The recommendations from the application of criminal law of people’s court of Ho Chi Minh city for the abuse of the trust in appropriating property

Tạp chí Khoa học Viện Đại học Mở Hà Nội 51 (01/2019) 51-60 51 THE RECOMMENDATIONS FROM THE APPLICATION OF CRIMINAL LAW OF PEOPLE’S COURT OF HO CHI MINH CITY FOR THE ABUSE OF THE TRUST IN APPROPRIATING PROPERTY Le Duy Tuong*† Date received the article: 8/7/2018 Date received the review results: 8/1/2019 Date published the article: 28/1/2019 Abstract: Over the past time, the practical application of criminal law of Ho Chi Minh City People's Court for the abuse of trust in appropriating assets has shown that there are still difficulties, limitations and obstacles affecting effective application of criminal law. This article analyzes some limitations, difficulties and obstacles in application of criminal law of Ho Chi Minh City People's Court for the abuse of trust in appropriating property, thereby suggest recommendations to ensure proper application of criminal law for crimes of misuse of trust in appropriating property. Keywords: Apply criminal law; Practice; Crime; Abuse of trust in appropriating property; The People's Court; Ho Chi Minh City. 1. Overview of the Court's application of criminal law to the abuse of trust in appropriating property According to the prevailing viewpoint, applying the law is one of the four forms of law implementation: compliance with the law; law enforcement; use law and application of law1.Curriculum State theory and Law of the University of Law defines: Applying the law is a form of law * Hung Yen City People's Procuracy 1 Hanoi Law University, State Theory and Law Curriculum, Police Publishing House, 2011, p 185. 2 Hanoi Law University, State Theory and Law Curriculum, Police Publishing House, 2011, p.186 implementation in which the state through state agencies or competent authorities organize for legal entities to implement the regulations by law or by themselves according to the provisions of the law to make decisions that give rise to, change, suspend or terminate specific legal relations2.‡ From the above definition, it can be defined: Applying the criminal law of the court for the abuse of trust in 52 Nghiên cứu trao đổi ● Research-Exchange of opinion appropriating property is the form of law implementation, in which the court on behalf of the state based on the legal provisions in general and criminal law in particular create decisions or judgments that give rise to, change or terminate criminal legal relations in each specific criminal case. 2. Practical application of criminal law for the abuse of trust in appropriating property In the period 2014-2018, the Ho Chi Minh City People's Court tried 11 criminal cases to abuse the trust of appropriating assets, of which 8 cases were appealed or protested. In 8 cases of appeals and protests, there are 5 cases of keeping the first instance verdict, only 3 cases of being punished. Studying cases that have been sanctioned by the Appellate Panel reveals some limitations and problems as follows: 2.1. The Court of First Instance has not yet reviewed all extenuating circumstances Study the contents of the case Hoang Van T showed that: T is an employee of the pawnshop at No. 11 DDN, Ward Q, District E, Ho Chi Minh City, he took of the pawnshop owner (Vu Xuân T) an used AirBlade motorbike, an used Iphone 5 mobile, an used Ipad tablet and VND 25 million in cash. The written conclusions of appraisal No. 152/HDĐG dated December 17, 2014 valuing Honda 3 Extracted the first instance criminal judgment No. 26/2018/HSST dated April 5, 2018 by Ho Chi Minh City People's Court. AirBlade motorcycles worth VND 25,000,000; Iphone 5 mobile worth 6,000,000 VND; Ipad tablet is worth VND 6,500,000. The total value of assets that accused Hoang Van T appropriated from Mr. Vu Xuan T was VND 62,500,000. The Court of First Instance has considered accepting extenuating circumstances: The accused has no criminal record; first offense; sincere declaration; repent. Since then, the Court of First Instance applies Point p Clause1 and Point d Clause 2 Article 46; Article 33; Article 45 of the 1999 Penal Code states that Hoang Van T is guilty of abusing trust in appropriating assets and punishing Hoang Van T for 3 years in prison3.