VIETNAM ACADEMY OF SOCIAL SCIENCES
GRADUATE ACADEMY OF SOCIAL SCIENCES
TRAN HUY DUC
CRIME OF CORRUPTION UNDER VIETNAM’S
CRIMINAL LAW FROM THE REALITY
OF DA NANG CITY
Major: Criminal and Criminal Law
Code: 9380104
SUMMARY OF LAW PHD THESIS
HANOI, 2019
The work was completed at
GRADUATE ACADEMY OF SOCIAL SCIENCES
Scientific Supervisor: Assoc. Prof. PhD. Ho Sy Son
Reviewer 1: Prof. PhD. Duong Minh Gioi
Reviewer 2: Assoc. Prof. PhD. Cao Thi Oanh
Reviewer 3: Assoc. Prof. PhD. Tran Huu Trang
The dissertation will be defended before the thesis review
council of the Academy at the Graduate Academy of Socil Sciences
at 17 o'clock on April 12, 2018
The thesis can be found at:
- National Library of Vietnam
- Library of Graduate Academy of Socil Sciences
INTRODUCTION
1. The urgency of the thesis
Corruption is one of the biggest obstacles to the stability and
development of each country, which seriously reduces the country's
development resources.
In Vietnam, corruption in general and corruption crimes in
particular have been very complicated in many industries, levels, sectors
and have caused bad consequences in many aspects, reducing people's trust
in recent years .
In Da Nang city, anti-corruption work also has remained certain
limitations. There are a number of criminal law provisions that are not very
suitable, not yet synchronous and not yet feasible, leading to the trial of a
number of cases against involved criminals is not really guaranteed to
persuade and be rectified by a higher court.
The study of theoretical issues about corruption crimes; assessing
the institutionalization, the Party's viewpoints, policies and the State's
criminal policies as well as criminal law provisions on corruption crimes,
practical application of legal provisions of criminal laws on corruption
crimes in Da Nang, the factors affecting the application of criminal law
provisions, specifically on the trial of corruption crimes above in this area,
from then proposing solutions, especially legal solutions to ensure proper
application of criminal law provisions on corruption crimes in Da Nang
city, is very urgent and has a great significance in terms of theory and
practice.
Therefore, the author selected the thesis topic "Crime of
corruption under Vietnam's criminal law from the reality of Da Nang
city" to make a doctoral thesis in specialized law Criminal law and criminal
procedure with the desire to contribute to the prevention and fighting with
corruption crimes in our country today.
2. Objectives and tasks of the research
2.1. Objectives of the research
On the basis of clarifying theoretical issues about corruption
crimes; the reality of Vietnam's criminal law provisions on corruption
crimes; practical application of Vietnam's criminal law provisions on
corruption crimes in Da Nang city from 2007 to 2017; advantages,
limitations and shortcomings in the provisions of criminal law as well as in
the practice of judging corruption crimes in Da Nang city and their causes,
the thesis proposes solutions completing the provisions of Vietnam's
criminal law and other solutions to ensure proper application of our
country's criminal law on corruption crimes in new circumstances.
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2.2. Tasks of the research
- Analyzing concepts and legal signs of corruption crimes; differentiate
corruption crimes from some other crimes.
- Analyzing and evaluating the current Vietnam's criminal legislation
on corruption crimes before the issuing of the 2015 Criminal Code, which was
amended and supplemented in 2017.
- Analyzing the content of current Vietnamese Criminal Code
provisions on corruption crimes.
- Analyzing and assessing the practice of determining crime and
deciding penalties for corruption crimes in Da Nang city.
- Proposing to improve criminal law and other solutions to ensure
proper application of Vietnamese criminal law on corruption crimes in the new
situation.
3. Object and scope of the research
3.1. Object of the research
The thesis takes scientific views; guidelines of the Party, policies of the
State; Vietnam's criminal law provisions on corruption crimes; international
conventions and treaties on corruption and corruption prevention; practice to
determine the crime and decide the penalties of the Court for corruption crimes
in Da Nang city to analyze the issues of the research.
3.2. Scope of the research
- The thesis studies its topic in terms of criminal law and criminal
procedures.
- In the theoretical and historical legislative aspects, the thesis only
discusses the concept and legal signs of corruption crimes; differentiate
corruption crimes from some other crimes; generalize the process of issuing and
completing Vietnam's criminal law provisions on corruption crimes before the
issue of the 2015 Criminal Code, which was amended and supplemented in 2017.
- In the practical aspect, the thesis mainly focuses on analyzing the
provisions of the Vietnam Criminal Code 2015, (amended and supplemented in
2017) on corruption crimes; the application of Vietnam's criminal law
provisions on corruption crimes in determining criminal cases and deciding
penalties of courts in Da Nang city against crimes of corruption.
