Subject of the Crime of Fraudulent Appropriation of Property

There is no crime. The study of objective details of crime is therefore of great practical significance.

The objective aspect of the crime of fraud and appropriation of property has the following characteristic signs:

First, behavioral signs: Socially dangerous behavior in the crime of fraud and property appropriation includes two actual behaviors: fraud and property appropriation.

- Deception is the act of intentionally giving false information in order to make others believe it is true.

Fraudulent means in the crime of property fraud have many different forms of expression. Studying these forms of expression is not meaningful in determining the crime of property fraud, but considering the form of expression is of great value in the work of fighting and preventing this crime.

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- Appropriation is the act of intentionally and illegally converting property under the management of the property owner into one's own property.

The acts of deception and the acts of appropriation in the crime of property fraud are closely related. The acts of deception create conditions for the acts of appropriation to be carried out openly and easily.

In the crime of property fraud, the deceitful means of the offender must always come first, then the transfer of property between the victim and the offender takes place. In cases where the deceitful means comes after the offender receives the property, it is not a case of property fraud. In each specific case, the deceitful means formed after the offender receives the property may be an act of concealing a crime or another crime such as the crime of abusing trust to appropriate property. Normally, the act of appropriation occurs immediately after the act of fraud, and there are also cases where there is a certain time gap between the two acts [8, p.2].

Second, the sign of consequences: The consequences of a crime are the damage caused by the criminal act to social relations, which is the object of protection of criminal law.

The damage caused to the object is manifested through the change in the normal state of the components of the social relationship that is the object of the crime.

The crime of property fraud is a crime with a material element, meaning that the crime's composition reflects signs of dangerous consequences for society, but the consequences are not mandatory signs. There are cases where the consequences have not yet occurred and can still constitute the crime of property fraud. The consequences of the crime are reflected in the crime's composition through property damage, specifically the value of the property appropriated. Therefore, determining that property is the subject of the crime of property fraud is a mandatory sign. This is a quantitative sign to determine the basic composition or the composition of the aggravated framework of the crime of property fraud.

In addition to the consequences (value of the misappropriated property) as a sign of conviction, in reality, the act of fraud to appropriate property also causes other dangerous consequences (in addition to the main infringement of the direct object), which are property damage, physical damage or other immaterial consequences occurring at different levels, demonstrating the level of danger to society of the act of fraud to appropriate property. These consequences often arise due to the misappropriation of property (there is a causal relationship between the misappropriation of property and the consequences). Therefore, when determining the consequence as property damage, it must occur in addition to the value of the misappropriated property. The immaterial consequences here are expressed as: negative impact on the implementation of the Party and State's policies and guidelines; causing great impact on security, order and social safety [8, p.3].

Third, the causal relationship between the conduct and the consequences of the crime.

Each person is only criminally responsible for dangerous consequences to society when those dangerous consequences are caused by their own objective behavior. The causal relationship between the behavior and the consequences of the crime is expressed as follows:

- The fraudulent act must occur before the act of appropriation of property.

- Fraudulent behavior is the main basis for deciding the criminal's property appropriation.

Because the appropriation of the offender's property can cause other dangerous consequences for society, determining the causal relationship between the act and the above consequences is not only meaningful in terms of conviction but also meaningful in deciding on punishment.

The crime of fraud to appropriate property constitutes a material crime, so the crime is completed when the offender has appropriated the property, that is, when the offender has taken ownership of the appropriated property and the victim has lost the ability to actually own that property.

1.1.2.3. Subjects of the crime of fraud and appropriation of property

“The subject of a crime is a person who has criminal responsibility, has reached the legal age and has committed a specific crime” [35, p.32]. Thus, the subject of a crime can only be a specific person, not a legal entity. In some specific cases, the subject of a crime also has other special signs - called a special subject of a crime.

A person with criminal responsibility is a person who, when committing a socially dangerous act, is able to perceive the socially dangerous nature of his or her act and is able to control that act.

Since the subject of the crime of fraud to appropriate property is a common subject, there is no exception for foreigners and stateless persons when committing acts of fraud to appropriate property in the territory of Vietnam. Except for a number of people who enjoy judicial immunity, their criminal responsibility is resolved through diplomatic channels.

When studying the subject of the crime of fraud and appropriation of property, it is necessary to pay attention to the personal characteristics of the offender such as: occupation, family circumstances, cultural level, economic life, legal awareness, criminal record, etc. This is important for determining the criminal responsibility of the offender as well as measures to combat and prevent the crime of fraud and appropriation of property.

