Scientific commentary on the criminal code Volume 5 - Dinh Van Que

DINH VAN QUE

MASTER OF LAW – SUPREME PEOPLE'S COURT

COMMENTARY ON THE 1999 CRIMINAL CODE

SECTION OF CRIMES

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CHAPTER XXI

OFFICE CRIMES

HO CHI MINH CITY PUBLISHING HOUSE

INTRODUCTION

The Penal Code was passed by the 10th National Assembly, 6th session on December 21, 1999, effective from July 1, 2000 (hereinafter referred to as the 1999 Penal Code). This is the Penal Code replacing the 1985 Penal Code which was amended and supplemented four times on December 28, 1989, August 12, 1991, December 22, 1992 and May 10, 1997.

The 1999 Penal Code not only comprehensively reflects the

Criminal law is not only a tool of the Party and State in the current period, but also a sharp tool in the fight against crime, ensuring the people's right to mastery, ensuring the effectiveness of State management, contributing to the implementation of innovation, promoting industrialization and modernization of the country.

Compared with the 1985 Penal Code, the 1999 Penal Code has many new provisions on crimes and penalties. Therefore, understanding and applying the provisions of the Penal Code on crimes and penalties is a very important issue. 17

In February 2000, the Prime Minister issued Directive No. 04/2000/CT-TTg on the organization of

The agency implementing the Criminal Code emphasized: "The work of dissemination and propaganda

The Criminal Code must be widely implemented among cadres, civil servants and public employees.

officers and soldiers in the armed forces and among the people, to make everyone understand the basic contents of the Code, especially the newly amended and supplemented contents, so that they can strictly comply with it".

With the above meaning, following the book "Scientific Commentary on the Criminal Code

1999 (general part); book

"Commentary Department

criminal law

(part of the crimes)

Ho Chi Minh City Publishing House continues to publish the book " Commentary on the Criminal Code ( part on crimes ) volume V - crimes related to positions " by author Dinh Van Que - Master of Law , Deputy Chief Justice of the Criminal Court of the Supreme People 's Court , who has spent many years researching , teaching and publishing many scientific commentaries on the Criminal Code and is also the person who directly participated in the trial of many cases of crimes related to positions .

Based on the provisions of Chapter XXI of the 1999 Penal Code, compared with the provisions of the 1985 Penal Code, and compared with trial practice

In the cases of office, the author scientifically explained the crimes.

Offences related to position as prescribed in Chapter XXI of the Penal Code, and at the same time the author

also boldly raised a number of issues that need to continue to improve criminal law in our country.

We would like to respectfully introduce to our readers.

INTRODUCTION

The 1999 Penal Code divides crimes related to positions into two sections. Section A is crimes related to corruption. Section B is other crimes related to positions.

Section A, Chapter XXI of the Penal Code stipulates 7 crimes considered as corruption crimes, which are: Crime of embezzlement of property (Article 278); crime of accepting bribes (Article 279); crime of abusing position and power to appropriate property (Article 280); crime of taking advantage of position and power while performing official duties (Article 281); crime of abuse of power in public service (Article 282);

on duty

(Article 282); crime of abusing position and power to cause harm

image

enjoy with others (Article 284).

profiteering (Article 283) and forgery

fake at work

Section B, Chapter XXI of the Penal Code stipulates 7 other crimes related to positions, which are: crime of lack of responsibility causing serious consequences (Article 285); crime of intentionally revealing and losing one's job, crime of appropriating, buying and selling secret work documents (Article 286); crime of unintentionally revealing and losing one's job, crime of losing secret work documents (Article 287); crime of desertion (Article 288); crime of giving bribes (Article 289); crime of acting as a broker.

bribery

(Article 290) and the crime of taking advantage of

influence on people in positions of authority,

power to profit (Article 291).

In recent years, the Party and State have had many policies and measures to prevent and repel corruption, but due to many different reasons, the fight against corruption has not been effective, corruption is still very serious, still one of the risks that weaken the socialist regime, directly reducing people's trust in our Party and State.