* Hoang Van T has an appeal letter to mitigate the penalty. The Appellate Court has stated that, in addition to the circumstances that the First Instance Trial has recorded, defendant Hoang Van T has other extenuating circumstances, including: the defendant's family situation hard; after committing a crime, the defendant donated kidneys to save people and was confirmed by PX General Hospital. On the other hand, studying the situation of the accused family shows that, accused was born in 1986 in Nam Ha, registered as a permanent resident in X district of Ninh Binh province. The mother of the accused died when the defendant was still in his childhood, the Nghiên cứu trao đổi ● Research-Exchange of opinion 53 accused father was a wounded soldier. Hoang Van T was educated in high school to grade 11 and then went to Ho Chi Minh City to work as a hired laborer. The appropriation of 62,500,000 VND was partly due to the pawner's fault, Mr. Vu Xuan T lacked inspection and supervision, the operation process of the business establishment, created many loopholes, it is stimulated Hoang Van T had an intention to commit a crime. Failure to accurately assess the extenuating circumstances, as well as fail to clarify the causes and conditions leading to criminal acts has led to the inaccuracy when assessing the nature and the danger of criminal acts, so the punishment that the First Instance Court applies to Hoang Van T is too heavy, not commensurate with the nature and severity of the offense, so it does not meet the purpose of the penalty. From this judgment, the Court of Appeal accepted the appeal, reducing the penalty for T from 3 years in prison to 2 years in prison.4* The case of Phan Thi Thanh T is also a case where the court has not fully evaluated the facts of the case. The content of the case is Phan Thanh T entrusted by Mrs. Nguyen Thi Tuyet M to drive motorbike to the parking. Phan Thanh T took the motorbike to sell for VND 10,000,000 and spent all the money and left for her hometown in Binh Thuan. 4 Criminal appellate judgment No. 238/2018/HSPT June 12, 2018 by Ho Chi Minh City People's Court. Nguyen Thi Tuyet M could not contact Phan Thanh T and declare to the police. 10 days later, afraid of being arrested, Phan Thanh T redeemed his motorbike and returned it to Ms. M. Conclusion of asset valuation No.24 dated 19/01/2017 of the Property Valuation Council of Thu Duc district , the motorbike that Phan Thanh T took away to sold for VND 25,592,000. The first instance verdict No. 220/2017/HSST on July 13, 2017 of Thu Duc District People's Court, Ho Chi Minh City accused the defendant of guilty of abusing the trust in appropriating assets. The Trial Panel have applied Point a, Clause 1, Article 140; Points h and p, Clause 1, Article 46 of the Penal Code for punishing defendant Phan Thanh T 10 months in prison5. Phan Thanh T made an appeal letter. The Appellate Trial Panel has judged that the Court of First Instance has assessed the extenuating and applicable circumstances for Phan Thanh T. However, the Court of First Instance has not yet fully evaluated the Phan Thanh T's extenuating circumstances were applied. Phan Thanh T is a demobilized soldier, her family is in a difficult situation, so she transgresses temporarily. After committing the crime, Phan Thanh T redeemed the motorbike and returned it to the victim. Thus, the consequences of criminal acts have been completely overcome. In this case, Phan Thanh T has just declared his sincerity 5 Extracted the first instance judgment of 220/2017/HSST on July 13, 2017 of the People’s Court of Thu Duc District, Ho Chi Minh City 54 Nghiên cứu trao đổi ● Research-Exchange of opinion and repented, so there is a basis to reduce her punishment. On that basis, the Appellate Trial Panel accepted the appeal, reducing the penalty for T from 10 months to 8 months in prison 6.* The case of Pham Thi Bao Tr guilty of abusing the trust in appropriating assets is also a case that has not fully evaluated the circumstances of the case. The contents of the case are as follows: From June to August 2014, taking advantage of many loopholes management process of VDTT preschool under QT education joint stock company, when collecting fees, Pham Thi Bao Tr has only reported to Mrs. Hoang A, the legal representative of the company a half of the fees paid by each parent, and the other half has been appropriated. In addition, Pham Thi Bao Tr also declared false invoice to repair and purchase equipment. The total amount of money appropriated is VND 184,236,000. The Trial Panel has applied point a, clause 2, Article 140 of the Criminal Code 1999, amended and supplemented in 2009; Point b, s Clause 1 Article 51, Clause 2 Article 51 Criminal Code 2015, amended and supplemented in 2017 sanctioned Pham Thi Bao Tr 2 years and 6 months in prison7.