have those things
In practice, there are also cases where criminals appropriate other people's property and sell it for money to spend. When the victim does not claim compensation for damages at trial, this money is also considered property obtained through crime and is also confiscated into the State budget.
2.1.4. Regulations on identifying and handling items banned from circulation by the state
a) Identify items that are prohibited from circulation by the State:
The list of items prohibited from circulation by the State is specified in List 1 of prohibited goods and prohibited commercial services (Issued together with Decree No. 11/1999/ND-CP dated March 3, 1999 of the Government). Items prohibited from circulation by the State include:
- Weapons, ammunition, military uniforms, military equipment and specialized technical means of the armed forces.
- Drugs.
- Some chemicals are highly toxic.
- Artifacts belonging to historical, cultural and museum relics.
- Cultural products that are reactionary, depraved, superstitious or harmful to personality education.
- Cigarettes produced abroad.
- Fireworks.
- Medicines for preventing and treating diseases for humans and livestock, pesticides and medical equipment and instruments not yet permitted for use in Vietnam.
- Wild plants and animals listed in international conventions to which Vietnam is a signatory and other rare animals and plants that need protection.
- Some children's toys are harmful to children's personality education, health or to social security, order and safety [16].
b) Handling of State-owned items banned from circulation:
According to the provisions of Article 41 of the 1999 Penal Code and Article 76 of the 2003 Criminal Procedure Code, the handling of objects prohibited from circulation by the State is as follows:
- Objects that are prohibited from circulation by the State, whether directly related or unrelated to crimes, will be confiscated and destroyed, regardless of who owns them, if they have no value or if not destroyed, will cause harm to society, for example: drugs, obscene cultural products, documents with reactionary content...
- For items that are prohibited by the State from circulation but have value such as military weapons or prohibited goods, which are natural products such as rare wild animals, rare plants, etc., of course we cannot confiscate and destroy them. Currently, according to current legal regulations, we must confiscate them to the State budget and must comply with the legal regulations on the corresponding management of such goods. For example, for military weapons, we must comply with Decree No. 94/HDBT dated July 2, 1994 of the Council of Ministers (now the Government)...
- For objects that are assets of a type prohibited by the State from circulation and appropriated by criminals, then bought and resold, but
If the recovered property is returned, in addition to returning, compensating or confiscating the property, the money used for each illegal purchase and sale (including that of the appropriator) shall be confiscated and transferred to the State budget according to the provisions of Point a or Point b, Article 41 of the Penal Code. To avoid double collection, each purchase and sale shall be confiscated only once from the seller (if the buyer has paid) or from the buyer (if the buyer has not paid).
2.2. PRACTICAL APPLICATION OF CONFISCATION OF PROPERTIES AND MONEY DIRECTLY RELATED TO CRIMES - PROBLEMS AND LIMITATIONS
In order to have a practical basis for comprehensively assessing the advantages as well as the shortcomings and inadequacies in the provisions of criminal law on the measure of confiscation of objects and money directly related to crimes, thereby proposing feasible solutions to improve this measure, it is necessary to research, summarize and evaluate the situation of its application in the practice of trials of courts at all levels.
Research on the practical application of the measure of confiscation of objects and money directly related to crimes shows that criminal statistics on the application of each judicial measure are not available and cannot be compiled due to the detail and the cost of time and human resources. Therefore, it is only possible to analyze through the method of investigating typical cases to have objective and complete comments on the practical application of the measure of confiscation of objects and money directly related to crimes.
The data used for the study include: Statistics on first-instance criminal cases of the Supreme People's Court and the Supreme People's Procuracy; Work reports of the Court sector from 2006 to 2012; 200 criminal judgments.
of Ninh Binh Provincial People's Court were randomly collected from 2006 to 2012.
Table 2.1: Statistics of first instance trials of Courts at all levels from 2006 to 2012
Year
Number of cases tried | Number of defendants tried | |
2006 | 55,841 | 89,839 |
2007 | 55,763 | 92,954 |
2008 | 58,927 | 99,688 |
2009 | 59,092 | 100,015 |
2010 | 52,595 | 88,147 |
2011 | 60,925 | 101,744 |
2012 | 67,369 | 112,506 |
Total: | 410,512 | 684,893 |
Maybe you are interested!
-
General Issues Regarding Punishments and Judicial Measures Applicable to Juvenile Offenders -
Penalties and Judicial Measures Applied to Minors Who Commit Crimes According to the Provisions of the 1999 Penal Code -
Judicial educational measures at communes, wards and towns for juvenile offenders in Vietnam's Criminal Law - 2 -
Practical Application of Inspection and Examination Measures; Handling of Import Tax Obligations Violations and Compulsory Compensation for Damages -
Judicial measures - Return of property, repair or compensation for damages under the Penal Code 1999 - 14
[Source: Supreme People's Court and Supreme People's Procuracy]
According to statistics on the situation of first instance trials from 2006 to 2012 of the Courts at all levels nationwide, in the period from 2006 to 2012, the Courts at all levels tried 410,512 cases and 684,893 defendants. On average, each year nearly 58,644 cases and 97,841 defendants were tried. The difference between the number of cases and the number of defendants is 66.83%, meaning that for every 100 cases, nearly 167 defendants were tried at first instance (see Table 2.1).
