Scientific commentary on the criminal code Volume 4 - Dinh Van Que - 2

Growing narcotic substances is the act of growing opium poppy, coca, cannabis or other plants containing narcotic substances, having been educated many times, having been given conditions to stabilize one's life and having been administratively punished for this act but still violating.

Crime of growing opium poppies or other plants containing narcotic substances

The drug crime stipulated in Article 192 of the Penal Code is a crime stipulated in Article 185a of the 1985 Penal Code. The signs constituting the crime in general have not changed much, only the circumstances that have been punished are more clearly specified.

administrative penalty is the punishment for growing opium poppies or other plants

other containing narcotic substances (for this act) and not any other act; additional penalties are prescribed in the article. The article only prescribes the act of planting, but for different types of drugs, so when determining a crime, attention should be paid to:

- If there is an act of growing a plant containing a narcotic substance, the crime is determined according to that narcotic substance. For example: Growing opium plants, the crime is only defined as "growing opium plants", if growing coca plants, the crime is "growing coca plants", if growing cannabis plants, the crime is "growing cannabis plants" and not defined as the law states: "growing opium plants or plants containing narcotic substances". However, there is also a viewpoint that if growing opium plants, the crime is "growing opium plants", but if growing other plants containing narcotic substances, the crime is "growing plants containing narcotic substances" and there is no need to define the crime of growing cannabis plants or growing coca plants. This is also a problem in practical adjudication, so the application is not consistent; some courts define the crime of growing cannabis plants, some courts define the crime of growing other plants containing narcotic substances, and some courts only define the crime of growing plants containing narcotic substances.

- If planting many different types of narcotic plants, then the crime is determined based on the plants containing the narcotic substances. For example: Nguyen Van H has just planted narcotic plants.

opium and cannabis, then H's crime is "crime of growing opium and cannabis".

In terms of legislative technique, the legislator defines the crime as “planting trees”.

opium or other plants containing narcotic substances” is to emphasize the widespread practice of growing opium poppies in our country, and other plants containing narcotic substances are to prevent cases where there is an act of growing other plants containing narcotic substances such as coca plants, cannabis plants, etc. It is only necessary to stipulate the crime of growing plants containing narcotic substances, and it is enough to identify what kind of plant it is, but the law stipulates “the crime of growing opium poppies or other plants containing narcotic substances”, so there is confusion when it comes to determining the crime of growing plants containing narcotic substances that are not opium poppies. Hopefully, when the 1999 Penal Code is amended, this issue will be discussed and decided. In our opinion, it is only necessary to stipulate “the crime of growing plants containing narcotic substances”.

A. BASIC SIGNS OF CRIME

1. Signs belonging to the subject of the crime

Like the subjects of other crimes, the subjects of the crime of growing opium poppies or other plants containing narcotic substances must also ensure necessary and sufficient factors (conditions) such as: age, criminal responsibility capacity.

provisions of Articles 12 and 13 of the Penal Code. However, for the crime of

Cultivation of opium poppies or other plants containing narcotic substances, only the following persons may be the subjects of this crime:

People from 14 to under 16 years old are not criminally responsible for growing opium poppies or other plants containing narcotic substances, because according to Article 12 of the Penal Code, people from 14 to under 16 years old are criminally responsible for very serious crimes.

serious intentional and especially serious crimes. For the crime of planting trees

Opium or other plants containing narcotic substances, paragraph 1 is a less serious crime, paragraph 2 is a serious crime.

In general, the owner

body

of this crime is any, but the subject

weak is

people living in highland areas, where there are conditions to grow opium poppies or other plants containing narcotic substances.

2. Signs of the objective side of the crime

The object of the crime of growing opium poppies or other plants containing narcotic substances is the State's management regime on growing opium poppies or other plants containing narcotic substances. If understood mechanically, it is easy to mistakenly think that the State allows some subjects to grow opium poppies or other plants containing narcotic substances, but in fact it is not so. Up to now, in the documents of our Party and State,

There is no place that stipulates that agencies, organizations or individuals are allowed to grow opium poppies or other plants containing narcotic substances. The fact that opium poppies are still grown in our country today is due to the long-standing tradition of some ethnic minorities in the highlands. Now our Party and State have policies to encourage people to give up growing opium poppies and have policies to support people to switch to growing food crops, fruit trees and

other plants, not re-planning medicinal plant cultivation

opium. So when we talk about the regime

State management of

tree planting

Opium or other plants containing narcotic substances is a State policy to eliminate the cultivation of opium or other plants containing narcotic substances.

The objects of this crime are plants containing narcotic substances such as opium, coca, cannabis...

Opium poppy is also known as Opium, Poppy, and its real name is Papaver Somniferum L. There are more than one hundred species of the genus Papaver, but only two are capable of producing Morphine, which are Papaver.