In addition to corrupt acts, there are also acts related to corruption or related to positions and powers.

The provisions of the 1999 Penal Code on corruption crimes and other crimes related to positions are more complete and detailed, reflecting the current situation of the fight against this type of crime in recent times; helping the investigation, prosecution and especially the trial of this type of crime to be more favorable than before.

However, due to the provisions of the 1985 Penal Code on corruption crimes, other crimes related to positions still have many points that have not been addressed.

guidance and practice in trying many criminal cases, the agencies

The prosecution has encountered many difficulties in applying the Penal Code to prosecute criminals. Now the 1999 Penal Code stipulates many new points, if not understood uniformly

It will be more difficult to apply the Criminal Code when trying crimes.

corruption, other crimes of office.

To contribute to understanding the 1999 Penal Code, through trial practice and

summary of trial work

crimes against

corruption, other crimes

In recent years, we would like to provide readers with theoretical and practical issues to help readers, especially officers working in law enforcement agencies, with basic legal signs for crimes of corruption and other crimes related to positions as prescribed in Chapter XXI of the 1999 Penal Code.

Part One

SOME NEW POINTS OF CRIMES OF CORRUPTION AND OTHER CRIMES RELATED TO OFFICIAL OFFICE

IN THE 1999 CRIMINAL CODE

Chapter XXI of the 1999 Penal Code stipulates crimes related to position.

consists of 15 Articles corresponding to 14 different crimes, including one article stating

concept of position. Compared with Chapter IX (crime section) of the 1985 Penal Code (excluding the provision on additional penalties), the 1999 Penal Code stipulates 3 more Articles (the 1985 Penal Code has 12 Articles), in which the crime of embezzlement, the crime of abusing position and power to appropriate property was previously stipulated in the 1985 Penal Code in the chapter on socialist property crimes. The 1999 Penal Code stipulates this crime in the chapter on crimes of position and the crime of bribery, the crime of acting as a bribery intermediary of the Penal Code.

The 1985 provisions in the same law (Article 227) now include two crimes.

This crime is regulated in two separate articles (Article 289-Crime of giving bribes and Article 290-Crime of acting as a bribery intermediary).

Chapter IX of the 1985 Penal Code only regulates crimes related to positions without distinguishing between crimes related to corruption and other crimes related to positions.

Due to the requirements of the fight against corruption, on February 26, 1998, the Standing Committee of the National Assembly issued the Anti-Corruption Ordinance.

According to Article 1 of the Anti-Corruption Ordinance dated February 26, 1998, corruption is the act of a person holding a position or power who has taken advantage of that position or power to embezzle, bribe or intentionally violate the law for personal gain, causing damage to the property of the State, collectives and individuals, and violating the proper operation of agencies and organizations.

The Anti-Corruption Ordinance lists 11 acts of corruption based on the Law amending and supplementing a number of articles of the Penal Code dated May 10, 1997 on corruption, drug crimes and sexual crimes against children, including:

- Embezzlement of socialist property;

- Accept bribes;

- Using socialist property as bribery; taking advantage of position and power to bribe or broker bribery;

- Abusing position and power to defraud and appropriate socialist property, abusing trust to appropriate socialist property;

- Abusing position and power to illegally use socialist property;

- Taking advantage of position and power to appropriate personal property;

- Taking advantage of position and power while performing duties and public service for personal gain;

- Abuse of power while performing duties and public service for personal gain;

- Taking advantage of position and power to influence others to extort

profit;

- Establishing illegal funds;

- Forgery in work for personal gain.

However, in the process of drafting the 1999 Penal Code, the Drafting Committee

The draft has reviewed the acts that are truly corrupt and are regulated in Section A, Chapter XXI, and the rest are transferred to other chapters to suit the nature of the criminal acts.

