(2) In addition to the injured party, each entrepreneur, association and agency described in Article 8, paragraph 2, Nos. 1, 2 and 4 of the Law on Combating Unfair Competition has the right to submit a request for sanction under paragraph 1 ”.
Or Article 338 on “ Property Penalties and Extended Restitution ” stipulates:
“ (1) In the cases of Article 332, also in connection with Articles 336 and 337, Article 73d applies if the person committing the crime commits it professionally or as a member of a gang that has joined together to commit such crimes in succession.
(2) In the cases of Article 334, also in connection with Articles 336 and 337, Articles 43a and 73d apply if the perpetrator commits the crime as a member of a gang that has joined together to commit such crimes consecutively. Article 73d also applies if the perpetrator commits the crime professionally .
Thus, comparing the provisions of the German and Vietnamese Federal Criminal Codes on the issue under study shows that:
Firstly , like the Russian Federation, the People's Republic of China, and Japan, the German Federal Criminal Code does not stipulate two sections: Section A - Crimes of corruption and Section B - Other crimes related to positions like Chapter XXI of the 1999 Criminal Code, but is similar to the previous 1985 Vietnamese Criminal Code.
Second , similar to the Russian Federation, the People's Republic of China, and Japan, the German Federal Criminal Code does not define the concept of crimes related to positions like the Vietnamese Criminal Code. In addition, only the Criminal Codes of the Russian Federation and Vietnam explain the concept of persons with positions and powers.
Third , regarding other crimes related to positions, the German Federal Criminal Code has provisions similar to the Vietnamese Criminal Code regarding the crimes of bribery, bribery brokerage, and disclosure of work secrets, but does not regulate other crimes such as the crime of lack of responsibility causing serious consequences, the crime of taking advantage of influence over people in positions of power for personal gain; etc.
In addition, for bribery crimes, German Federal lawmakers have quite comprehensively regulated these crimes in various fields, showing the connection between the acts of receiving and giving bribes: the crime of receiving and giving bribes in the business field (Article 299), particularly serious cases of receiving and giving bribes in business transactions (Article 300) in addition to handling the general act of bribery (Article 334), special cases of receiving and giving bribes in general (Article 335) or in addition to the act of giving bribes, German Federal lawmakers also handle the act of giving benefits (Article 333) which the Vietnamese Penal Code has not yet defined as an independent crime. In particular, Article 358 on “ Accompanying consequences ” stipulates that along with a sentence of at least six months of imprisonment for a crime under Articles 332, 335, 339, 340, 343, 344, 345, paragraphs 1 and 3, Articles 348, 352 to 353b, paragraph 1, Articles 355 and 357, the Court may deprive the person of the ability to hold certain positions (Article 45, paragraph 2).
Chapter 3
TRIAL PRACTICE IN HO CHI MINH CITY AND RECOMMENDATIONS FOR IMPROVING THE CRIMINAL CODE
VIETNAM ON OTHER OFFICE-RELATED CRIMES
3.1. PRACTICE OF TRIAL OF OTHER OFFICE-RELATED CRIMES IN HO CHI MINH CITY
3.1.1. Overview of the economic, political and social situation in Ho Chi Minh City [10]
Currently, the average population in the city in 2012 is estimated at 7,750.9 thousand people, an increase of 3.1% compared to 2011; the urban area is 6,433.2 thousand people, an increase of 2.9%. The mechanical growth rate is 18.9‰; the natural population growth rate is 9.6‰.
In 2012, the city's economy continued to grow but at a slower rate than in 2011. Gross domestic product (GDP) increased by 9.2%; Added value of the agricultural, forestry and fishery sector increased by 5.1%; the industrial and construction sector increased by 8.3%; and the service sector increased by 10.0%. The industrial production growth rate in 2012 increased by 5.1% compared to 2011, of which the mining industry decreased by 34.3%; the processing and manufacturing industry increased by 4.9%.
In 2012, the total investment capital in the area is estimated to be 217,073 billion VND, an increase of 9.1% compared to the same period. Of which: Total investment capital for basic construction is estimated to be 177,667 billion VND, an increase of 9.2%. Investment capital for construction and major repairs from the city budget is estimated to be 16,664.7 billion VND, an increase of 2.2%. The whole city has 23,708 newly registered enterprises, a decrease of 2.5% compared to the same period in 2011.
