Scientific commentary on the criminal code Volume 7 - Dinh Van Que

important to the health or property of others if one of the following circumstances applies:

- Causing harm to the health of one to two people with each person's disability rate from 31% or more;

- Causing harm to the health of many people with each person's disability rate below 31%, but the total disability rate of all these people is from 41% to 100%;

- Causing damage to a person's health with a disability rate of 21% to 30% and also causing property damage worth from thirty million VND to less than fifty million VND;

- Causing damage to the health of many people, with each person's disability rate below 21%, but the total disability rate of all these people is from 30% to 40% and also causing property damage worth from thirty million VND to less than fifty million VND;

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- Causing damage of less than five hundred million dong.

assets worth from fifty million dong to

When determining property damage to others, attention should be paid to:

Only assets resulting from violations of control regulations

Road traffic means directly cause, while indirect damages are not considered damages to determine criminal liability for the offender such as: Due to injury, the cost of treatment and other expenses (loss of income, prosthetic legs, prosthetic hands, prosthetic eyes...). Although the offender still has to compensate for these damages, they are not counted to determine criminal liability for the crime.

Damage to life, health, and property caused by a criminal is damage to others, so it does not include damage that the criminal causes to himself. For example: Due to speeding and reckless driving, Tran Van Q caused an accident that injured Vu Khac B with a disability rate of 25%, and Q was also injured with a disability rate of 35%. In this case, the damage to health is due to the violation of regulations on vehicle control.

road traffic

of Q caused to others only

25% yes

not 60% (25%+35%).

Causing very serious or especially serious consequences

then the offender is subject to clause 3 of the law.

criminal prosecution

according to paragraph 2 or

c. Other objective signs

In addition to the objective behavior and consequences caused by the crime, for the crime of violating regulations on controlling road vehicles, lawmakers stipulate a number of other objective signs as mandatory signs of the crime such as: Vehicle; location (the place of violation is a road traffic facility)... Determining these objective signs is very important, as they are signs to distinguish this crime from other traffic safety violations.

According to the provisions of the Road Traffic Law

then

road including

road, road bridge, road tunnel, road ferry terminal. And the means

Road vehicles include road motor vehicles and rudimentary road vehicles. Vehicles participating in road traffic include road vehicles and specialized motorcycles. Specialized motorcycles include construction motorcycles, agricultural and forestry motorcycles participating in road traffic.

For road vehicles, it is generally not difficult to determine

However, for Special Purpose Vehicles, determining whether it is

Whether a vehicle participates in traffic or not, there are many complicated cases. For example: A bulldozer is working on a road, is this bulldozer participating in traffic or is it just a normal construction vehicle? Judicial practice shows that if this bulldozer is working, it is not considered participating in traffic, but if this bulldozer moves from one location to another or from the motorbike gathering place to the construction site, it is considered participating in traffic.

There are also other objective signs such as: Roads,

road works, road land, road safety corridor, roadway, lane, road width limit, street,

median strip, highway etc. These factors are also very important.

when determining violations of regulations on road traffic control. According to the road traffic law:

Roads include roads, road bridges, road tunnels, and road ferries.

Road works include roads, parking lots, drainage systems, traffic lights, markers, signs, median strips and other auxiliary works and equipment.

Road land is the land on which road works are built.

Road safety corridor is a strip of land along both sides of the road to ensure traffic safety and protect road works.

The roadway is the part of the road used for vehicular traffic.

A lane is a portion of a roadway divided by

longitudinal road, wide enough for vehicles to run safely.

Road clearance is the space with limited dimensions in terms of height and width of roads, bridges, and tunnels on roads so that vehicles, including goods loaded on them, can pass safely.

Street is an urban road including roadway and sidewalk.

Median strip is a part of the road that divides the road surface into two separate lanes or separates the road for motor vehicles and non-motorized vehicles. Median strips include fixed and mobile types.

A highway is a road reserved for motor vehicles traveling at high speeds.

high, with a median strip dividing the road for vehicles going in two opposite directions separately and not intersecting at the same level with other roads.

4. Subjective signs of crime

The offender violates the regulations on road traffic control by committing the act unintentionally (unintentionally due to overconfidence or unintentionally due to carelessness).

Inadvertently overconfident is a case where the offender foresees the action.

his behavior may cause harmful consequences to society, but he believes that

that consequence will not occur or can be prevented.

Negligence is when the offender does not foresee the crime.

One's actions may cause harmful consequences to society, although those consequences must be foreseen and can be foreseen.

Currently on some

books and newspapers with the topic

level to the form of "mixed way"

"combined" and often take the violation of regulations on road traffic control as an example of mixed faults such as: Intentional behavior, unintentional consequences. For example: A driver intentionally ran a red light, causing an accident that killed someone. In this case, the driver was intentional about the behavior (intentionally ran until red), but did not want the consequences to occur and did not ignore the consequences.