- In terms of space (geographical area), the thesis is limited to do the
research in Da Nang city.
- In terms of research time, the dissertation did the research within 10
years, from 2007 to 2017.
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4. Methodology and research methods
4.1. Methodology of the research
The thesis is based on the methodology of dialectical materialism and
historical materialism of Marxism-Leninism; Ho Chi Minh Thought;
Vietnamese Communist Party's views, policies and the State's criminal law
policies on crimes, penalties, judicial reforms and anti-corruption. The thesis is
also made based on multidisciplinary and interdisciplinary approaches to law,
especially the approaches of criminal law, social studies of criminal law,
criminal studies...
4.2. Methods of the research
In order to achieve the purpose of research, the thesis also uses a
specific research method as follows:
- Specific historical methods, analysis, induction, systematization,
and comparisons are used primarily to study cases in chapter 2.
- Methods of analysis, synthesis, statistics, comparisons and
sociological surveys are applied to study the issues in Chapter 3, thereby
drawing advantages, limitations and causes as a premise for proposing
solutions in chapter 4 of the thesis.
- Analysis methods and systems are mainly used in Chapter 4.
5. The new contributions of the thesis
5.1. Meaning of the thesis
- Theoretical significance: The research results of the thesis contribute
to enriching the theory of anti-corruption in general, corruption crimes in
particular; at the same time, contributing to the dissemination of the popularity
and specificity of corruption acts, the handling of corruption acts.
- Practical significance: The research results of the thesis contribute to
equipping practical knowledge for relevant agencies, especially agencies
conducting legal proceedings to improve the effectiveness and efficiency of the
trials of corruption crimes in our country in general and in Da Nang city in
particular.
With the above research results of theory and practice, the thesis can
be used as a reference for teaching and learning at law training institutions in
our country today.
5.2. New contributions of the thesis
First, the thesis clarifies the relationship between our country's
criminal law provisions on corruption crimes with criminal policies in general
and criminal law policies in particular about these crimes, through which the
thesis made it clear on the social decision of criminal law provisions on
corruption crimes.
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Secondly, the thesis clarifies the connotation concept and legal signs of
corruption crimes, similarities and differences between corruption crimes and
some other crimes, inheritance and development of legal regulations on
corruption crimes in our country.
Thirdly, the dissertation clarifies the current issue of Vietnam's
criminal law provisions on corruption crimes and practices in determining
crimes and deciding penalties in courts in Danang city.
Fourthly, the thesis proposes solutions to ensure proper application of
criminal law to corruption crimes in our country today.
6. Structure of the thesis
In addition to the introduction, conclusion, list of references, the thesis
consists of 4 chapters:
Chapter 1: Overview of the research
Chapter 2: Theoretical and historical legislative issues of Vietnam on
corruption crimes before issuing the 2015 Criminal Code, which was amended
and supplemented in 2018.
Chapter 3: Current Vietnamese criminal law on corruption crimes and
practices applied in Da Nang city
Chapter 4: Solutions to ensure proper application of Vietnam's
criminal law on corruption crimes.
CHAPTER 1
OVERVIEW OF THE RESEARCH
1.1. Overview of the researches in the world
- The article "Corruption, integrity and law enforcement" by
Fijnaut was published in the publication of C.J.C.F.Fijnaut, & L. Huberts
(Eds.), Page 3 -37), 2001.
- The article "Public Corruption" gathered by Brian Whittaker and
Jordan Hicks in 45 Am. Crim. L. Rev. 825 2008 and posted by Ashley
Kircher in American Law Review and the HeinOnline database page in
2008.
- The book "Corruption and misuse of public office" (Corruption
and violation of public authorities) by authors Colin Nicholls QC, Timothy
Daniel, Alan Bacarese, and John Hatchard published by Oxford University
Press in 2011.
- Lenny Roth's book "Corruption offences", presented on the
electronic version of New South Wales Parliamentary Research ServiceAustralia, 11 /2013.
- The book "Corruption: economic analysis and international law" by
Borlini & Leonardo S published by Edward Elgar Publishing Ltd in 2014.
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- The book "Canada's Corruption of Foreign Public Official Act
and Secret Commissions Offense", cited: 29 Am.U.Int'l L. Rev. 2013-2014
369 by Stuart H. Deming.
- The book "Corruption and conflicts of interest: a comparative law
approach" by the group of authors, Jean-BernardAuby, Emmanuel Breen
and Thomas Perroud, 2014.
- The book “Liability of Legal Persons for Corruption in Eastern
Europe and Central Asia” compiled by the Anti-corruption Group for
Eastern Europe and Central Asia under the Organization for Economic
Cooperation and Development (OEDC). 2015.