Somniferum and Papaver setigerum DC Opium poppies grow in the

The Mediterranean since 300 BC and then gradually grown in some countries in the world in the Golden Crescent and Golden Triangle regions. In our country, opium poppy is mainly grown in the provinces: Son La, Lao Cai, Nghe An, Lai Chau, Ha Giang, Thanh Hoa, Yen Bai, Hoa Binh, Cao Bang1.

The coca plant, whose Latin name is Erythroxylon norogranatense, is native to South America. Cocarine is a natural substance extracted from the coca plant.2

Cannabis (cannabis) is a plant with the Latin name Canabissativa L. Cannabis can grow in high temperature climates, tropical monsoon regions of South America, the Carribians, Africa, South Asia, Southeast Asia.3

Coca and marijuana plants are almost never grown in our country, perhaps that is why lawmakers only regulate the crime of growing opium poppies, and the regulation of other plants containing narcotic substances is to prevent criminals from getting away with growing coca or marijuana plants in places where they do.

Besides opium, coca and cannabis plants which are being grown in countries around the world and in our country, there is no document showing that there are other plants containing narcotic substances. However, the law still stipulates that

Other plants contain narcotics that have not yet been discovered by science.

prevent cases where

1 See Vu Ngoc Bung "drugs" People's Police Publishing House, 1994. Page 8.

2 Books cited p.58

3 Books cited p. 47

3. Objective signs of crime

a. Objective behavior.

The offender cultivates opium poppies or other plants containing

It must be an action and is expressed in many different forms such as: tilling the land, sowing seeds, nurturing plants, and fertilizing. A person can do all the work in the process of growing opium poppies or other plants containing narcotic substances, but can also do only one or a few tasks, but all with the purpose of growing opium poppies or other plants containing narcotic substances. If for objective reasons the person growing opium poppies or other plants containing narcotic substances cannot harvest opium resin as desired, he will still be prosecuted for criminal responsibility for the crime of growing opium poppies or other plants containing narcotic substances.

However, opium poppy (poppy) when flowering and poppy flower is also a beautiful flower, if the opium plant grower does not aim to harvest opium resin, but only to harvest flowers to sell like other flowers, then he will not be prosecuted for the crime of growing opium poppy, but there must be educational measures to stop growing opium poppy for flowers because it is also the seed of criminal behavior if not strictly controlled and contrary to the Party and State's policy on eliminating opium poppy cultivation.

The act of growing opium poppies or other plants containing narcotic substances

constitutes a crime only when this behavior has been repeatedly educated,

created conditions to stabilize life and have been administratively punished but still violated. These factors, although not objective acts, are very important signs and they are also mandatory signs of the crime of growing opium poppies or other plants containing narcotic substances.

Having been educated many times means having been educated by state agencies, organizations,

as

those responsible

local campaign, propaganda

serve, remind from

twice back

go up

about not growing medicinal plants

opium or other plants containing narcotic substances or in the way of dissemination

policy as well

the provisions of the law on

ban on planting trees

opium or other plants containing narcotic substances4.

4 See Joint Circular No. 01/1998/TTLT/TANDTC-VKSNDTC-BCA dated January 2, 1998 of the Supreme People's Court - Supreme People's Procuracy - Ministry of Public Security guiding the application of a number of provisions of the Law amending and supplementing a number of provisions of the Penal Code. Documents on criminal, civil, economic and procedural matters. Supreme People's Court. 1998. Page 49

Having been given the conditions to stabilize life means having been supported in terms of

capital for production, plant varieties, livestock or have been instructed on techniques for raising and cultivating fruit trees, industrial crops, food crops to replace opium or other plants containing narcotic substances5.

Having been administratively punished but still violating means having previously grown opium poppies or other plants containing narcotic substances and having been punished with one of the forms of administrative punishment, but not yet exhausted.

The deadline is considered not to have been administratively punished, but now he plants trees.

opium or other plants containing narcotic substances6.

However, judicial practice

show from

when the Ministry

criminal law

1985

Amended and regulated drug crimes into a chapter

(Chapter VIIA) from Article 185a to Article 185(o) there has been no case of planting opium poppies or other plants containing narcotic substances being prosecuted. This shows that our State has invested and the work of mobilizing people to give up planting opium poppies or other plants containing narcotic substances, especially opium poppies, by the local government and organizations has been highly effective.

b. Consequences

Consequences of growing opium poppies or other plants

The damage caused by drug-containing crops is both material and non-material to society, but mainly non-material damage such as: making the State's policy of eliminating the cultivation of opium poppies or other plants containing narcotics impossible to implement or making the re-planting of opium poppies or other plants containing narcotics that have been eliminated. Material damage can also occur but is indirect damage such as causing damage to the budget for eliminating the cultivation of opium poppies or other plants containing narcotics.

