The Significance of the Regulation of Crimes in the Field of Land Management and Use in the Criminal Law

Transferring land use rights, allowing illegal change of land use purpose, having been disciplined but still violating [6, p. 400].

In our opinion, this definition is reasonable in that it is consistent with the provisions of Vietnamese criminal law, but from a legal science perspective, it has not highlighted the signs of the form, criminal liability capacity and fault element of the crime, but mainly describes the behavior of the objective side of the crime.

From the perspective of criminal law science, the concept of the crime of Violating regulations on land management must be considered on all three levels, corresponding to the full expression of the five basic signs (characteristics) of the crime as analyzed above. Therefore, in our opinion, this concept of crime is understood as the act of taking advantage or abusing one's position and power to illegally allocate, recover, lease, allow the transfer of land use rights, allow the change of land use purposes, violating the State's land management order, intentionally committed by a person with a position and power, falling into one of three cases: having been disciplined for this act but still violating, the land has a large area or is of great value or causes serious consequences.

* Crime of violating regulations on land use (Article 173).

According to Associate Professor, Dr. Nguyen Ngoc Chi, "The crime of violating regulations on land use is the act of encroaching or transferring land use rights in violation of State regulations on land management and use, causing serious consequences" [6, p. 397]. This definition has the advantage of clearly indicating the direct object that the crime violates, but the limitation is that it only describes some acts of the objective side of the crime and has not yet mentioned the signs of the subject of this crime. Therefore, in our opinion, from the perspective of criminal law science, this concept of crime should be understood as the act of encroaching on land or transferring land use rights, using land in violation of State regulations on land management and use, intentionally committed by a person with criminal liability capacity and of age to bear criminal responsibility, causing serious consequences.

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serious or has been administratively punished for this act or has been convicted of this crime, has not had his criminal record cleared and still commits the violation.

From the above concepts, we can point out the basic characteristics of crimes violating regulations on land management and crimes violating regulations on land use as follows:

Firstly, both crimes of violating regulations on land management and violations of regulations on land use are in the group of crimes of violating economic management order as prescribed in Chapter XVI of the Penal Code, therefore both violate the order of state economic management in general and land management in particular.

Second, if the crime of violating regulations on land management is the act of taking advantage or abusing one's position and power to illegally allocate, recover, lease, allow the transfer of land use rights, or allow the change of land use purposes, falling into the cases of "having been disciplined for this act but still violating", the land has a "large area", "large value" or "causes serious consequences"; then the crime of violating regulations on land use is the act of encroaching on land or transferring land use rights, using land contrary to the State's regulations on land management and use, "causing serious consequences" or "having been administratively sanctioned for this act or having been convicted of this crime, not having had the criminal record cleared but still violating".

Third, the crime of violating regulations on land management is committed by a special subject. In addition to the conditions of the ordinary subject regarding criminal liability capacity and age of criminal liability, the subject of this crime must also be a person with a position, authority, and power in land management. Meanwhile, on the contrary, the crime of violating regulations on land use is committed by an ordinary subject. However, there is one thing in common between these two crimes: they are both committed with the form of intentional fault; the offender knows that the act of violating the State's regulations on land management is dangerous to society, is aware of the consequences that may or will certainly occur, but still commits it.

1.2.2. The significance of regulating crimes in the field of land management and use in criminal law

As is known, land is an extremely valuable resource of each country. When talking about national sovereignty, it is impossible not to mention the territory, the legal basis of which is land. In our country, right from the beginning of the national reconstruction according to the Resolution of the 6th National Party Congress with the task of developing a multi-sector commodity economy, operating according to the market mechanism under the management of the State, the demand for land use of organizations and individuals is very large. Along with that, many negative issues have arisen in the process of land management and use, such as: improper land use, violations of regulations on land allocation, recovery, leasing, transfer of rights, change of land use purpose, land encroachment, etc. In fact, violations of regulations on land management and use (especially concentrated in large cities and urban areas) nationwide have been occurring more and more complicatedly, with sophisticated tricks, the consequences of the crimes are extremely serious, not only violating the economic management order of the State in general, but also affecting the rights and economic interests of organizations and individuals. Due to the dangerous nature of the behavior to society, it is really necessary to define it as a crime in the criminal law to combat and prevent it. Not only that, the sanctions imposed must also be strict to meet the requirements of the fight against crime.