In addition, compared to December 2011, the consumer price index increased by 4.07%, much lower than the increase of the previous two years, and also the year with the lowest increase since 2004. The average consumer price index of
The whole year 2012 compared to the average price in 2011 increased by 7.74%. The total import and export turnover of goods of enterprises in the city in 2012 reached 47,702.9 million USD; Of which, export reached 21,567.2 million USD, increased by 6.3%, import reached 26,135.8 million USD, decreased by 4.6%.
Education situation at the beginning of the 2012 - 2013 school year: The whole city has 800 kindergartens, 16,309 teachers, an increase of 6%, 292,905 children attending nurseries and kindergartens, an increase of 2.3%; the whole city has 917 general schools, 45,115 teachers, an increase of 2.8%, the number of students at the beginning of the school year is 1,046.8 thousand students, an increase of 2.4%; the number of students in literacy classes is 1,804 people, an increase of 11.4%: junior high school is 4,132 people, a decrease of 23.4%; high school is 28,186 people, a decrease of 17.3%.
In addition, in the first 11 months of 2012, economic zones in the city attracted workers and created jobs for 289.4 thousand people, down 0.9% compared to 2011. The number of new jobs created in the year was 123 thousand, down 4%. The unemployment rate in 2012 was 4.9%. In the city, 112.9 thousand people received unemployment benefits from January 3 to December 7, 2012, up 29% compared to the same period, with a total amount of 857.5 billion VND. 64.6 thousand people received job counseling and referrals; 1.3 thousand people received vocational training support, with a support amount of 130.5 million VND.
In 2012, the world and regional economic and political situation had many complicated developments that affected the domestic situation and Ho Chi Minh City. Specifically, launching 3 peak periods of attack and suppression of all types of crimes to protect security and order; at the same time, promoting the implementation of specialized plans to combat each type of crime. The city police have innovated in the work of undercover patrols, focusing on key routes and areas with complex criminal issues, border areas and areas in need of transformation; implementing coordination between many forces in the work.
Coordinated anti-racing, patrol, control, administrative inspection to ensure traffic safety and social order in the city. The number of criminal cases was reduced by 7.16% compared to 2011, investigated and solved 3,675 criminal cases, arrested 4,679 subjects (up 4.51% compared to 2011); dismantled 732 criminal gangs, arrested 1,778 criminals (of which 106 projects were established and solved, arresting 427 subjects) operating in an organized, professional manner, discovered many gangs of murder, robbery, snatching, and theft [65].
In particular, the City Police have received and investigated 32 cases of 65 subjects intentionally violating, embezzling, forging documents, creating records and using fake invoices to settle accounts, defrauding and appropriating State assets; discovered
1,277 economic violations brought the total number of investigations to 1,492; 1,268 cases with 1,244 subjects were investigated; property damage was about 1,691 billion VND; over 28.7 billion VND was paid to the State budget, the value of recovered assets was 67.6 billion VND, and the value of goods and exhibits was about 87 billion VND.
In the field of traffic, the City Police have completed the targets of reducing 10% of traffic accidents in all 3 aspects and 20% of traffic jams lasting over 30 minutes in the " Traffic Safety Year 2012 "; people's awareness of obeying traffic laws has been raised, traffic jams have been significantly reduced; the problem of young people gathering to use motorbikes to speed, weave, and perform on the road at night has been significantly controlled and strictly handled, proactively taking preventive measures and promptly detecting and handling illegal racing cases. Accordingly, road traffic accidents have been reduced in all 3 aspects, with 888 traffic accidents occurring, killing 786 people and injuring 335 people (-132 cases = 13%, -82 deaths = 9%, -161 injuries = 32%).
