What is the content of the Precedent No. 17/2018/AL on a gangster-like nature in the crime of murder with accomplice in Vietnam?
- What is the overview of the Precedent No. 17/2018/AL on a gangster-like nature in the crime of murder with accomplice in Vietnam?
- What is the content of the Precedent No. 17/2018/AL on a gangster-like nature in the crime of murder with accomplice in Vietnam?
- What is the Court's opinion on Precedent No. 17/2018/AL on a gangster-like nature in the crime of murder with accomplice in Vietnam?
What is the overview of the Precedent No. 17/2018/AL on a gangster-like nature in the crime of murder with accomplice in Vietnam?
In Decision 269/QD-CA in 2018, an overview of Precedent No. 17/2018/AL on a gangster-like nature in the crime of murder with accomplice is clearly stated as follows:
Precedent No. 17/2018/AL on the episode “a gangster-like nature” in the crime of “murder” with accomplice
Approved by the Council of Judges of the Supreme People's Court on October 17, 2018 and announced according to Decision 269/QD-CA in 2018 dated November 6, 2018 of the Chief Justice of the Supreme People's Court.
Source of Precedent:
Cassation Decision No. 07/2018/HS-GĐT dated March 20, 2018 of the Council of Judges of the Supreme People's Court on the "Murder" case against defendant Nguyen Van H, born in 1977; residing in A street, C town, P district, Thua Thien Hue province.
- Victim: Mr. Duong Quang Q.
Precedent content location:
Paragraph 1 part “Comments of the Court”.
Overview of Precedent's content:
- Precedent situation:
In the case with accomplices, just because of a small conflict in daily life, the accomplices invited each other to beat the victim.
When committing the crime, the practitioner uses a machete to repeatedly slash the victim's head, face, legs, and arms; The fact that the victim does not die is beyond the subjective wishes of the practitioner.
The instigator was not present when the perpetrator committed the crime. He did not know that the practitioner was using a machete to slash vital areas of the victim's body but allowed the consequences to occur.
- Legal solutions:
In this case, the practitioner must be criminally prosecuted for the crime of "Murder" with the framing detail of "a gangster-like nature". The instigator is criminally prosecuted for the crime of "Murder" but is not subject to the "a gangster-like nature" framing circumstance.
Legal provisions related to Precedent:
- Point n, Clause 1, Article 93 Criminal Code 1999 (corresponding to Point n Clause 1, Article 123 Criminal Code 2015);
- Clause 2, Article 93 Criminal Code 1999 (corresponding to Clause 2, Article 123 Criminal Code 2015).
Keywords of Precedent:
"Partners in crime"; “a gangster-like nature”; “Vital areas of the body”; “Practitioner”; "Instigator"; “Murder”.
What is the content of the Precedent No. 17/2018/AL on a gangster-like nature in the crime of murder with accomplice in Vietnam? (Image from the Internet)
What is the content of the Precedent No. 17/2018/AL on a gangster-like nature in the crime of murder with accomplice in Vietnam?
Decision 269/QD-CA in 2018 clearly states the content of Precedent No. 17/2018/AL on a gangster-like nature in the crime of murder with accomplice as follows:
At about 8:00 a.m. on January 13, 2015, due to conflicts in daily life, a fight broke out between Mr. Duong Quang Q's children, Duong Quang T, Duong Quang R and Duong Quang K, and Mr. Duong Quang H and Duong Quang L. and Nguyen Van H. Mr. Q's children used their hands and feet to punch and kick Mr. Duong Quang H's body, causing Mr. H to suffer minor scratches. Seeing his father-in-law, Mr. Duong Quang H, being beaten by Mr. Q's children, Nguyen Van H called Tran Quang V (Mr. H's son-in-law). Knowing that his father-in-law had been beaten, V went from Ha Tinh to Thua Thien Hue and invited Pham Nhat T to go beat Mr. Q with him. While leaving, V and T took two machetes from T's house and put them in a badminton racket bag. bring. At about 4:00 p.m. on January 19, 2015, V drove T to Lang Co town and called H to come drink with him. At the bar, H said to V, "Dad was injured a lot, and he's still in pain." V asked H where Mr. Q's home address was and what Mr. Q's identification characteristics were. After listening to H's words, V said to T, "When we're done drinking, I'll go fight with you again." After that, H left first, V and T continued to drink.
At about 5:45 p.m., while paying, Tran Quang V said to Pham Nhat T, "If there's anything, I'll go in and fight, if the people come out, you'll stop me." T agreed and got on the motorbike so V could take him to Mr. Q's house. After driving around Mr. Q's house, knowing that Mr. Q was not at home, V stopped the car in a deserted place, used plastic cloth to cover the license plate, and took T to Lang Co bridge to wait. At about 6:00 p.m., V drove T around and drove back to Mr. Q's house and saw Mr. Q bending over to open the gate. V stopped the car, opened the badminton racket bag, took out a machete with a serrated blade, then ran to slash Mr. Q's head, face, back, legs and arms repeatedly, causing Mr. Q to fall to the ground. Because many people around saw and shouted and ran, T held a machete and threatened, blocking it, creating conditions for V to run to the motorbike parking lot and start the engine to escape. When approaching Phu Gia Pass, V called H to ask about Mr. Q's injury. H asked V again, "So did you cut Mr. Q?" Mr. Q has gone to the hospital." After calling H, V called Duong Quang L and said, "I just finished cutting Mr. Q!" Where are you? Come and save two machetes for me! After hearing V's call, L went out to the street and waited for V and T to arrive. T gave L a bag of badminton rackets containing 02 machetes and asked L to hide them, then V continued to drive T to V's house and sat down to drink beer with T. After L gave the bag containing 02 machetes home thanks to Mr. Duong Quang H kept it for him, Mr. H took this bag to Mr. Ho T's (Mr. H's father-in-law) kitchen to hide it. Mr. Duong Quang Q was taken to the emergency room and treated at Da Nang City Hospital until February 3, 2015, when he was discharged.