1.2. Overview of researches in Vietnam
1.2.1. Group of research works on the theory of corruption crimes
Some of the basic research project can be listed as follows:
- State-level independent scientific topic "Scientific arguments for
developing strategies to prevent and improve the effectiveness of anticorruption fighting and prevention in Vietnam until 2020" by Mai Quoc
Binh, The Deputy General Inspector and the authors of the Government
Inspectorate, which was a successful topic in 2009.
- Ministry-level scientific research "Some solutions to improve the
effectiveness of anti-corruption work of state inspection agencies under the
Law on Anti-Corruption" by PhD. Tran Ngoc Liem, the Government
Inspector and was successfully protected in 2010.
- Ministry-level scientific project "Measures to ensure citizens' right
to information for anti-corruption work" by MA. Dinh Van Minh, Deputy
Director of the Institute of Inspectorate, was successfully protected in 2012.
- University-level scientific topic "Corruption crimes related to
possessing property and fighting against and preventing these crimes in
Vietnam in the trend of international integration" by Hanoi Law University ,
was successfully protected in 2008.
- The book "Identifying corruption and anti-corruption solutions in
Vietnam today" by author Phan Xuan Son, Pham The Luc (Co-editor) was
published by the National Political Publishing House in 2012.
- The book "General Theory on the determination of Crime" by
Prof. Dr. Vo Khanh Vinh, was published by Social Science Publishing
House in 2013.
- The doctoral dissertation thesis on "Anti-corruption in the private
sector in Vietnam today" was protected by Pham Thi Hue in 2016 at the
Academy of Social Sciences, Vietnam Academy of Social Sciences.
In addition, there are various works published in magazines that
mention some theoretical issues related to corruption crimes such as: "The
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issue of abusing positions and powers to commit crimes” by Assoc. Prof.
Tran Van Do published in the State and Law Magazine in 1993; "Concept
of people with positions and powers" by Prof. Dr. Vo Khanh Vinh
published in the State Journal and Law of 1996; "A number of issues about
embezzling socialist property" by Assoc. Prof. Tran Van Do published in
the People's Court Journal in 1997; "The causes and conditions of
corruption in our country today" by Prof.Dr. Ho Trong Ngu published in
the State Journal and the Law in 2001; "Transparent operation of the State"
by Ph.D. Le Vuong Long published in the Journal of Legislative Studies
No. 11 (2005); "Identify corruption in Vietnam today, the causes, solutions
for prevention and control" posted on http://noichinh.vn (updated on
January 3, 2014) ...
1.2.2. Group of research works on solutions to properly apply
criminal law provisions on corruption crimes and improve the effectiveness
of actions against corruption crimes
This group can be listed as follows: "It is necessary to stipulate the
legal liability of legal entities" by authors Nguyen Anh Tuan, Nguyen Van
Chinh which was published in the Journal of Legislative Studies No. 195
(5/2011); "Scientific commentary of the Criminal Code 1999 (in the crime
part’)" by Associate Prof. Dr. Phung The Vac, which was published in
2001; "Comments on the Criminal Code 1999" by the Institute of Legal
Sciences - Ministry of Justice, the 2001 edition, the Vietnamese Criminal
Law Curriculum of Hue University, which was published in 2008,
"Criminal Law Review of Vietnam" by Dinh Van Que, published in 2002,
"New points of criminal offenses case of the Criminal Code 2015” by the
author Dao Le Thu posted on https://tapchitoaan.vn (updated on July 25,
2018), "New contents of the Criminal Code 2015 on the position crimes" by
Le Thi Hoa, which was posted on http://tcdcpl.moj.gov.vn (updated on July
25, 2018) ...
1.3. Assessing the research and the issues that need to be
studied in the thesis
First, overseas research works aim at studying the rationale of
corruption in the fields of politics, public management, law, economics and
social life and drawing conclusions about participation. It comes from nonrighteousness in law enforcement. Some studies have approached the study
of corruption with the approach of comparative law, thereby showing that
countries with different legal systems have different approaches to
corruption in general and corruption crimes in particular. The results of this
study suggest that researchers need to approach in a comprehensive range
of different research approaches to build a concept of corruption crimes in a
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multidimensional, multifaceted way of corruption crimes. In addition, the
results of a review of overseas research helped the author initially identify
the reality of international law on corruption and the approach to studying
corruption crimes. This helps the author compare the reality of foreign law
with the reality of Vietnamese law on corruption, corruption crimes, explain
some issues, especially solutions to improve Vietnamese criminal law,
especially corruption crimes.
Secondly, research works in our country mainly focus on studying
the concept of corruption; causes of corruption and anti-corruption
solutions; mechanisms to control, detect and handle corruption; theoretical
basis of the legal system on anti-corruption; the relationship between
operational transparency in state agencies, organizations, and corruption;
the reality of the law on corruption prevention and control in Vietnam ...
