Comment on Criminal Precedent No. 17/2018/AL of Vietnam on "a gangster-like nature" in the crime of "murder" with accomplice

– Point n, Clause 1, Article 93 of the 1999 Criminal Code of Vietnam (corresponding to Point n, Clause 1, Article 123 of the 2015 Criminal Code ).

– Clause 2, Article 93 of the 1999 Criminal Code (corresponding to Clause 2, Article 123 of the 2015 Criminal Code).

– Article 20 of the 1999 Criminal Code (corresponding to Article 17 of the 2015 Criminal Code).

2. The need to publish case law

In Vietnam, the perception of relevant provisions of the Law is still different, which leads to the application of the law in investigation, prosecution and adjudication, especially the principle of determining criminal liability in cases with accomplices. There is a view that, in a case with accomplices, whatever crime the practitioner commits, according to any penalty frame, the other accomplices must also be prosecuted and tried according to that crime and penalty frame.

However, the above view is inconsistent with the law on  Complicity (Organized crime and Complicity). Because each accomplice is associated with its own framing circumstances, it is not possible to force another accomplice to bear penal liability according to the circumstances that set a separate penalty frame for the offender, except in the case of co-conspirators share the same framing circumstances.

Criminal precedent No. 17 was born as a unified explanation to apply the principle of determining criminal responsibility in cases with accomplices. Therefore, it is necessary for this precedent to be born.

3. Contents of criminal cases and precedent situations

* Contents of the case

According to documents and evidence in the case file: After witnessing that Duong Quang H's father-in-law was beaten by Duong Quang Q's children, Nguyen Van H was the one who directly called Tran Quang V knew that Mr. H was beaten. Then, while drinking with V and Pham Nhat T on the evening of January 19, 2015, because knowing that V and T intended to hit Mr. Q. H said, "My father was injured a lot and still hurts", reinforcing V's consciousness and determination in going to beat Mr. Q. H was also the one who pointed out Mr. Q's whereabouts and identity to V and T knows so that V and T can perform the act of hitting Mr. Q. When he heard V and T discuss the plan to hit Mr. Q, H did not dissuade him, but said, "If you hit, just beat your face" and left first. In fact, Tran Quang V used a machete to slash continuously on 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 in time, Mr. Q's death was not unintentional. After cutting Mr. Q, V made three consecutive phone calls to H to inquire about his injury of Mr. Q. Although, H did not know in advance that V used a machete to slash continuously at key areas of Mr. Q's body, possibly depriving Mr. Q of his life, but H agreed with V and T in the process and accept the consequences. Therefore, the first-instance Court's conviction that Nguyen Van H accomplices with Tran Quang V and Pham Nhat T on the crime of "Murder" is grounded and the Court of First Instance sentenced Nguyen Van H under Point n Clause 1 of Article 123, Th criminal Code 1999 with the framing detail "gangster-like nature" is incorrect, because: In this case, Tran Quang V and Pham Nhat T were the ones who directly performed the act of beating Mr. Q; Because of a minor conflict in activities with Mr. Q's children, V and T used machetes to slash many times in key areas of Mr. Q's body, so only V and T's offenses were "gangster-like nature", and Nguyen Van H did not directly participate in beating Mr. Q, but helped V and T in beating Mr. Q, so H's offense was not "gangster-like nature" but only in the case of defined in Clause 2, Article 93 of the Criminal Code 1999.

* Case law situation

“…However, the first-instance court's conviction that Nguyen Van H under Point n, Clause 1, Article 93 of the Criminal Code 1999 with the framing circumstance "Murder of a gangster-like nature" is incorrect, because: In this case, Tran Quang V and Pham Nhat T is the person who directly beat Mr. Q; Because of a minor conflict in activities with Mr. Q's children, V and T used machetes to slash many times in key areas of Mr. Q's body, so only V and T's offenses were "Murder of a gangster-like nature", and Nguyen Van H did not directly participate in beating Mr. Q, but helped V and T in beating Mr. Q, so H's offence was in the case of defined in Clause 2, Article 93 of the Penal Code 1999”.

4. Similar legal facts and events to which case precedent applies

The specific criminal case is stated in precedent No. 17/2018/AL, V and T are the perpetrators of the crime with the "Murder of a gangster-like nature", so only V and T will judge according to the point of n, Clause 1, Article 93 of the Criminal Code is correct. As for H who is an accomplice to help, H's act of helping has no elements of a thug nature, nor any other framing circumstances in Clause 1, Article 93 of the Penal Code. Therefore, for H, Clause 2, Article 93 of the Criminal Code must be applied to make a legal trial.

From the effective date of the precedent (December 3, 2018), criminal cases of murder with accomplices with similar circumstances must apply ALHS No. 17/2018 to trial.

Precedent No. 17/2018 contributes to unifying awareness on the principle of determining the criminal responsibility of accomplices in criminal cases. The accomplices must bear penal liability for a crime that they agree to commit, however, not all cases are subject to penal liability according to the circumstances of the practitioner's own framing.

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