When the socially dangerous nature of the behavior is significant, defined as a crime and subject to punishment in the Criminal Law, the criminal law becomes an effective tool to influence deviant behavior. At the same time, it affects the awareness of the people in general, creating a limit in their awareness of performing correct behaviors according to regulations and participating in the fight against illegal acts. Accordingly, those who violate the State's regulations on land management and use are considered criminals and must be subject to strict sanctions under the criminal law, which is punishment. This is the attitude of society towards illegal acts.

contrary to the norms and interests of society. Being punished is to ensure the strictness of the law, and at the same time ensure the fairness of society. Thereby, criminals have the conditions to reform and become useful people for society.

The regulation of crimes in the field of land management and use in criminal law is the basis for the State, through law enforcement agencies, to use legal tools to fight against crimes. The practice of investigation, prosecution and trial in recent years has shown that each type of crime has a different nature and level of danger to society, but in the end, no matter what the act is, they all cause certain damage to social relations protected by criminal law. They are negative social phenomena that require us to constantly fight, prevent and gradually eliminate them from social life.

The fight against crime in general, and crimes related to land management and use in particular, requires us to conduct it systematically and synchronously, while using many different measures, constantly complementing each other to promote the positive aspects and minimize the limitations and shortcomings of each measure. From there, we can best promote the effectiveness of the fight against crime. This is not the task of an individual or agency or organization, but includes the system of legislative, executive, and judicial agencies, to political and socio-political organizations, and especially important is the awareness of fighting against crime of each citizen; combined with the use of many measures, from education, persuasion to coercion, in which punishment is the most severe coercive measure.

Realizing that requirement, the first Penal Code of the period of renovation and national unification (1985) was born, regulating crimes of violating regulations on land management and protection (Article 180). Initially, a solid legal basis was established to strictly handle acts that violate the order of land management.

However, because the law stipulates that two types of acts are grouped into a common criminal offense, including violations of land management and violations of land protection. On the other hand, the law has not yet fully regulated new crimes related to land management order due to the negative aspects of the market economy, which has had a certain impact on the effectiveness of the fight against crime. In that situation, the requirement is to thoroughly implement the principle of individualizing acts and punishments, continue to perfect the structure of these crimes, and demonstrate the State's handling viewpoint on each type of crime. These two acts need to be built into two independent criminal offenses corresponding to two different crimes. Based on that requirement, the 1999 Penal Code was born to replace the 1985 Penal Code; The order of state management of land has been protected more comprehensively and fully by two laws: Article 173 (crime of violating regulations on land use) and Article 174 (crime of violating regulations on land management). The separate regulation of the two CTTPs here is the basis for regulating the signs in each CTTP that are most suitable to the characteristics and social danger of each criminal act and the corresponding punishment, and at the same time allows for further differentiation of these CTTPs within the scope of each crime. Considering and separating the basic CTTP, CTTP that aggravates or reduces criminal liability is also very important, contributing to the differentiation of criminal liability of each level of social danger of the act. Separating according to each level like that is the basis for us to propose appropriate forms and levels of sanctions. The more thorough the differentiation of criminal liability is, the more favorable the legal basis will be for the individualization of criminal liability in trial practice.

Because of the above requirements, the regulation of crimes in the field of land management and use in the Criminal Code is extremely correct and necessary, meeting both theoretical and practical requirements.

1.3. OVERVIEW OF THE HISTORY OF VIETNAMESE CRIMINAL LAW REGULATIONS ON CRIMES IN THE FIELD OF LAND MANAGEMENT AND USE

1.3.1. The period from the August Revolution in 1945 to before the promulgation of the 1985 Penal Code

The history of Vietnamese criminal legislation in general, and the promulgation of criminal law regulations on crimes in the field of land management and use in particular, is closely linked to the development of the country's criminal policies.

