to the victim, similar to Vietnamese criminal law.

Chapter 2

PROVISIONS ON JUDICIAL MEASURES

"RETURN OF PROPERTY, REPAIR OR COMPENSATION FOR DAMAGES" IN THE 1999 CRIMINAL CODE AND ITS PRACTICE IN THAI BINH PROVINCE

2.1. PROVISIONS ON JUDICIAL MEASURES OF "RETURN OF PROPERTY, REPAIR OR COMPENSATION FOR DAMAGES" IN THE 1999 CRIMINAL CODE

The measure of "Returning property, repairing or compensating for damages" is essentially a type of civil liability resolved in criminal cases and its regulation is completely consistent with the legal policy of our State.

2.1.1. General provisions

The 1985 Penal Code, after a period of practical application, has encountered some limitations, so the need for amendment is necessary. One of the reasons for amending and supplementing the 1985 Penal Code is determined: To some extent, social relations before the renovation period in our country were products of infrastructure born from a bureaucratic-administrative and subsidized economy, conservative and stagnant, so when switching to a market mechanism, it did not meet the needs of social practice in general and legal practice in particular (including criminal law). Therefore, it is completely reasonable to carry out the innovation of criminal law - amending the 1985 Penal Code to suit the new social relations that will be formed [8, p. 61].

The National Assembly's official approval of the 1999 Penal Code has met the above requirements. The new Penal Code is the result of the second codification process based on the inheritance of the system of principles and regulations that have been practically applied in the 1985 Penal Code, while at the same time being amended, supplemented, enhanced and developed to make the regulations suitable.

Article 42 of the 1999 Penal Code essentially stipulates two measures: the measure of "Returning property, repairing or compensating for damages" and the measure of "Forcing a public apology". Within the scope of this thesis, we only study the measure of "Returning property, repairing or compensating for damages" according to Clause 1, Article 42.

Article 42: Return of property, repair or compensation for damage; forced public apology.

1. The offender must return the appropriated property to the owner or legal manager, and must repair or compensate for material damage determined to have been caused by the crime.

2. In case of a crime causing mental damage, the Court shall force the offender to pay material compensation and publicly apologize to the victim [27].

This is one of the measures to support punishment, not only to prevent criminals from committing new crimes but also to protect the legitimate ownership of the owner as well as to protect other human rights. In every criminal case, there is a certain subject that is violated and whose social relations are broken; if the criminal law only stops at punishing the criminal through a certain punishment, it is not enough, it cannot make people "convinced" because what the crime causes is a damaging impact on other subjects. Therefore, for the law to truly reach people's hearts and be truly fair, in addition to the fact that the criminal must be punished, the damaged subjects must be compensated for the losses they have suffered.

Pursuant to Article 74 of the 2003 Criminal Procedure Code, the definition of physical evidence is: "Physical evidence is an object used as a tool or means to commit a crime; an object bearing traces of a crime, an object that is the subject of a crime, as well as money and valuable materials that prove the crime and the offender" [28], it can be seen that the assets that must be returned according to the provisions of Article 42 of the 1999 Criminal Procedure Code are one of the physical evidences of a criminal case - the object that is the subject of a crime and the handling thereof.

They are one of the ways of handling evidence as prescribed in Clause 2, Article 76 of the 2003 Criminal Procedure Code.

The following are general provisions on the measure "Returning property, repairing or compensating for damages" in our country's criminal law regarding the subject, scope and applicable objects.

* Regarding the subject of application: The agencies conducting the proceedings (Investigation Agency, Procuracy and Court) have the right to decide to apply this judicial measure at each stage of the proceedings without having to have separate conditions for application.

According to the provisions of Clause 1, Article 76 of the 2003 Criminal Procedure Code: "The handling of evidence is decided by the Investigation Agency if the case is suspended at the investigation stage; decided by the Procuracy if the case is suspended at the prosecution stage; decided by the Court or Trial Panel at the trial stage..." [28].

In addition, Clause 3, Article 76 of the 2003 Criminal Procedure Code stipulates: "During the investigation, prosecution and trial, the competent authority specified in Clause 1 of this Article has the right to decide to return the evidence specified in Point b, Clause 2 of this Article to the owner or legal manager, if it is deemed not to affect the handling of the case" [28].