†The defendant has an appealed letter for a mitigation of the penalty and asked for a suspended sentence because of difficult family circumstances. The 6 Criminal appellate judgment No. 509/2017/HSPT September 22, 2017 of the Ho Chi Minh City People's Court. Court of Appeal said: The accused has good personalities, the attitude of sincere declaration, repentance, has voluntarily overcome the whole amount of appropriation before prosecuting the case, the victim has a petition letter for a mitigation of the penalty for the accused. In addition, accused husband of the defendant participated in the revolution, was awarded many medals. The accused has a difficult family situation, has small children; The defendant has a clear residence, in the process of bail, the defendant has well abided by the state law. The accused has a stable job and has small children so it is deemed unnecessary to impose imprisonment penalties, suspended sentences for the accused also achieve the purpose of education and prevention. From the above judgment, the Appellate Trial Panel shall apply Point d, Clause 2, Article 140 of the Criminal Code of 1999, Point b and s, Clause 1, Clause 2, Article 51, Clause 1, Clause 2, Article 65 of the Criminal Code 2015 , amended and supplemented in 2017 to sanction the accused Pham Thi Bao Tr 2 years and 6 months of suspended sentence, the probationary period is 5 years from the date of declaration appellate judgment. Thus, from all three cases can be seen, although, the Basic Instance Trial Panel has correctly applied the facts of 7 Extracted the criminal judgment of first instance No. 09/2018/HSST on January 22, 2018 of the People's Court of District 7, Ho Chi Minh City. Nghiên cứu trao đổi ● Research-Exchange of opinion 55 the case to decide the penalty, so basically, the penalty is decided to be commensurate with the nature and extent of the offense. However, some circumstances have not been evaluated comprehensively by the Trial Panel, especially the circumstances of the family situation and the offender's identity. In addition, the issues related to the causes and conditions of specific offenses have not been clarified by the court to create the most complete, comprehensive and clear picture of the crime case from It has the most complete and accurate awareness of the offender's identity and related circumstances in order to provide an accurate and most appropriate penalty for the nature and seriousness of the offense. The judgments that have been accepted to appeal and to be corrected for the first instance by the Trial Panel show a tendency that the first instance judgments are in the direction of applying a more severe penalty than the dangerous level of offense. Therefore, all three first- instance judgments are modified by the Appellate Trial Panel in the direction of mitigating penalties. In which 1 sentence reduced from 3 years in prison to 2 years in prison; 1 sentence reduced from 10 months in prison to 8 months in prison 8 Resolution No. 01/2013 / NQ-HDTP dated November 1, 2013 of the Council of Judges of the Supreme People's Court guiding the application of Article 60 of the Criminal Code on suspended sentences; Resolution No. 02/2018 / NQ-HDTP dated May 15, 2018 of the Council of Judges of the Supreme People's Court guiding and 1 sentence retained the penalty level for 2 years and 6 months in prison but for suspended sentence. 2.2. The Court of First Instance has not yet applied the suspended sentence Suspended sentences are measures of exemption from conditional imprisonment, which are applied by the Court to offenders who are sentenced to no more than 3 years, based on the offender's identity and extenuating and considered circumstances see no need to obey imprisonment.8*A suspended sentence is a regime that both demonstrates the humanity of Vietnam's Criminal Law and works to encourage offenders to self cultivate, practice and educate in the community with active support of the family, agencies and society. In addition, the suspended sentence is also of great economic significance, helping to save a lot of money to renovate and educate offenders of sentence execution in prisons9.† The application of a suspended sentence brings many benefits both to the state as well as to the offenders, so the Supreme People's Court continuously has documents guiding the application of suspended judgments to help the People's the application of Article 65 of the Criminal Code on suspended sentences. 