To comply with the provisions of the 1999 Penal Code, on April 28, 2000, the Standing Committee of the National Assembly issued an Ordinance amending and supplementing a number of articles of the Anti-Corruption Ordinance, which only stipulates 7 acts considered as corruption, including:

- Embezzlement of property;

- Accept bribes;

profit;

- Abuse of position and power to appropriate property;

- Taking advantage of position and power while performing official duties for personal gain;

- Abuse of power while performing official duties for personal gain;

- Taking advantage of position and power to influence others to extort

- Falsification at work for personal gain.

For other crimes related to position, compared with the 1985 Penal Code

generally no additional modifications

as big as

for crimes against

Reference

corruption. However, in each specific law, the legislator stipulates the circumstances that are the elements of the crime or the elements that determine the penalty framework to suit the reality of the fight against and prevention of this type of crime in the current period.

Regarding additional penalties for crimes related to positions, they are all prescribed.

specified in the law without being stipulated in a separate law.

- Regarding the crime of embezzlement of property ( Article 278), there is no longer a provision for embezzlement of socialist property, but only for embezzlement of property. This change is not simply a matter of wording but also changes the nature of the crime of embezzlement , not

Only socialist property is subject to the crime of embezzlement and not only

Only those who directly manage socialist property can become the subject of the crime of embezzlement. The amount of property prescribed is a factor in determining the crime stipulated in Clause 1 of the law in the direction that it does not apply to criminals. If Clause 1, Article 133 of the 1985 Penal Code stipulates that embezzlement of 5,000,000 VND is subject to criminal prosecution, Clause 1, Article 278 of the 1999 Penal Code stipulates that embezzlement of 500,000 VND is subject to criminal prosecution; instead of the circumstance that has been

Disciplinary action using the circumstances that have been disciplined for this behavior; replace the circumstances of the violation

multiple offenses with the circumstance of "having been convicted of one of the crimes specified in

Section A of this chapter, not yet cleared of criminal record but still violated".

The circumstances determining the penalty framework are also re-regulated, such as: adding the word "other" to circumstances causing serious, very serious, and especially serious consequences as a factor in determining the penalty framework; removing the circumstance of "collusion with others"; the circumstance of "organized" Article 113 of the 1985 Penal Code stipulates:

prescribed in Clause 3, now Article 278 of the 1999 Penal Code prescribes in Clause 2;

Add the word "appropriated" to the circumstances "valuable property..."; the quantity of appropriated property in the circumstances is a factor in determining the penalty framework, also changing in a direction that is not favorable to the offender (from one hundred million to three hundred million dong).

million dong is replaced by fifty million dong to two hundred million dong

(Clause 2); from three hundred million dong to less than five hundred million dong is replaced by

from two hundred million dong to less than five hundred million dong (clause 3); additional penalties are stipulated in the law.

- For the crime of bribery (Article 279 ), add the circumstance " having been convicted of one of the crimes specified in Section A of this chapter, not having had the criminal record expunged but still

violate"

in case of bribery

less than 500,000 VND; change details

"knowing that the bribe is socialist property" with the circumstance "knowing that the bribe is state property" significantly changes the nature of this circumstance. If the bribe is property of a political organization, socio-political organization, social organization... then it does not fall under the provisions of Clause 2, Article 279 of the Penal Code; adding the word "other" for the circumstance causing serious, very serious, and especially serious consequences is a factor in determining the penalty; the property levels are

The bribery provisions in the penalty framework are also re-regulated according to

more favorable to the offender than Article 226 of the 1985 Penal Code such as: from ten million to less than thirty million is replaced by from ten million to less than

fifty million

(paragraph 2); from

thirty million to fifty million is replaced

from fifty million to less than three hundred million (clause 3); from fifty million

or more is replaced by three hundred million or more (clause 4). Regarding additional penalties, the word "still being" is replaced by the word "may be", the fine is replaced and the period of prohibition from holding certain positions is also lighter than in clause 5, Article 226 of the 1985 Penal Code; the circumstance "having many circumstances specified in clause 2 of this article, clause 3 of this article" specified in clause 3 and clause 4 of the article is removed; additional penalties are specified right in the article.