In the early days of the establishment of the Democratic Republic of Vietnam, our country had to face many difficulties and challenges due to famine, illiteracy, foreign invaders, especially the exhausted economy after the war. To stabilize the country, gradually build a new society, restore the economy and protect the achievements of the revolution, on October 10, 1945, President Ho Chi Minh signed Decree No. 47/SL allowing the temporary application of some documents of the old law that did not contradict the principle of independence of Vietnam and the democratic republic. Thus, the basic characteristic of this period was the existence of two types of new and old criminal law documents, constituting a system of legal documents reflecting the differentiated criminal policy of our State. In addition to promulgating a number of new criminal law documents, the Government still allows the continued application of a number of provisions of the old criminal law, in order to maintain social order and stability in areas where the State has not yet promulgated documents to regulate, including the application of imperial and feudal laws: in the North, the Annam criminal law is applied, in the Central region, the Hoang Viet criminal law is applied, and in the South, the amended law is applied.

President Ho Chi Minh's assessment of the legal policy of the People's Democratic State during this period: "Before, we were ruled by an autocratic monarchy, then by an equally autocratic colonial regime, so our country did not have a constitution. Our people did not enjoy democratic freedom. We must have a democratic constitution" [12, p. 16]. Consistent with that policy, the Party and State decided to promulgate the first Constitution.

with legal policies suitable to the actual historical situation, contributing to protecting national independence, protecting the interests of the working class and working people, building a stable and developed country.

During this period, in order to have a legal basis for the fight against economic crimes, the President issued a number of important decrees such as Decree No. 26/SL dated February 25, 1946 on the punishment of the crime of destroying public property, Decree No. 223/SL dated November 17, 1946 regulating the prosecution of bribery and embezzlement of public funds. The above crimes partly contained violations in the field of land management and use, which were later defined as specific crimes.

After the Dien Bien Phu victory in 1954, our country was temporarily divided into two regions with two different political regimes. During this period, our Party and State issued a series of legal policies, including regulations to punish and deter acts of intentionally violating State regulations on economic management; set out a number of immediate tasks: healing the wounds of war, restoring the national economy, reducing difficulties in people's lives in accordance with the new situation of the country, with the motto: restoring the economy, restoring and developing agriculture, restoring industry and commerce, focusing on people's livelihood, serving people's production, serving the construction of the country (1955 Economic Resolution of the National Assembly).

Based on the new situation and tasks based on the summary of experiences in the fight against counter-revolutionaries; at the same time, to suppress and punish plots and acts of sabotage or damage to the property of the State, cooperatives and people, hindering the implementation of policies and plans for economic and cultural construction, protecting the restoration and development of the economy and society, and transforming socialism, on June 15, 1956, the President issued Decree No. 267/SL to carry out those tasks. The Decree affirmed:

The economic and cultural construction of the Democratic Republic of Vietnam is to serve the interests of the entire people. Whoever sabotages that cause is harming the people. To contribute to protecting the cause

To build the economy and culture, this decree is now issued to punish plots and acts of sabotage or damage to the property of the State, cooperatives and people, and to hinder the implementation of policies and plans for economic and cultural development [33, Article 1].

Then, to ensure the rule of law, protect the economic regime in general, and the land law policy in particular, the 1959 Constitution was born, stipulating: "mines, rivers, forests, wastelands, and other resources that the law stipulates belong to the State, are owned by the entire people [44, Article 12]; "The State, in accordance with the law, protects the ownership of land and other means of production of farmers" [44, Article 14]. Not stopping there, this viewpoint was further affirmed and recognized by our Party and State in a more comprehensive and comprehensive way in the 1980 Constitution, that is:

Land, forests, mountains, rivers, lakes, mines, underground natural resources... are all owned by the people [45, Article 19]

The State shall uniformly manage land according to a general plan, in order to ensure that land is used reasonably and economically. Collectives and individuals who are using land shall continue to use it and enjoy the fruits of their labor in accordance with the provisions of law. Collectives or individuals using land shall be responsible for protecting, enriching and exploiting it according to the State's policies and plans. Land reserved for agriculture and forestry shall not be used for other purposes without permission from a competent State agency [45, Article 20].

At this point, the State no longer recognizes and "protects land ownership rights" of farmers.

The period from 1960 to 1975 was the period when the North simultaneously carried out the construction of socialism, while at the same time being a solid rear base to support the South in the resistance war against imperialism, especially in organizing and implementing the first 5-year plan (1960 - 1965). Assessing the results of these tasks, our Party and State emphasized the work of organization and management.

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