1.1.2.4. Subjective aspect of the crime of fraud and appropriation of property

Crime is a unity of objective and subjective aspects. If the objective aspect is the external manifestation of the crime, the subjective aspect is the internal psychological activity of the criminal.

The subjective aspect of a crime includes: fault, motive, and purpose of the crime, in which fault is reflected in all elements of the crime. Fault is an indispensable sign of any element of the crime. Purpose and motive of the crime, however,

are also subjective signs of crime but do not always have a decisive meaning in determining the dangerous nature of the crime to society.

The nature and characteristics of the act of fraud to appropriate property in terms of the subjectivity of the crime are expressed by direct intentional fault with the purpose of appropriating property.

* Error signs

"An act that causes damage to society will be considered a fault if that act is the result of the subject's own choice and decision while the subject has sufficient objective and subjective conditions to choose and decide on another course of action in accordance with social requirements" [35, p.35].

Direct intentional fault in the crime of fraud and appropriation of property is expressed as:

- In terms of reason: The offender is clearly aware of the dangerous nature to society of the act he commits, which is to violate the property of others; is clearly aware that the tricks he uses are completely unreal, in order to make others believe that they are true. The offender commits the crime of fraud to appropriate property, before committing the act of fraud, he has the intention to appropriate the property of others.

- Regarding will: The offender desires the act of deception to result in appropriating another person's property.

* Signs of motive and purpose of crime

Criminal motive is understood as the internal motivation that drives the offender to commit a crime.

Fraudsters can have many different motives when committing crimes: it can be to satisfy their own consumption needs, because of greed... and that is the motive of self-interest.

For the crime of fraud and appropriation of property, signs of criminal motive have no significance in determining the crime, they only have significance in deciding the penalty.

Criminal intent is the result in the subjective consciousness that the criminal sets out to achieve when committing a crime.

The purpose of the person committing the crime of fraud to appropriate property is to desire to appropriate property. This purpose always exists before committing the act.

crime. It can be said that the purpose of appropriating property is a mandatory sign of the crime of fraud to appropriate property. However, the offender may have other purposes along with the purpose of appropriation or accept the purpose of appropriation of another accomplice, then the offender will also be prosecuted for criminal liability for the crime of fraud to appropriate property.

1.2. Theoretical issues on determining the crime of fraud and appropriation

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1.2.1. Concept of defining the crime of fraud and appropriation of property

Determination of crime is a very important issue in the process of solving a case.

Criminal law is the premise for the differentiation of criminal responsibility and the individualization of punishment in a fair and accurate manner, and at the same time serves as the basis for the application of preventive measures, determining the authority to investigate, prosecute, and try the agencies conducting the proceedings... contributing to the fight against and prevention of crime, protecting the law, protecting the socialist legal system, protecting the rights and legitimate interests of all citizens.

Correctly identifying crimes is the premise for the differentiation of criminal responsibilities and individualization of punishments in a fair and legally based manner. Incorrectly identifying crimes will lead to a series of negative consequences such as: not ensuring fairness based on the law, prosecuting innocent people, letting criminals escape, etc.

Defining crimes is one of the measures to bring the Criminal Code into social life, contributing to improving the effectiveness of the fight against crime. Defining crimes is a legal confirmation of the conformity between socially dangerous acts committed in objective reality and the signs in the corresponding criminal composition prescribed in the Criminal Code.

Determining a crime is a form of cognitive activity, an activity of applying criminal law to reach the objective truth on the basis of correctly and fully determining the specific details of the committed crime, correctly perceiving the content of criminal law regulations that stipulate the composition of a crime corresponding to the specific details of the crime by methods through certain stages [6, p.13].

The concept of crime determination can be said as follows: Crime determination is the determination of a specific act that has been performed and fully satisfies the signs of the criminal composition of which crime among the crimes prescribed in the Penal Code .

However, it is necessary to distinguish between determining the crime and deciding on the penalty. Deciding on the penalty is an important law enforcement activity in the criminal trial stage. Deciding on the penalty accurately and objectively is the basis for achieving the purposes of the penalty: punishing and educating, reforming the offender; preventing them from committing new crimes; deterring and preventing others in society. Only when the penalty is decided accurately can the purpose of the penalty be achieved, helping the convicted person to be aware of the fairness of the law and to see clearly their mistakes and errors and be determined to reform themselves to become useful citizens for society. A penalty decided too lightly compared to the nature and level of danger of the crime committed will give rise to the offender and others with an attitude of contempt for the law, while a penalty decided too severely will cause the convicted person, as well as others, to develop resentment and loss of faith.