- The crime of abuse of position to appropriate property (Article 280) is a crime.

The crime specified in Chapter IV of the 1985 Penal Code is a crime of infringement of property, this crime is considered a crime of corruption and specified in Section A, Chapter XXI of the 1999 Penal Code. Article 280 adds the circumstance "having been convicted of one of the crimes specified in Section A, Chapter XXI of the 1999 Penal Code".

This, not yet cleared of criminal record but still violated" in case the value of the property is

appropriation of less than 500,000 VND; the amount of property quantification prescribed is a criminal element prescribed in Clause 1 of the law in the direction of not allowing the offender

crime, if clause 1, Article 156 of the Criminal Code

criminal law

1985 appropriation regulations

5,000,000 VND is subject to criminal prosecution, while Clause 1, Article 280 of the 1999 Penal Code stipulates that appropriation of 500,000 VND is subject to criminal prosecution; the value of the appropriated property specified in the penalty frames is also re-regulated in a more severe direction compared to Article 156 of the 1985 Penal Code, such as: from one hundred million to less than three hundred million is replaced by from fifty million to less than two hundred million (Clause 2); from three hundred million to less than

five hundred million is replaced by from two hundred million to under five hundred million

(Clause 3); add the word "other" to the circumstances causing serious, very serious, and especially serious consequences as a factor in determining the penalty; remove the circumstance "having many circumstances specified in Clause 2, Clause 3 of this Article" in Clause 3 and Clause 4 of the article; additional penalties are specified right in the article.

- For the crime of taking advantage of position and power while performing official duties

(Article 281) is restructured into 3 clauses (in addition to additional penalties) according to

lighter direction than Article 221 of the 1985 Penal Code. Clause 1 adds a type of crime.

Non-custodial reform, Clause 3 is structured in the direction of merging Clauses 3 and 4 of Article 221 with a penalty range of ten to fifteen years (Clause 4 of Article 221 has a penalty range of fifteen to twenty years); remove the circumstance "there are many circumstances specified in Clauses 2 and 3 of this Article"; additional penalties are stipulated right in the article.

- For the crime of abuse of power while performing official duties ( Article 282) is restructured into 3 clauses (in addition to additional penalties) in a lighter direction than Article 221a of the 1985 Penal Code. Clause 1 has the lowest penalty level of one year in prison (Clause 1, Article 221a is two years in prison), Clause 2 has a penalty range from five to twelve years (Clause 2, Article 221a is from seven to fifteen years),

Clause 3 has a penalty of ten to twenty years (Clause 3, Article 10).

221a from fifteen years and clause 4 imprisonment of twenty years or life imprisonment); remove the circumstance "there are many circumstances specified in clause 2, clause 3 of this article"; additional penalties are stipulated right in the law.

- The crime of taking advantage of one's position and power to influence others for personal gain (Article 283) is basically the same as Article 228a of the 2005 Penal Code.

1985, only

have some

Small changes such as: removing the detail "there are many details specified in the

Clause 2, Clause 3 of this Article"; add the word "other" for circumstances causing serious, very serious, especially serious consequences as a factor in determining the penalty; the value of money, property or other material benefits prescribed as a factor in determining the penalty in Clause 2, Clause 3 and Clause 4 of the law are all in a direction more favorable to the offender than Article 228a such as: from ten million VND to less than thirty million VND

million dong is replaced by from ten million dong to under fifty million dong

(in clause 2), from thirty million VND to less than fifty million VND is replaced by from fifty million VND to less than three hundred million VND (in clause 3); from fifty million VND or more is replaced by from three hundred million VND or more (clause 4); additional penalties are specified in the article.

- The crime of forgery in work ( Article 284 ) is re-regulated in a lighter direction than Article 224 of the 1985 Penal Code in all 4 clauses, clause 1 of