Consequences of growing opium poppies or other plants

Containing drugs is not a mandatory sign of criminal composition.

Whether or not a consequence occurs has no conclusive meaning, it only has an evaluative meaning.

meaning in deciding punishment.

4. Subjective signs of crime

A person who commits the act of growing opium poppies or other plants containing narcotic substances does so intentionally, that is, he/she is fully aware that his/her act is prohibited by law and foresees the harmful effects of growing medicinal plants.

5 Cited documents. Page 49

6 Cited documents. Page 49

Opium or other plants containing narcotic substances, despite having been educated many times, having been given conditions to stabilize their lives and having been administratively punished, still deliberately violates. Thus, the act of growing opium or other plants containing narcotic substances can only be committed with direct intention. There is no case of indirect intention.

B. SPECIFIC CRIMINAL CASES

1. Committing the crime of growing opium poppies or other plants containing narcotic substances without circumstances that are factors in determining the penalty

Growing opium poppies or other plants containing narcotic substances that are not specified in Clause 2 of the law is a basic element of a crime, specified in Clause 1, Article 192 of the Penal Code with a penalty of six months to three years in prison, and is a less serious crime.

Compared to Clause 1, Article 185a of the 1985 Penal Code regulating this crime, if only based on the penalty, Clause 1, Article 192 of the 1999 Penal Code is neither lighter nor heavier. However, because Clause 1, Article 192 of the 1999 Penal Code specifically stipulates the circumstance of "having been administratively sanctioned for this act but still committing the violation", Clause 1, Article 192 of the 1999 Penal Code must be considered a provision favorable to the offender, so according to the provisions of Clause 3, Article 7 of the Penal Code, it is applied to criminal acts committed before 0:00 on July 1, 2000 but discovered and handled after 0:00 on July 1, 2000.

As with other crimes, when deciding on the penalty for

For offenders under Clause 1, Article 192 of the Penal Code, the Court must base on the provisions on deciding on penalties in Chapter VII of the Penal Code (from Article 45 to Article 54). If the offender has many mitigating circumstances prescribed in Clause 1, Article 46 of the Penal Code, without aggravating circumstances prescribed in Article 48 of the Penal Code, the Court may apply below the lowest level in the penalty range (less than six months in prison), but not less than three months in prison. If the conditions prescribed in Article 60 of the Penal Code are met, the offender may be given a suspended sentence. In general, for offenders who grow opium poppies or other plants containing narcotic substances in the cases prescribed in Clause 1, Article 192 of the Penal Code, if they meet the conditions prescribed in Article 60 of the Penal Code, they should be given a suspended sentence, not a prison sentence because only then can they be educated to give up growing opium poppies.

2. Committing a crime under the provisions of Clause 2, Article 192 of the Penal Code

a. Organized

Like other organized crimes, organized cultivation of opium poppies or other plants containing narcotic substances is a case where many people intentionally discuss, collude closely with each other, and plan to carry out the act of growing opium poppies or other plants containing narcotic substances, under the unified control of a leader.

Growing opium poppies or other plants containing organized narcotics

position is a form of complicity, with division and arrangement of roles.

participants, each of whom performs one or more acts and is subject to the control of a leader.

The organizer is the mastermind, leader, and commander of the tree planting.

opium or other plants containing narcotic substances such as: Initiating the cultivation of opium or other plants containing narcotic substances;

assigning tasks to other accomplices; directing, coordinating

the acts of other accomplices to achieve the common purpose of growing opium poppies or other plants containing narcotic substances.

The practitioner is the person who directly carries out the act of growing opium poppies or other plants containing narcotic substances such as: tilling the land, sowing seeds, fertilizing, and harvesting.

An instigator is a person who incites, entices, or encourages others to grow opium poppies or other plants containing narcotic substances, such as: mobilizing others not to implement the Party and State's policy of eliminating the cultivation of opium poppies or other plants containing narcotic substances, inciting others to continue growing opium poppies or other plants containing narcotic substances and telling them that growing opium poppies or other plants containing narcotic substances is more profitable than other plants; inciting others to use State support money invested in growing food crops and industrial crops to invest in growing opium poppies or other plants containing narcotic substances...

An accomplice is a person who creates mental or material conditions for the cultivation of opium poppies or other plants containing narcotic substances such as: providing money, seedlings, fertilizers, pesticides... for others to cultivate opium poppies or other plants containing narcotic substances; promising to those who cultivate opium poppies or other plants containing narcotic substances to buy their products...

The organized crime of growing opium poppies or other plants containing narcotic substances may involve all the accomplices, but it may also involve only the organizer and the perpetrator. But there must be a perpetrator and an organizer, if one of these two is missing, it is not possible.

body

organized crime

However, if there is already an organizer, the person