Accordingly, the research projects in our country focused on analyzing the
situation of corruption crimes and the situation of handling (criminal) for
those crimes. This provides the guidelines and solutions to efficiency of
anti-crime corruption in our country.
Thirdly, although the published scientific studies, which have been
consulted and reviewed, had certain contributions to the unified
understanding of some theoretical issues, construction and completion to
improve the law, apply criminal laws to corruption crimes, they no longer
worked comprehensively, reasonably and practically for the fight against
corruption in general and corruption crimes in particular in the new
requirements of anti-corruption work.
Fourthly, the issue of corruption and crimes of corruption are
topical, having important significance in terms of ideology, reasoning and
practice for anti-corruption. However, corruption crimes are only interested
in research in the narrow scope of specific sciences but have not become
multi-disciplinary and multi-disciplinary research subjects of social
sciences, including legal science, therefore, research results are not
comprehensive. Obviously, there should be a research project at the
doctoral dissertation level on corruption crimes under Vietnam's criminal
law from the perspective of trial practice in a locality such as Da Nang city.
The research must be conducted in a comprehensive, in-depth study of
corruption crimes from the perspective of criminal law and criminal
proceedings with different research approaches, especially the approach to
policy research, social approach to criminal law study, comparative law
approach...
Also from the review and overview of the above research, the
author will continue to study the following issues:
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Firstly, the study clarifies the content of the concept and legal signs
of corruption crimes.
Secondly, distinguish corruption crimes from some other crimes,
thereby clarifying their similarities and differences.
Thirdly, generalize Vietnam's criminal legislative history on
corruption crimes before issuing the 2015 Criminal Code, amendments and
supplements in 2017.
Fourthly, analyze and assess the current application of criminal
laws in our country in determining crimes and deciding the penalties of the
Court in Da Nang city for crimes of corruption.
Fifthly, propose solutions to ensure proper application of criminal
law to corruption crimes.
In summary, the thesis will analyze in depth the following contents:
(i) Definition of corruption and corruption crimes; legal signs of corruption
crimes; basis for determining penalties for corruption crimes; the process of
formulating and completing Vietnam's criminal law on corruption crimes;
the trend of fighting against and preventing corruption crimes in the
criminal justice system in the world and in Vietnam. (ii) Research and
evaluate the current situation of criminal law application in adjudication of
corruption crimes in Vietnam in general and in Da Nang city in particular.
(iii) Analyze the requirements of fighting against corruption in Vietnam in
the current period, the orientation in 2030 and solutions to complete
Vietnam's criminal legal system to ensure the effective application of
criminal law to corruption crimes in Vietnam in the new situation.
CHAPTER 2
THEORETICAL ISSUES AND HISTORY OF VIETNAMESE
CRIMINAL LEGISLATION ON CRIMES ON CORRUPTION
BEFORE THE ISSUANCE OF THE CRIMINAL CODE 2015
2.1. Concepts and legal signs of corruption crimes
2.1.1. Concepts and definition of criminal crimes on corruption
Crimes of corruption are dangerous for the society which have been
prescribed in the Criminal Code, because the persons with their positions
and powers have abused those positions and powers while performing their
official duties or cases of infringing upon the proper operation of state
agencies and social organizations; infringing upon the reputation of
agencies and organizations; infringing upon property and interests of the
State and organizations; infringing upon the rights and legitimate interests
of individuals and citizens for the sake of self-interest.
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2.1.2. Legal signs of corruption crimes
2.1.2.1. The object of corruption crimes
The object of corruption crimes, which are social relations, create
the proper operation of state agencies and organizations in the society,
prestige of agencies and organizations, especially the prestige of the Party
which plays a leading role in the State and society; legal rights and interests
of individuals and citizens.
The direct object of a corruption crime is a social relationship
where a specific corruption offender directly damages or threatens to cause
damage to it.
2.1.2.2. Objective aspects of corruption crimes
For corruption crimes: dangerous acts for society are the acts of
abusing positions and powers while performing official duties (acting or not
acting) and are performed by persons of such positions and powers. .
Dangerous consequences of criminal crimes for society are an
important basis for determining crimes and personalizing criminal liability
for corruption crimes.
The causal relationship between criminal acts and the consequences
of criminal acts is a mandatory sign for corruption crimes, as regarding
principle and logic reasons, the acts of commiting crimes must be the main
cause, the direct cause and the inevitable cause of the consequences.