In some cases, when deciding on the punishment for the offender, the Courts also consider that the victim is also at fault and consider the case where the victim is at fault as mixed fault (both parties are at fault).

In both cases above, if we consider it a mixed error, we think it is not satisfactory.

In the first case, the offender intentionally committed the crime (intentionally ran a red light) which does not mean that the offender was fully aware that the act of running a red light was dangerous to the lives of others, foresaw the fatal consequences that would occur or could occur, desired or ignored the consequences that would occur, but in this case the offender only consciously thought that even though

ran a red light

but believe that the consequences

death will

not happen

In this case, the offender is still unintentional, but unintentional because of overconfidence. Intention or unintentional is the offender's psychological attitude towards the act and the consequences, not just the consequences.

In the second case, the victim is also at fault. In the folk way of speaking, it is okay, but in terms of legal science, in this case, the victim also violated traffic safety regulations, so if we say that they are at fault, it is wrong.

fault is fault towards the offender, not legal fault, also

It cannot be said that both are at fault, but only that both have violated traffic safety regulations and this case cannot be considered a "mixed fault".

Offenders who violate road traffic regulations may have different motives but do not have a purpose because the offender's fault is unintentional and therefore cannot have a purpose.

B. SPECIFIC CRIMINAL CASES

1. Committing a crime of violating regulations on road traffic control without circumstances determining the penalty

This is a criminal case stipulated in Clause 1, Article 202 of the Penal Code, which is the basic element of the crime of violating regulations on controlling road vehicles. The offender may be fined from five million to fifty million VND, and subject to non-custodial reform for up to

three years or severe.

imprisonment from

six months to five years, is a serious crime

Compared with the crime of violating traffic safety regulations stipulated in Article 186 of the 1985 Penal Code, Clause 1, Article 202 of the Penal Code

The 1999 criminal law is lighter because Clause 1, Article 202 of the 1999 Penal Code stipulates that a fine is a lighter penalty than non-custodial reform, which Article 186 of the 1985 Penal Code does not stipulate. If we compare Article 186 of the 1985 Penal Code with Article 202 of the 1999 Penal Code, Article 202 is the lighter provision. However, regarding the non-custodial reform penalty, Clause 1, Article 202 of the 1999 Penal Code is heavier than Clause 1, Article 186 of the 1985 Penal Code. Therefore, the act of violating the regulations on driving road vehicles occurred before

0 hours

00 July 1, 2000 but after 0:00

00 July 1, 2000 new processing

theory

apply Clause 1, Article 202 of the 1999 Penal Code. However, if the penalty of non-custodial reform is applied, it shall not exceed two years.

When deciding on penalties for offenders violating regulations on road vehicle control according to Clause 1, Article

202 Penal Code, the Court must base on the provisions on decisions

penalties in Chapter VII of the Penal Code (from Article 45 to Article 54).3 If the offender has many mitigating circumstances prescribed in Article 46 of the Penal Code, without aggravating circumstances or if there are, the degree of aggravation is insignificant, then a fine or non-custodial reform may be applied. If the offender has many aggravating circumstances prescribed in Article 48 of the Penal Code, without mitigating circumstances or if there are, the degree of aggravation is insignificant, then he/she may be sentenced to up to five years in prison.

For crimes of violating regulations on traffic safety as prescribed in Article 186 of the 1985 Penal Code, the Supreme People's Court, the Supreme People's Procuracy and the Ministry of the Interior (now the Ministry of Public Security) have

Circular

interdisciplinary number

02/TTLN dated January 7, 1995. However, some

rule

The provisions of this Joint Circular are no longer suitable for the crime of violating the regulations.

regulations on road vehicle control as prescribed in Article

202 of the 1999 Penal Code. For example: Point a, Section 3 stipulates: Causing the death of one or two people, the offender shall be prosecuted for criminal liability.

according to Clause 1, Article 186. Now this provision is only suitable for

in case of killing one person, and in case of killing two people, then

the offender must be punished

criminal prosecution

according to paragraph 2 of

The new law is appropriate, because Clause 2, Article 202 of the 1999 Penal Code stipulates cases causing very serious consequences that Clause 2, Article 186 did not previously stipulate. It is also because of this unreasonableness that on April 17, 2003, the Council of Judges of the Supreme People's Court issued a Resolution

3 See Dinh Van Que "Scientific commentary on the 1999 Penal Code - General part" Ho Chi Minh City Publishing House 2000. pp. 227-235 (Basis for deciding on punishment)

No. 02/2003/NQ-HDTP guiding the application of a number of provisions of the Civil Code

Criminal Code 1999 including Article 202.

2. Committing crimes in the cases specified in Clause 2, Article 202 of the Penal Code

a. No license or driver's license as prescribed

According to the law, for some types of vehicles, the driver must have a license or driving license to drive. If the driver of these vehicles does not have a license or driving license, but still drives and violates the regulations on

driving a road vehicle and causing damage to property

Those who cause death or serious damage to the health or property of others shall be prosecuted under Point a, Clause 2 of the Law.