Determining the penalty is an activity in the criminal trial stage carried out by the Court to propose appropriate measures to deal with the offender on the basis of criminal law provisions and proportionality to the nature and level of danger to society of the criminal act. To decide on the correct penalty, the activity of determining the crime must be correct.

When determining the crime, it is necessary to rely on the basic criminal composition. In cases where the law on a specific crime contains many penalty frameworks, after determining the crime, the prosecuting agencies must take the next step of determining which penalty framework the criminal act satisfies (basic, aggravating or mitigating). That is, in this case, the prosecuting agency has determined the scope of criminal responsibility for the offender. On that basis, the court will choose a specific treatment measure for the offender, such as declaring the defendant exempt from criminal responsibility, exempting from punishment or choosing a specific punishment for the defendant.

The crime of fraud to appropriate property is a specific type of crime stipulated in Article 139 of the Vietnamese Penal Code. A person is considered the subject of this crime when he/she meets the conditions of having full criminal capacity and being of age to bear criminal responsibility, and at the same time is a person who has committed an act stipulated in Article 139 of this Code with intentional fault, violating ownership relations.

From the theoretical basis for determining the crime mentioned above, combined with the provisions of the Vietnamese Penal Code on the crime of fraud to appropriate property, the concept of determining the crime of fraud to appropriate property can be given as follows: Determining the crime of fraud to appropriate property is the activity of applying criminal law and criminal procedure law by individuals and competent State agencies, conducted on the basis of collected documents and evidence to determine whether or not there is a consistency between the act of property appropriation that has occurred and the signs constituting the crime of fraud to appropriate property as prescribed in Article 139 of the Penal Code, as a premise for deciding on punishment and other criminal enforcement measures.

1.2.2. Characteristics of the crime of fraud and appropriation of property

- Determining a crime is a logical cognitive process between theory and practice, expressed in two aspects: determining and seeing whether the socially dangerous act committed is consistent with the signs of the specific criminal composition in the Penal Code and giving a certain assessment in terms of criminal law for the committed act.

- The process of determining crimes must strictly comply with the legal norms of the substantive law, which is the Penal Code, as well as the legal norms of the procedural law, which is the Criminal Procedure Code.

- Determination of crime is a form of law enforcement activity of the agencies conducting the proceedings (investigative agencies, prosecutors and courts) to concretize abstract criminal law norms into real life. On the basis of correctly and fully determining the details of the committed crime and fully and correctly perceiving the content of criminal law norms.

- Determination of crime as a form of practical activity in applying criminal law is carried out in the following 3 steps:

+ Step 1: Establish, review, and correctly evaluate the details of the case that occurred in objective reality.

For this step, the person determining the crime must evaluate the details of the case objectively, comprehensively, impartially, without prejudice, without speculation.

+ Step 2: Unified and accurate perception of the content of criminal law norms reflecting the signs of criminal composition of selective crimes.

The signs in the composition of crime stipulated in the Criminal Code are abstract, only stating in general terms the common characteristics to regulate the diverse real phenomena, requiring a process of deep and correct cognitive thinking about the content of the signs in the composition of crime. The person who determines the crime must evaluate himself on scientific and practical grounds so that it is convincing. In other words, it requires the person who determines the crime to have a level of criminal law.

+ Step 3: Select the correct corresponding criminal law norm to accurately and fully compare the signs of constituting the crime prescribed in the legal norm with the specific acts performed in reality. Thereby, draw a well-founded conclusion about the consistency between the actual act performed and the prescribed constituents. That conclusion must be presented in the form of a legal application document.

- Determining the crime of fraud to appropriate property is determining the crime for a specific type of crime - the crime of fraud to appropriate property.

In addition to the general characteristics of crime determination as a logical cognitive activity of humans, crime determination for the crime of fraud to appropriate property has its own characteristics related to the characteristics of the act of fraud to appropriate property occurring in objective reality and the provisions of the Vietnamese Penal Code on this crime.

To commit the act of fraud and appropriation of property, the offender uses deceitful tricks to gain the trust of the victim, making the victim believe that the fake is real and voluntarily give the property to the offender. The subject of determining the crime must compare and draw a conclusion on whether or not there is a consistency between the acts.

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