2.1.2.3. Subject of corruption crimes
For crimes relating to position, (regarding the factor of position,
authority and abusing positions and powers for the sake of the interests), the
subjects of corruption crimes must be individuals. Thus, for corruption
crimes, in addition to the two conditions of age and capacity of criminal
liabilities, the subjects of corruption crimes must be those holding relevant
positions and powers.
2.1.2.4. Subjective aspects of corruption crimes
The subjective side of corruption crimes has signs of mistakes, motive of
guilt, and criminal purposes. For crimes related to corruption, which show signs
of aiming to make mistakes, the people who commit criminal acts clearly show
the motive for other interests or personal motives.
The purpose of the criminal is expressed in the subjective sense of the
results that must be achieved when committing a crime. Therefore, the motive for
profit and the purpose of appropriating property or other interests is a mandatory
sign in the subjective aspect of corruption crimes.
2.1.3. Distinguish corruption crimes from other crimes
In terms of similarities:
Firstly, the subject is a person holding a position and authority.
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Secondly, persons with positions and powers perform acts contrary
to their assigned tasks and tasks.
Thirdly, all are harmful to the prestige and proper operation of
agencies, organizations, the State's interests, the rights and legitimate
interests of citizens.
In terms of differences:
First, all corruption crimes commit acts of abusing their positions
and powers, not all other criminals holding positions and powers are corrupt
criminals (regarding corruption acts).
Secondly, all corruption crimes have intentional errors, not all other
criminals holding a position and authority commiting this.
Third, all corruption crimes are motivated by purposes of
appropriating property or other interests, not all other criminals holding
positions and powers have such motives and purposes .
2.2. Overview of Vietnam's criminal legislative history on
corruption crimes before issuing the 2015 Criminal Code, (amended
and supplemented in 2017)
2.2.1. The period from 1945 to the time before the issuance of the
Criminal Code of 1985
During this period, the State promulgated a series of laws which
stipulated corruption acts that were considered criminals and measures to
punish them to contribute to ensuring the effectiveness and efficiency of the
apparatus government, specifically:
- Decree No. 223 / SL, November 27, 1946 by the President of the
Provisional Government of the Democratic Republic of Vietnam.
- Decree 267 / SL, June 15, 1956,by the President of the
Democratic Republic of Vietnam, regulated the punishment of conspiracies
and activities of destroying property of the State, cooperatives and people,
preventing the implementation of policies and plans of the State.
- Ordinance on punishing crimes of infringing on socialist property
on October 21, 1970 by the Standing Committee of the National Assembly.
- Ordinance on punishing crimes of infringing upon private
property of citizens on October 21, 1970 of the National Assembly
Standing Committee.
- Law No. 03 / SL dated March 15, 1976 by the Provisional
Revolutionary Government Council of South Vietnam.
- Ordinance on punishing bribery on May 20, 1981 by the National
Assembly Standing Committee.
By generalizing the above regulations on corruption crimes, it can
be seen that right from the independence, the State's criminal policy has
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shown the attitude of condemning and resolutely struggling with the crimes,
violations of corruption, however, on the legislative aspect, corruption
crimes have not been specified, especially the signs of constituting crimes.
2.2.2. The period from the issuance of the Criminal Code in 1985
to the issuance of the Criminal Code in 1999
The legislative milestone showing the consistent criminal policy of
our State on corruption crimes in the period from 1985 to the issuance of
the 1999 Criminal Code was the Criminal Code in 1985 issued by the
National Assembly on 27th June 1985 (amended and supplemented four
times in 1989, 1991, 1992 and 1997), whereby lawmakers set aside a
separate chapter that regulated corruption crimes and penalties for them that
were suitable to the current situation.
The practical application of the provisions of the 1985 Criminal Code
showed that although it has been completed through the revisions, there have
been still certain shortcomings that required some additional crimes to meet
the requirements of the prevention and fighting against crimes in the new
period, including corruption crimes. With that urgent request, on December
21, 1999, the National Assembly approved the Criminal Code, which was
effective from July 1, 2000 (referred to as the Criminal Code in 1999),
replacing the Criminal Code in 1985.
2.2.3. The period from the issuance of the Criminal Code of 1999
to the issuance of the Criminal Code 2015, (amended and supplemented
in 2017)
Compared to the Criminal Code in 1985, the Criminal Code in 1999
stipulated corruption crimes into a separate section. New points of the Criminal
Law 1999 compared to the 1985 Criminal Law were clearly delineating
corruption crimes with criminals about other positions.
However, since it was issued in 1999, the Criminal Code 1999 has
not fully institutionalized the new views and guidelines of the Party and the
criminal policy of our State, therefore, on November 27, 2015, The
National Assembly of Vienam approved the Criminal Code 2015, amended
and supplemented in 2017 (effective from January 1, 2018), which
stipulated corruption crimes in section 1, Chapter XXIII, including 07
crimes: crime of embezzlement of property (Article 353); Crime of taking
bribes (Article 354); Crime of abusing positions and powers of
appropriating property (Article 355); Crime of abusing positions and
powers while performing official duties (Article 356); Crime of abuse of
power while on duty (Article 357); Crime of abusing positions and powers
to influence other people for personal gains (Article 358); Crime of forgery
(Article 359).