According to the provisions of the Road Traffic Law, drivers participating in traffic must have a driving license appropriate to the type of vehicle they are allowed to drive, issued by a competent state agency. For example: An unlimited driving license includes the following classes: Class A1 is issued to drivers of two-wheeled motorbikes with a cylinder capacity of 50 cm3 to less than 175 cm3; Class A2 is issued to drivers of two-wheeled motorbikes with a cylinder capacity of 175 cm3 or more and the types of vehicles specified for a Class A1 license; Class A3 is issued to drivers of three-wheeled motorbikes, the types of vehicles specified for a Class A1 license and similar vehicles (Clause 2, Article 54 of the Road Traffic Law).

When determining the circumstance of “no license or driving license as prescribed” it is necessary to pay attention to:

First of all, the offender must possess all the elements constituting the crime specified in Clause 1 of the article (basic elements). If the offender

have violated the regulations on traffic control

road but has not caused loss of life or damage

If the violation causes serious harm to health or property, the violator is not subject to the provisions of Point a, Clause 2 of the Law.

unlicensed road vehicle drivers

Driving without a license or permit is only an administrative violation. Trial practice shows that in many cases, the prosecuting agencies often mistakenly assume that a person who does not have a license or permit when violating regulations on driving a road vehicle has committed a crime.

falling under the provisions of Clause 2 of the Article, regardless of the elements constituting the crime as prescribed in Clause 1 of the Article.

A person with a driving license of a certain type of vehicle is only valid when driving that type of vehicle, unless otherwise provided by law. For example: A person with a Class A1 driving license is not allowed to drive a car that is required to have a Class A2 driving license. However, a person with a Class A2 driving license is allowed to drive a motorbike in cases where a Class A1 driving license is required. However, a person with a Class B1 driving license issued to a person who drives a car carrying up to 9 people, a truck, or a tractor with a load capacity of less than 3,500 kg is not allowed to drive a motorbike.

For those whose driving license is revoked, if they have not been issued a new driving license but still drive a vehicle that requires a driving license, they are considered to have no driving license.

A person who has lost his/her driver's license, has reported it to the competent State agency, but has not been reissued another license and has sufficient evidence of the loss of the driver's license confirmed by the competent authority and is waiting for the issuance of another license is not considered to have no driver's license.

b. While drunk or under the influence of strong stimulants

other

This is a case of violating regulations on road traffic control causing loss of life or serious damage to health or property while the offender is drunk or intoxicated by using other strong stimulants.

Currently there are no official guidelines on what constitutes a drunk person or a person intoxicated by the use of strong stimulants, so in practice

trial, many cases the authorities

prosecution

other opinions

each other when determining this crime.

The Road Traffic Law prohibits drivers from operating a vehicle on the road with a blood alcohol concentration exceeding 80 milligrams/100 milliliters of blood or 40 milligrams/1 liter of breath or with other stimulants prohibited by law. However, drivers of road vehicles

with a blood alcohol concentration exceeding 80 milligrams per 100 milliliters of blood or 40

milligrams/1 liter of breath or other stimulants prohibited by law

does not mean that the person was drunk. The regulation of the offender

Crime while drunk or intoxicated by other strong stimulants is

a regulation that is difficult to apply in practice. Meanwhile, for crimes violating regulations on driving railway and waterway vehicles, it is stipulated: "In a state of drinking alcohol or beer exceeding the prescribed concentration

or intoxicated by using other strong stimulants”. Hopefully when there is a

In the case of amending and supplementing the Penal Code, this issue will be considered by lawmakers.

While there is no official guidance, in our opinion, basing on the blood alcohol concentration as prescribed in the Road Traffic Law to determine the "drunk" state of a road vehicle driver is consistent with the Road Traffic Law, because the determination of alcohol content and other stimulants can be done by specialized agencies.

c. Causing an accident and then leaving the victim without helping

run to

shirk responsibility or intentionally

Point c, Clause 2 of the law stipulates two different crimes but with the same nature and level of danger, which are: Causing an accident and then fleeing to avoid responsibility or intentionally not helping the victim.

Cause an accident and then leave.

run to

shirk responsibility

is the case

offenders who violate traffic regulations

road traffic causing loss of life or serious damage

important to health, property, but then ran away to avoid responsibility.

According to the provisions of Article 36 of the Road Traffic Law, the driver and those directly involved in the accident must immediately stop the vehicle; maintain the scene; provide first aid to the victim and must be present when requested by the competent authority; remain at the scene of the accident until the police arrive, except in cases where the driver is also injured and must be taken to the emergency room or in cases where his or her life is threatened, but must immediately report to the nearest police agency; provide authentic information about the accident to the police agency.

Fleeing due to life-threatening reasons and immediately reporting to the nearest police station; providing accurate information about the accident