9 Nguyen Van Buong, Regulation of suspended sentence according to the Vietnamese criminal law from practice in Central and Central Highlands, Doctoral thesis thesis, Academy of Social Sciences, 2017, page 41. 56 Nghiên cứu trao đổi ● Research-Exchange of opinion Court apply properly use this regime to both ensure the interests of offenders and bring benefits to the State. Although the Supreme People's Court just issued Resolution No. 02/2018 / NQ-HDTP dated May 15, 2018 of the Council of Judges of the Supreme People's Court guiding the application of Article 65 of the Criminal Code on suspended sentence, however, this Resolution takes effect from July 1, 2018. Therefore, the above cases apply the guidance in Resolution No. 01/2013 / NQ-HDTP dated November 1, 2013 2013 of the Supreme People's Court of Judges instructed the application of Article 60 of the Criminal Code on suspended sentences. Under the guidance of this Resolution, many of the accused of the three appellate cases mentioned above satisfy the conditions for suspended sentence and should have been convicted by the offenders. For example, the case of Pham Thi Bao Tr, although the Court of First Instance sentenced 2 years and 6 months to imprisonment, however, the Appellate Panel corrected the sentence, sentenced the accused to 2 years and 6 months. suspended sentence. In our opinion, the court's decision to impose a suspended sentence on the accused Pham Thi Bao Tr is completely satisfactory, because she satisfies all 5 conditions stated in Resolution No. 01/2013/NQ- HDTP as : Imprisoned for no more than 10 Clause 1 Article 2 Resolution No. 01/2013 / NQ-HDTP dated November 1, 2013 of the Council of Judges of the Supreme People's three years for less serious offenses, serious offenses, very serious offenses; Having good personalities; There are specific, clear residences; There is no aggravation of criminal liability; Being able to self-reform and if not arresting them, serving their imprisonment penalties does not adversely affect the fight against crime, especially corruption crimes10.*The defendant Pham Thi Bao Tr also does not fall under the cases that the Supreme People's Court instructs that he will not be entitled to suspended sentence in Clause 2, Article 2 of Resolution No.01/2013/NQ-HDTP dated November 1, 2013 of The Council of Judges of the Supreme People's Court guides the application of Article 60 of the Criminal Code on suspended sentences. These facts are basically easily identifiable, however, on the condition that "Being able to self-transform and not arrest them to obey their imprisonment does not adversely affect the defense of the defense and anti-crime "is a condition that is not easily perceived. This is a barrier that many trial councils did not decide to defend the suspended sentence. The study of 8 cases of appeal shows that all 8 defendants in these cases have applications for mitigating penalties, of which 4 defendants proposed suspended sentences. However, among the four defendants who requested a suspended sentence, the Court of Appeal only Court guiding the application of Article 60 of the Criminal Code on suspended sentence. Nghiên cứu trao đổi ● Research-Exchange of opinion 57 considered one accused sentence (25%). For example, the case study of Pham Thi Minh N taking advantage of the assignment of cashier to Lotte Mart Go Vap supermarket, she knew that payment data of probationary workers were not saved in supermarket data. So when paying for the guest, N issued the payment in the mode of internship workers to appropriate the sale amount. Up to the time of detection, from June to August 2017, N has appropriated the total amount of VND 45,665,000. The first instance verdict states that N is guilty of abusing the trust in appropriating property; Pursuant to Clause 1, Article 140 of the Criminal Code of 1999; Points b and s, Clause 1 and Clause 2, Article 51; Point g, Clause 1, Article 52; Article 38 Criminal Code 2015 punishes 6 months imprisonment for defendant Pham Thi Minh N. She filed a petition to mitigate the penalty and asked for a suspended sentence11.