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CHAPTER 3
PROVISIONS OF THE CURRENT VIETNAMESE LAW
ON CORRUPTION CRIMES AND APPLICABLE PRACTICE
IN DA NANG CITY
3.1. Current Vietnamese law on corruption crimes.
3.1.1. Crime of embezzling property (Article 353)
- The object of the embezzlement of property:
Crime of embezzlement of property violates the proper operation of
state agencies, social organizations, property rights.
- Objective aspect of embezzlement of property:
Crime of embezzlement of property has mandatory signs: taking
advantage of positions and powers of appropriating property; appropriated
property is the property of the criminal assigned to manage; appropriated
assets valued at between VND 2,000,000 and under VND 100,000,000 or
less than VND 2 million, and has been disciplined for such acts but still
violate or has commited crimes regulated in Index 1, Chapter XXIII, and
not been deleted the criminal record but also violated.
- Subject of crime of embezzlement of property:
Crime of embezzlement is the person with the position and
authority responsible for managing the property. That person may be a
person holding positions and powers in agencies, state or non-state
enterprises.
- Subjective side of embezzlement of property:
Crime of embezzlement is done purposely, directly for the
purpose of committing crimes for a benefit.
In Article 353 of the Criminal Code 2015, amendments and
supplements in 2017, lawmakers set 4 penalties for the embezzlement.
In addition, according to Clauses 5 and 6, the criminals are also
prohibited from holding certain positions for one to five years, may be
subject to a fine of between VND 30,000,000 and VND 100,000,000, whole
or partial confiscation of property. Persons holding positions and powers in
non-state enterprises and organizations that embezzle properties shall be
handled according to the provisions of this Article.
3.1.2. Crime of taking bribes (Article 354)
- Object of taking bribes: Crime of taking bribes violates the proper
operation of state agencies or social organizations or non-state and
prestigious enterprises and organizations of agencies or organizations
- The objective side of the crime of accepting bribes:
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Crime of taking bribes has the following signs: taking advantage
of positions and powers directly or not directly that have or will receive
non-material benefits or money, property or other benefits of any form
that cost from 2,000,000 VND to less than 100,000,000 VND or less than
2,000,000 VND, and has been disciplined for this act but also violates or
has committed crime that is stipulated in Item 1, Chapter XXIII Criminal
Code 2015, amended and supplemented in 2017, has not yet been deleted
the criminal record but also violated to do or not to complete a task for the
benefit or at the request of the bribe.
- Subject of the crime of accepting bribes:
The subject of the crime of accepting bribes is the person holding
the position and authority. That person may be a person holding positions
and powers in agencies, state or non-state enterprises.
- Subjective side of taking bribes:
Crime of accepting bribes is done by intentional and self-seeking
purposes.
In Article 354 of the Criminal Code 2015, amended and
supplemented in 2017, there are 4 penalties for bribery.
- In addition, according to paragraphs 5 and 6 of Article 354,
offenders are also banned from holding certain posts for one to five years,
and may be subject to a fine of between VND 30,000,000 and VND
100,000,000. collect part or all of the property. Persons with positions and
powers in enterprises and organizations outside the State that accept bribes
shall be handled according to the provisions of this Article.
3.1.3. Crime of abusing positions and powers for appropriating
property (Article 355)
- The object of the abuse of positions and powers of appropriating
property:
Crime of abusing positions and powers to appropriate property
infringing upon the proper activities of state agencies, social organizations,
property rights of others.
- Objective aspect of abuse of positions and powers to appropriate
property:
This crime has the following mandatory characteristics: abuse of
positions and powers of appropriation of property. On the objective side of
this crime, it should be noted that the use of positions and powers may be to
carry out acts beyond the scope of the tasks assigned in such forms as
deception or trust abuse....
- Subjects of abuse of positions and powers of appropriating
property:
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Subjects of position and power abuse of appropriation of property
are persons holding positions and powers.
- Subjective side of abuse of positions and powers of appropriating
property:
This crime is made by intentions. The motivation to commit a
crime is rooted from a benefit.
In Article 355, lawmakers set four penalties for abuse of property
appropriation and authority.
In addition, according to Clause 5 of Article 355, criminals are also
prohibited from holding certain positions for one to five years, may be
subject to a fine of between VND 30,000,000 and VND 100,000,000,
confiscation of a part or all set of properties.