3.1.2. Trial situation of other crimes related to positions in Ho Chi Minh City
Research on the practice of trying other crimes related to positions in Ho Chi Minh City over a period of 5 years (2008 - 2012) shows that:
Firstly , the total number of cases and total number of defendants committing other crimes related to positions in the period of 05 years (2008 - 2012) in Ho Chi Minh City are as follows:
Table 3.1. Total number of cases, total number of defendants committing other crimes related to positions in the period of 05 years (2008 - 2012) in Ho Chi Minh City
Year
Thing
2008 | 2009 | 2010 | 2011 | 2012 | ||||||
Number of cases | Number of defendants | Number of cases | Number of defendants | Number of cases | Number of defendants | Number of cases | Number of defendants | Number of cases | Number of defendants | |
285 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 |
286 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 |
287 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 |
288 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 |
289 | 15 | 23 | 08 | 15 | 01 | 02 | 02 | 09 | 04 | 11 |
290 | 04 | 13 | 01 | 03 | 0 | 0 | 01 | 04 | 02 | 07 |
291 | 02 | 06 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 |
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Source: Office of Ho Chi Minh City People's Court
The specific developments of the total number of cases and the total number of defendants committing other crimes related to positions during the 5-year period (2008 - 2012) in Ho Chi Minh City are shown in the following chart:
0 0 0
0 0 0
0 0 0
0 0 0
0 0 0
20
15
10
5
0
2008 2009 2010 2011 2012
Article 285 Article 286 Article 287 Article 288 Article 289 Article 290 Article 291
Table 3.1. Total number of cases tried by the Court regarding other crimes related to positions in the 5-year period (2008 - 2012) in Ho Chi Minh City
0 0 0
0 0 0
0 0 0
0 0 0
0 0 0
25
20
15
10
5
0
2008 2009 2010 2011 2012
Article 285 Article 286 Article 287 Article 288 Article 289 Article 290 Article 291
Table 3.2. Total number of defendants tried by the Court for other crimes related to positions during the 5-year period (2008 - 2012) in Ho Chi Minh City
Second , the total number of cases and total number of defendants brought to trial by the Court for other crimes related to positions in Ho Chi Minh City during the 5-year period (2008 - 2012) are as follows:
Table 3.2. Total number of cases, total number of defendants committing other crimes related to positions in the period 2008-2012 in Ho Chi Minh City
Thing
Total | ||
Number of cases | Number of defendants | |
285 | 0 | 0 |
286 | 0 | 0 |
287 | 0 | 0 |
288 | 0 | 0 |
289 | 30 | 60 |
290 | 08 | 27 |
291 | 02 | 06 |
Total | 40 | 93 |
Source: Office of Ho Chi Minh City People's Court
Third , the penalties and measures of exemption from criminal liability and exemption from penalties have been applied by the Court to defendants for other crimes related to positions in Ho Chi Minh City within a period of 05 years (2008).
- 2012) as follows:
Table 3.3. Penalties, measures of exemption from criminal liability, and exemption from penalties applied by the Court to defendants for other crimes related to positions within 05 years (2008 - 2012) in Ho Chi Minh City
Thing
Penalties apply | Disclaimer criminal | Exemption from punishment | ||||
Suspended sentence | Prison has duration | Shared prison close | Death penalty | |||
285 | 0 | 0 | 0 | 0 | 0 | 0 |
286 | 0 | 0 | 0 | 0 | 0 | 0 |
287 | 0 | 0 | 0 | 0 | 0 | 0 |
288 | 0 | 0 | 0 | 0 | 0 | 0 |
289 | 0 | 60 | 0 | 0 | 0 | 0 |
290 | 0 | 27 | 0 | 0 | 0 | 0 |
291 | 0 | 06 | 0 | 0 | 0 | 0 |
Source: Office of Ho Chi Minh City People's Court
Fourth , in addition, some personal characteristics of the defendants are as follows:
Table 3.4. Some personal characteristics of defendants brought to trial by the Court for other crimes related to positions within 05 years
(2008 - 2012) in Ho Chi Minh City
Thing
Sex | Age medium | Criminal's identity | ||
Male | Female | |||
285 | 0 | 0 | 0 | 0 |
286 | 0 | 0 | 0 | 0 |
287 | 0 | 0 | 0 | 0 |
288 | 0 | 0 | 0 | 0 |
289 | 49 | 11 | 43.5 | 60 defendants are first-time offenders |
290 | 24 | 03 | 45.7 | 27 defendants were first-time offenders |
291 | 06 | 00 | 53.2 | 06 defendants committed crimes for the first time |
Source: Office of Ho Chi Minh City People's Court