* The Court of Appeal said that the Court of First Instance applied extenuating circumstances such as sincere declaration and repentance; compensated for the victims; The accused has no criminal record. However, there are different views between the Procuracy and the Court. The Procuratorate said that Pham Thi Minh N's behavior does not fall into multiple crimes. However, the Appellate Trial Panel judged, because Pham Thi Minh N was only assigned to charge customers 11 Criminal judgment of first instance No. 27/2018 / HSST dated March 16, 2016 of every Saturday and Sunday, so every time the accused appropriated the supermarket's money was not connected. about time, the accused's behavior satisfies the "Crime many times" situation. In our opinion, this judgment of the Trial Panel is not satisfactory. The basic difference between continuous crime and crime many times it is: continuous crime is a crime where objective behavior is continuous, including many acts of the same type that occur next to each other in time, invading a social relationship and are dominated by the intention guilty whereas repeated offenses are cases where the offender has committed a crime many times without previous treatment. Considering the behavior of Pham Thi Minh N, she is assigned the cashier to the weekends. Taking advantage of loopholes in the management process of the supermarket, each time performs her duties, Pham Thi Minh N uses such deceitful behavior as issuing payment invoices in the regime of trainees for appropriating money. Here, considering the nature of N's work, she is only assigned to carry out the cashier duty on the weekends so every time she performs the task, N will perform the act of appropriating property. This case is completely different in case N is assigned to work as a cashier on consecutive days of the weekfrom June to August 2017, but at the end of the week N commits an offense. This case will be considered to the People's Court of Go Vap District, Ho Chi Minh City. 58 Nghiên cứu trao đổi ● Research-Exchange of opinion be committed in a discontinuous manner. In case of N, she is only assigned to perform tasks on the weekends, every time she performs the task, N will perform the same type of offense, all of which are governed by the same item target of crime. Therefore, along with the principle of benefiting the accused, in this case, it is necessary to determine that the offense of N belongs to a continuous crime, not a crime many times. On the other hand, considering the conditions of Pham Thi Minh N, she has all the conditions to sentence a suspension under the guidance of Resolution No. 01/2013/NQ-HDTP of November 1, 2013 of the Judges' Council of Supreme People's Court (Now it is the Resolution No. 02/2018/NQ-HDTP dated May 15, 2018 by the Judges' Council of the Supreme People's Court guiding the application of Article 65 of the Criminal Code). In this case, N was sanctioned for 6 months in prison, however, after committing the crime, N was sincere declaration, repentance and she has compensated all the money appropriated, N has no criminal record, circumstances of difficult families, divorced parents; the accused must raise his elderly mother and his terminally ill brother; The accused has a clear residence. In this case, the Appellate Court should accept the appeal and impose a six-month sentence but the suspended sentence. The suspended sentence against the accused N has just met the purpose of punishment, good expression of humanitarian policies of criminal law, helping the accused to take care of their elderly mother, terminally ill brother, at the same time, it helps to save money for execution of imprisonment. 3. Recommendations to ensure proper application of criminal law Proper application of criminal law is the best guarantee of the adjustment effect of criminal law, thus contributing to ensuring basic rights and interests of offenders. In order to ensure proper application of criminal law for the abuse of trust in appropriating property, in our opinion, it is necessary to perform some following solutions well: Firstly, it is necessary to continue to improve criminal law and strengthen the explanation and guidance of criminal law. The 2015 Penal Code, amended in 2017, has made many progress, overcoming many of the limitations of the Criminal Code in 1999, however, some provisions in the 2015 Penal Code, amended in 2017 still not specific, clear, causing difficulties in the application process. For example, the provision "considers that there is no need to arrest the imprisonment penalty" in paragraph 1 of Article 65 of the Criminal Code 2015, the amendment in 2017 on suspension is quite general, abstract, and greatly depends on the subjectivity of members of