3.1.4. Crime of abusing positions and powers while performing
official duties (Article 356)
- The object of the crime of abusing positions and powers while
performing official duties:
Crime of abusing positions and powers while performing public
duties infringes upon the proper activities of state agencies, organizations,
legitimate rights and interests of individuals.
- Objective side of the crime of abusing positions and powers while
performing official duties:
The objective side of this crime has mandatory signs: abusing
positions and powers against the public service; causing damage to the
interests of state agencies, organizations, legitimate rights and interests of
individuals; and the causal relationship between taking advantage of
positions, powers and damages caused by such behavior.
- Subject of the crime of abusing positions and powers while
performing official duties:
Subjects of abuse of positions and powers while on duty are
persons holding positions and powers.
- Subjective side of the crime of abusing positions and powers while
performing official duties:
In Article 356, the lawmaker stipulates 3 penalties for abusing
positions and powers while performing official duties.
In addition, according to Clause 4 of Article 356, criminals are also
banned from holding one position from one year to five years, and may be
subject to a fine of between VND 10,000,000 and VND 100,000,000.
3.1.5. Crime of abuse of power while on duty (Article 357)
- Object of abuse of power while on duty:
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Crime of abuse of power while on duty violates the proper
operation of the state, the rights and legitimate interests of organizations
and individuals.
- Objective aspect of abuse of power while on duty:
The objective side of crime has three mandatory signs: acts that
exceed the assigned authority in their work; causing damage to the interests
of the State, legitimate rights and interests of organizations and individuals;
causal relationship between behavior beyond the power and damage caused
by that behavior.
- Subject of abuse of power while on duty:
The subject of abuse of power while on duty is a person holding a
position or authority.
- Subjective face of abuse of power while on duty:
This crime is caused intentionally
At Article 357 of the Penal Code 2015, amendments and
supplements in 2017, lawmakers set out 4 penalty ranges for abuse of
power while on duty.
In addition, according to Clause 5 of Article 357, criminals are also
banned from holding certain positions for one to five years, and may be
subject to a fine of between VND 10,000,000 and VND 100,000,000
3.1.6. Crime of abusing positions and powers to influence other
people for personal gains (Article 358)
This crime infringes on the normal operation of the state or
organization, the normal reputation of that agency or organization.
- The objective side of the crime of abusing positions and powers to
influence others for personal profit purposes
Crime of abusing positions and powers to influence other people
for personal gain has the following signs: abusing positions, powers directly
or not directly to ask for, receive or receive money, property or material
benefits or others in any form with a value of from 2,000,000 VND to less
than 100,000,000 VND or less than 2,000,000 VND, have been disciplined
for this behavior but still violate; use their influence to ask people holding
positions, powers to do or not to do a relevant task or to do the task that
they are not allowed to do.
- Subjects of the crime of abusing positions and powers to influence
other people for personal gain: The subjects of this crime are persons
holding positions and powers.
- Subjective side of abuse of positions and powers to influence other
people for personal gain: This crime is committed intentionally.
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In Article 358 of the Criminal Code 2015, lawmakers set forth 4
penalty ranges.
In addition, according to Clause 5 Article 358, criminals are also
prohibited from holding certain positions for one to five years, and may be
subject to a fine of between VND 30,000,000 and VND 100,000,000.
3.1.7. Crime of forgery (Article 359)
- The object of forged crime at work:
Forged crime in work violates normal activities of state agencies or
organizations
- Objective aspect of forged crime at work:
Objective aspects of crime are reflected in the position and authority of
people holding positions and powers to abuse their positions and powers to
perform one of the following acts: correcting and falsifying the contents of
papers and documents; making and issuing fake papers; forging signatures of
persons holding positions and powers.
- The subject of forgery at work:
The subject of this crime is the person who has the position and
authority and in certain cases the subject must be responsible for making or
granting papers and documents.
- Subjective side of forgery crime at work:
The subjective side of this crime is done intentionally.
In Article 359 of the Criminal Code 2015, amended and
supplemented in 2017, lawmakers set out 4 penalty ranges for forgery crime
at work.
In addition, according to Clause 5, Article 359, the criminals are also
banned from holding certain positions or doing certain jobs for one to five
years, and may be subject to a fine of between VND 10,000,000 and VND
100,000,000.