Analysis and comparison of the results of first instance trials from 2006 to 2012 show that the total number of cases and defendants tried at first instance increased gradually from 2006 to 2009, decreased in 2010, but increased sharply in 2011 and 2012. If in 2006, the Courts at all levels tried 56,138 cases at first instance,
91,379 defendants, by 2012, the total number of first-instance cases had reached 67,369 cases, with 112,506 defendants. If the ratio of the number of cases and the number of defendants tried at first instance in 2006 was 100%, then in 2012, the ratio of first-instance cases was up to more than 120% and the ratio of defendants tried at first instance increased to more than 123%.
In 2010, the total number of cases tried at first instance decreased by 6,497 cases, or 89% compared to 2009; the total number of defendants tried at first instance also decreased by 11,868 defendants, or 88% compared to 2009. However, by 2011, the total number of cases tried at first instance increased by 8,330 cases, or 116% compared to 2010; the total number of defendants tried at first instance also increased by 13,597 defendants, or 115% compared to 2010. And by 2012, the total number of cases and defendants tried at first instance nationwide continued to increase, although the increase was not as fast as the period from 2010 to 2011, but it was still an alarming number.
However, in the above documents and data of the Supreme People's Court, the frequency of using the measure of confiscation of objects and money directly related to crimes in practice, the positive points as well as the specific shortcomings and difficulties in the practical application of this judicial measure. Therefore, through the method of investigating typical cases, the author of the thesis has studied practical judgments (200 judgments in Ninh Binh province from 2006 to 2012) and obtained the following results:
Of the 200 cases, 173 cases applied judicial measures of confiscation of objects and money directly related to crimes specified in Article 41 of the 1999 Penal Code.
Table 2.2: Crimes, number of cases, number of defendants and ratio compared to total 173
The first instance case of the Ninh Binh Provincial Criminal Court applied the measure of confiscation of objects and money directly related to the crime.
Thing
Number of cases | Number of defendants | Rate on total 173 case | |
Article 133 | 23 | 49 | 39.79 % |
Thing | Number of cases | Number of defendants | Rate on total 173 case |
Article 133 | 23 | 49 | 39.79 % |
Article 136 | 37 | 79 | 64.01 % |
Article 138 | 42 | 86 | 72.66 % |
Article 194 | 16 | 39 | 27.68 % |
Article 248 | 23 | 87 | 39.79 % |
Article 250 | 19 | 19 | 32.87 % |
Article 255 | 13 | 28 | 22.49 % |
[Source: Criminal Court of Ninh Binh Provincial People's Court]
Thus, through studying table 2.2, we have some general comments as follows:
Firstly , the proportion of judgments applying the measure of confiscation of objects and money directly related to crimes in the total number of criminal cases is very large. Specifically, out of a total of 200 cases, there are 173 cases applying this measure, accounting for 86.5%.
Second , the measure of confiscation of objects and money directly related to crimes is mainly applied to:
- Crimes against property.
- Drug crimes.
- Crimes against public safety and public order.
2.2.1. Practical application and shortcomings and limitations
in the confiscation of tools and means used in committing crimes
a) Practical application and existing problems and limitations in determining tools and means used to commit crimes:
The handling (confiscation or return) of means and tools used by the defendant to commit crimes by competent authorities is still confusing because there are many different understandings of the concept of "tools and means of committing crimes".
For example, in the case of Pham Tien Dung driving a motorbike carrying two friends carrying a machete and an iron pipe to beat a person, causing the victim to suffer a disability of 65.7%. At the first instance trial, the Court sentenced Dung to 6 years in prison for intentionally causing injury. In the part of handling evidence, the court determined that the motorbike registered in Dung's name was the vehicle the defendants used to find the victim to cause injury, but was not the means or direct tool to commit the crime. On the other hand, the defendants also have civil liability, so the defendant's motorbike was temporarily detained to ensure execution of the sentence.
However, the Procuracy argued that Dung used his motorbike to transport the defendants to beat people, so the motorbike was determined to be the means used to commit the crime. According to regulations, the tools and means used by the defendant to commit the crime must be confiscated and turned over to the state budget. The Court's decision to continue to temporarily detain the defendant Dung's motorbike to ensure execution of the sentence is not in accordance with the law [52].
Why is there such inconsistency in the application of the law? It is because the law is unclear and also
There is no written guidance on this issue.
Point a, Clause 1, Article 41 of the 1999 Penal Code stipulates: confiscation for the state budget of tools and means used for committing crimes. However, there is no guidance on what constitutes tools and means used for committing crimes, so there are still many different ways of applying them.
- First point of view: Only consider tools and means used to commit crimes when the offender directly uses those tools and means to commit the crime (for example: knife to stab, gun to shoot the victim...).
According to this point of view, in the case of a criminal riding a motorbike to rob or snatch property, is that motorbike considered a tool or means of committing a crime?
- Second viewpoint: Any tool or means used by the offender during the process of committing the crime must be considered a tool or means of committing the crime, including tools that support the commission of the crime such as knives, guns, sticks, poison, bombs, mines, etc. and various means such as means of transportation (cars, motorbikes, etc.), means of communication (walkie-talkies, telephones, etc.) [25, p. 111].
- Third viewpoint: Only tools and means used specifically for committing crimes are considered tools and means of committing crimes (for example: motorbikes used to transport contraband or prohibited goods... but if the offender uses that vehicle as a means of transportation every day, but only on that day is it used to transport contraband or prohibited goods, then that vehicle is not considered a means of committing crimes).