the Trial Panel. This is a huge obstacle to applying suspended sentence in trial practice. Therefore, it is necessary to study to replace with more specific, clear regulations, facilitating the application of law. Article 175 of the Criminal Code 2015, amended in 2017, has made some Nghiên cứu trao đổi ● Research-Exchange of opinion 59 modifications, but it is necessary to continue with the explanations and guidelines for a consistent understanding and application. Article 175 of the Penal Code 2015 has been supplemented "Property is the main means of earning a living of the victim and their family", however, the content of this concept has not yet explained or guided. On the other hand, the concept of "escaping", "deliberately not paying", "causing negative impacts on security, social order and safety" in the provisions of Article 175 of the Penal Code has not been clarified yet. The explanation and specific guidance of these concepts is an urgent requirement to facilitate the process of law application as well as to ensure proper application of laws. Secondly, it is necessary to strengthen professional capacity and law application skills of judges,people's jurors in particular as well as those conducting proceedings in general. Implementing the strategy of judicial reform of the Politburo in Resolution No. 49-NQ/TW of June 2, 2005, the quality of the staff with judicial titles has been significantly raised, but still has not met the practical requirements. Implementation of Conclusion No. 01- KL/TW dated 4 April 2016 of the Politburo on the continuation conducted of Resolution No. 48-NQ/TW on the strategy to build and perfect Vietnam's legal system till the year In 2010, the orientation to 2020, the Central Judicial Reform Steering Committee set out Program No. 03/CTr/BCĐCCTPTW on October 6, 2016 on the focus of judicial reform in the 2016-2021 term in which continue to improve the professional qualifications and working skills of judicial officials to better meet the practical requirements of law application. Third, need to strengthen more the coordination mechanism between Investigation Agency, Procuracy and Court in the process of resolving criminal cases. Need to summarize practical experience, strengthen the organization of scientific seminars among these agencies to unify in scientific awareness, which is an important foundation in the process of applying the law in practice. References: 1. The Central Judicial Reform Steering Committee. Program No. 03/CTr/BCĐCCTPTW on October 6, 2016 on the focus of judicial reform in the 2016- 2021 term. 2. Politburo. Conclusion No. 01- KL/TW dated April 4, 2016 on the continuation conducted of the Politburo Resolution No. 48-NQ / TW, IX, on the strategy to build and perfect Vietnam's legal system till the year 2010, orientation to 2020. 3. Politburo. Resolution No. 49- NQ/TW of June 2, 2005 on the strategy to build and perfect Vietnam's legal system till 2010 and orientations to 2020. 4. The Supreme People's Court Judges Council. Resolution No. 01/2013/NQ- HDTP dated November 1, 2013 guiding the application of Article 60 of the Criminal Code on suspended sentence. 5. The Supreme People's Court Judges Council. Resolution No. 02/2018 / NQ-HDTP dated May 15, 2018 guiding the 60 Nghiên cứu trao đổi ● Research-Exchange of opinion application of Article 65 of the Criminal Code on suspended sentence. 6. Nguyen Van Buong, Regulation of suspended sentence according to the Vietnamese criminal law from practice in Central and Central Highlands, Doctoral thesis thesis, Academy of Social Sciences, 2017, page 41. 7. The People's Court of Go Vap District. Criminal judgment of first instance No. 27/2018 / HSST dated March 16, 2016. 8. The People's Court of Ho Chi Minh City. Criminal appellate judgment No. 238/2018/HSPT June 12, 2018. 9. The People's Court of Ho Chi Minh City. Criminal appellate judgment No. 509/2017/HSPT September 22, 2017. 10. The People's Court of Thu Duc District, Ho Chi Minh City. The first instance judgment of 220/2017/HSST on July 13, 2017. 11. The People's Court of Ho Chi Minh City. The first instance criminal judgment No. 26/2018/HSST dated April 5, 2018. 12. The People's Court of District 7, Ho Chi Minh City. the criminal judgment of first instance No. 09/2018/HSST on January 22, 2018. 13. Hanoi Law University, State Theory and Law Curriculum, Police Publishing House, 2011. Author Address: Le Duy Tuong, Director of People's Procuracy of Hung Yen City. Phone: 0912249388.