In the conclusion of forensic examination of injuries No. 26-15/TgT dated January 28, 2015, the Forensic Examination Center of Thua Thien Hue province concluded: Mr. Duong Quang Q suffered multiple soft tissue injuries in the head area, left shoulder, left elbow, left thigh, leaving scars that do not affect function 3%; Facial soft tissue injuries have little effect on function, 8%; Traumatic fracture of 04 front teeth R1.1,1.2,1.3, 3.3; 2 small molars 1.4, 1.5; Molars 1.6 and 1.7 are being treated, currently losing 20% of the function of the opposing teeth; The wound nearly severed the left hand and had reconstructive surgery. It is still being treated and the functional sequelae have not yet been assessed, 8%; 25% of wounds severed the 2nd and 3rd fingers of the left hand; The overall body injury rate is 51%; The object causing the above injuries is a heavy sharp object.
In First Instance Criminal Judgment No. 20/2016/HSST dated May 23, 2016, the People's Court of Thua Thien Hue province applied point n, clause 1, Article 93; Points b and p, Clause 1, Article 46; Article 47; Article 18; Clause 3, Article 52 of the 1999 Criminal Code, sentenced Nguyen Van H to 7 years in prison for the crime of "Murder".
In addition, the Court of First Instance also decides on crimes and penalties for other defendants, on civil liability, handling of evidence, court fees and the right to appeal according to law.
After the first instance trial, Nguyen Van H filed an appeal to reconsider the crime and request a reduced sentence.
In Criminal Appeal Judgment No. 217/2016/HSPT dated August 2, 2016, the High People's Court in Da Nang decided: Accept the appeal of defendant Nguyen Van H; Apply Clause 2, Article 104; Points b and p, Clause 1, Article 46; Article 20; Article 53 Criminal Code 1999, sentenced Nguyen Van H to 03 years in prison for the crime of "Deliberate infliction of bodily harm upon another person".
At cassation appeal No. 13/2017/KN-HS dated July 3, 2017, the Chief Justice of the Supreme People's Court appealed against Criminal Appeal Judgment No. 217/2016/HSPT dated August 2, 2016 of High People's Court in Da Nang on the crime and punishment of Nguyen Van H; request the Council of Judges of the Supreme People's Court to conduct a cassation trial to annul the above-mentioned criminal appeal judgment regarding the crimes and penalties against Nguyen Van H for re-trial in accordance with the provisions of law. the law.
At the cassation trial, the representative of the Supreme People's Procuracy agreed with the appeal of the Chief Justice of the Supreme People's Court.
What is the Court's opinion on Precedent No. 17/2018/AL on a gangster-like nature in the crime of murder with accomplice in Vietnam?
In Decision 269/QD-CA in 2018, the Court's opinion on Precedent No. 17/2018/AL on a gangster-like nature in the crime of murder with accomplice is clearly stated as follows:
[1] According to documents and evidence in the case file: After witnessing that his father-in-law, Mr. Duong Quang H, was beaten by Mr. Duong Quang Q's children, Nguyen Van H was the one who directly called to report it. let Tran Quang V know that Mr. H was beaten. While eating and drinking with V and Pham Nhat T on the evening of January 19, 2015, knowing that V and T intended to beat Mr. V was conscious and determined to beat Mr. Q. H was also the one who pointed out Mr. Q's residence and identifying characteristics to V and T so that V and T could carry out the act of beating Mr. Q. Hearing V and T discuss the plan to beat Mr. . In fact, Tran Quang V used a machete to repeatedly slash Mr. Q's head, face, legs, and arms, causing Mr. Q to collapse on the spot. Because everyone intervened and was taken to the emergency room promptly, Mr. Q did not die, which was out of V's subjective will. After cutting Mr. Mr. Q. Although H did not know in advance that V would use a machete to repeatedly slash vital areas of Mr. Q's body, possibly taking Mr. Q's life, H agreed with V and T to beat Q, accept the consequences. Therefore, the Court of First Instance's conviction of Nguyen Van H as an accomplice with Tran Quang V and Pham Nhat T for the crime of "Murder" is well-founded. However, the Court of First Instance sentenced Nguyen Van H according to Point n, Clause 1, Article 93 of the 1999 Criminal Code with the framing detail "a gangster-like nature" which is incorrect, because: In this case Tran Quang V and Pham Nhat T was the person who directly carried out the act of beating Mr. Q; Just because of a small conflict in activities with Mr. Q's children, V and T used machetes to slash many vital areas on Mr. Q's body, thus referring to V and T's criminal behavior as "a gangster". -like nature", and Nguyen Van H did not directly participate in beating Mr. Q but assisted V and T in beating Mr. defined in Clause 2, Article 93 Criminal Code 1999.
[2] The Court of Appeal found: Tran Quang V's use of a machete to slash Mr. Duong Quang Q's head and face was an act that exceeded Nguyen Van H's will, so H is not criminally responsible for the crime of "Murder" but is only criminally responsible for the actual consequences that happened to Mr. upon another person is a serious mistake in applying the law. At the same time, the Court of Appeal overemphasized the mitigating circumstances of criminal liability that were considered by the First Instance Court and sentenced Nguyen Van H to 3 years in prison, which is an incorrect assessment of the nature and level of danger to society of the criminal act committed by the defendant, has no general deterrent and preventive effect.
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