Based on the analysis of the above specific crimes, it can be seen
that basically, crimes of corruption in the Criminal Code 2015,
(amendments and supplements in 2017) were similar to corruption crimes
in the Criminal Code in 1999 on the number of crimes, criminal names and
basic components of crime. However, compared to the 1999 Criminal Code,
the Criminal Code 2015 (amendments and supplements in 2017) have been
amended and supplemented for this type of crime, notably:
Firstly, adding the concept of criminals to positions, according to
which acts of infringement work properly by agencies and organizations
performed by people holding positions not only during the performance of
public duties but also the current task (Article 352). This means that the
scope of acts of dangerous behavior for society is considered a crime not only
16
for those who are officials, civil servants and public servants but also acts of
those working in businesses and companies outside the state sector. Subjects of
implementing corruption crimes extended to non-state areas are applied to four
crime types: "Crime of embezzlement of property", "Crime of taking bribes",
"Crime of brokering bribes" and "Crime of giving bribes ", including two
crimes of corruption: “Crime of embezzling property” (Clause 6, Article 353)
and "Crime of taking bribes" (Clause 6, Article 354).
Secondly, more complete regulations on some factors that constitute
criminals. For example, the act of bribery is defined as "The person who
directly or not directly has given or will give the person holding the position,
power or other person or organization any of the following benefits so that the
people holding such positions and powers to do or not to do a request for the
benefit or at the request of the bribe "(Clause 1, Article 354).
Thirdly, "non-material benefits" was considered to be the factor that
constitute a number of corruption crimes in the supplemented provision.
Fourthly, supplementing constitutes in determining severe penalty
ranges for a number of crimes, specifying details of crimes and determining
penalty frames.
Fifthly, the Criminal Code 2015, amended and supplemented in
2017, stipulated to increase the amount of money and property value and
quantify the value of damage caused in very serious or particularly serious
consequences into specific amounts.
Sixthly, a number of new policies have been added to handle
corruption crimes such as supplementation of non-material interests;
additional cases of not applying the limitation for criminal prosecution in
Article 28 of the Criminal Code.
In addition, in case of not applying the statute of limitations for the
retention of penal liabilities
Accordingly, to limit the application of the death penalty in
practice, the Article 40 of the Criminal Code 2015, (amended and
supplemented in 2017) stipulated that "people who are sentenced to death
on embezzlement of property, and taking bribes and after being sentenced,
actively return at least three-fourths of the embezzlement property, bribes
and voluntarily cooperate with authorities in detecting, investigating,
handling crimes or doing a big work" will not be sentenced to death and
changed to penalty for life imprisonment.
From the above analysis, it can be seen that it is the social life that
decides to regulate corruption crimes in certain stages in the development of the
Vietnamese revolution. The impact of social life, the Party's policy and
guidelines, and the State's criminal policy on the regulation of corruption
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crimes is shown not only in term of the content but also regarding the legal
techniques.
3.2. Practical application of criminal law provisions on
corruption crimes in Da Nang city
According to the report of Da Nang People's Court, within 10 years
(from 2007 to December 30, 2017), the People's Courts in Da Nang city tried
13 cases with 26 defendants on corruption crimes according to the provisions
of the 1999 Criminal Code, amended and supplemented in 2009, of which,
there were 08 cases with 10 defendants being tried and sentenced of
embezzlement of property under the Article 278 of the Criminal Code; 02 cases
with 08 defendants were tried and sentenced for accepting bribes according to
the Article 279 of the Criminal Code; 01 case with 03 defendants were tried
and sentenced on the abuse of positions and powers to appropriate property
under the Article 280 of the Criminal Code and one case with 03 defendants
who were tried and convicted of abuse of positions and powers while
performing official duties under the Article 281 of the Criminal Code; 01 case
with 04 defendants were tried and convicted of falsifying work under the
Article 284 of the Criminal Code (shown in Table 3.1).
Table 3.1: Trials of corruption crimes in Da Nang city
Year
2007
2009
2013
2014
2015
Case
number
(13)
1
2
3
4
5
6
7
8
9
10
11
Defendants
(22)
Crimes
Penalty ranges
Nguyen Dinh Chien
Tong Viet Toai
Le Dac Minh
Le Tan Minh Tri
Ha Ngoc Thach
Ho Van Men
Tran Phuoc Hung
Nguyen Dinh Than
a, k3, Đ 278
a, k3, Đ 278
K1, Đ 278
K1, Đ 278
a, k4, Đ 278
K2, Đ 280
K2, Đ 278
c, k2, Đ 278
Bui Manh Hung
Bui Hung Minh
Bui Thi Hoa
Tran Ninh
Thai Van Hao
Dang Bao Long
Nguyen Phuoc Thanh
a, k4, Đ 278
a, k4, Đ 278
a, k4, Đ 278
K1, Đ 279
K1, Đ 281
K1, Đ 281
K1, Đ 281
07 years in prison
12 years in prison
02 years in prison
18 months in prison
19 years in prison
15 years in prison
45 months in prison
01 year and 7 months
in prison
17 years in prison
15 years in prison
Life imprisonment
12 months in prison
06 months in prison
04 months in prison
04 months in prison
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