In which, according to the provisions of Point b, Clause 2, Article 76 of the Criminal Procedure Code, one of the options for handling evidence is:

Material evidence is objects and money owned by the State, organizations, or individuals that are appropriated by criminals or used as tools or means to commit crimes, which must be returned to the owner or legal manager; in cases where the owner or legal manager cannot be identified, they must be transferred to the State budget [28].

Thus, according to the above regulations, not all evidence can be processed before the opening of the trial, except in the case of a suspended case, the decision on which stage of the proceedings to suspend the case will be made by the prosecuting agency. Specifically: in the case of a suspended case at the investigation stage, the investigating agency has the right to issue

The decision to handle evidence and the case is suspended at the prosecution stage, the Procuracy has the right and will be decided by the Court if the case is suspended at the trial stage when there is no decision to bring the case to trial and will be decided by the Trial Panel when the case is suspended at the trial. This type of evidence can include tools and means of committing a crime (for example: the motorbike used by the offender as a means of committing the act of robbery; the lock-breaking tool used by the offender to break the door lock to enter the house to commit the act of theft of property...), in addition to objects prohibited by the State from circulation (for example: drugs, explosives,...), money or other assets obtained from the crime (for example: A sells drugs to B for

100,000 VND is later arrested, then this amount is determined to be money from crime...). In addition, there are a number of other evidences stipulated in Clause 2, Article 76 of the Criminal Procedure Code that are also included in this case.

However, there are types of evidence that all prosecuting agencies have the right to handle according to Article 42 of the 1999 Penal Code, returning them to the owner or legal manager without having to make a decision to suspend the case. These are the types of evidence specified in Point b, Clause 2, Article 76 of the 2003 Criminal Procedure Code (cited above).

The following are some real-life examples in Thai Binh province where the prosecuting agencies have carried out "Property Return" to the legal owner or manager.

Example of the investigation agency returning property: On August 25, 2009, taking advantage of the quiet noon, when Vu Khac Hieu's family was at work and only an old man was sleeping in the room, Pham Van Tuan broke into the house and took a motorbike, a TV and a DVD player. Pham Van Tuan was arrested while selling the above property. After verification, the investigation agency returned the above property to Vu Khac Hieu.

Example of the Procuracy returning property: Do Duc Hung committed three acts of robbery, at the prosecution stage the Procuracy determined the owner.

The owner of the mobile phone was the property that Hung robbed on the second occasion. The Procuracy decided to return the property to the owner, Ms. Nguyen Thi Oanh.

Example of the Court returning property: Nguyen Thuy Linh (aka Tham) went to her boyfriend's house in Thai Thuong commune, Thai Thuy district to visit, and was asked by her neighbor, Doan Vu Hau, to look after her children while she went to the fields. Linh saw that there were two motorbikes left at home, so she had the intention of stealing property; after finding the motorbike keys in the cupboard, Linh took the Novo YAMAHA motorbike and drove to Hung Yen. When she reached Hung Ha town, she caused a traffic accident, so her person and motorbike were confiscated. In judgment No. 38/HSST, the People's Court of Thai Thuy district ordered the return of the motorbike to Doan Vu Hau.

The measure of "Returning property, repairing or compensating for damages" is a measure widely used in the proceedings of criminal cases related to crimes of appropriation or crimes against human life, health, honor, dignity and reputation and is one of the ways of handling evidence prescribed in Article 76 of the 2003 Criminal Procedure Code.

It can be seen that the measure of returning seized property to the owner or legal manager is decided by all three agencies conducting the proceedings (Investigation Agency, Procuracy and Court) even when the case is not suspended at each stage of the proceedings.

There are two possible measures for compensation for damages depending on the agreement between the offender and the injured party on the form, method and level of compensation for damages:

Firstly , if the two parties reach an agreement on the entire content of compensation for damages, then depending on whether the agreement is established at the investigation or prosecution stage, it will be decided by the Investigation Agency or the Procuracy (even if the case continues according to the general litigation procedure without being suspended).

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