Comment on Precedent No. 19/2018 of Vietnam on determining the value of appropriated property in the crime of “Embezzlement of property”

2. Necessity to publish precedent

Currently, the determination of the amount appropriated in the case of partial remediation of the consequences to serve as a basis for determining the crime and setting the penalty frame has different interpretations and lacks uniformity. It is very important to have a precedent explaining this issue. Precedent  No. 19/2018 is a precedent with the content of the above situation. Specifically, in the above case, the defendant took advantage of loopholes in bank management to carry out procedures for withdrawing and spending savings from the bank branch's fund managed by the defendant but did not actually spend any money. Who. Because during the investigation, the defendant was able to recover part of the money appropriated, so the People's Procuracy did not prosecute this act. However, the failure to prosecute the remedial amount not only missed the crime but also led to the wrong determination of the applicable penalty frame. Therefore, the publication of case precedent No. 19/2018 is very necessary for the process of investigation, prosecution and adjudication applied for uniformity.

3. Judgment content and precedent situations

* Contents of the judgment

Vo Thi Anh N was not assigned the task of spending savings by the leaders of Agricultural Bank C, but taking advantage of loopholes in the Bank's management process, Vo Thi Anh N repeatedly directly carried out the procedures and expenses from the bank branch's fund managed by Vo Thi Anh N for the passbook NA 1297720 named Ngo Thanh V with a total amount of VND 471,432,700. During the investigation, the investigating agency determined that there was no customer named Ngo Thanh V and Vo Thi Anh N herself could not prove who came to receive this money.

After completing the procedures to pay money to customer Ngo Thanh V, Vo Thi Anh N transferred VND 251,000,000 which is the money in the bank's fund managed by Vo Thi Anh N to an ATM account named Vo Thi T by Vo Thi Anh N is the person who directly opens, manages and uses the card; then repeatedly withdrew this amount to appropriate the Agricultural Bank C. The Court of First Instance and the Court of Appeal convicted Vo Thi Anh N of "Embezzlement" for the amount of 251,000, 000 dong is grounded and in accordance with the law. However, the amount that Vo Thi Anh N appropriated from the Bank was VND 251,000,000, so Vo Thi Anh N's crime was in the case specified at Point a, Clause 3, Article 278 of the Criminal Code “Appropriating property valued between two hundred million dong and under five hundred million dong” carries a prison term of between fifteen and twenty years. The first-instance court only applied Clause 2, Article 278 of the Criminal Code, and sentenced defendant Vo Thi Anh N to 3 years in prison, which is too light and not in accordance with the provisions of the law. During the appellate trial, the Appellate Court failed to discover the first-instance Court's mistake, upheld the penalty level and gave the defendant a suspended sentence as a serious mistake, failing to properly assess the dangerous nature of the trial. of the crime committed by the defendant.

* Precedent situation

“For the remaining amount of 220,432,700 VND (471,432,700 – 251,000,000 = 220,432,700 VND) that Vo Thi Anh N has paid for the ladder passbook NA 1297720 named after Ngo Thanh V, Vo Thi Anh N has overcome the consequences, the Bank for Agriculture and Rural Development of City C has recovered all the lost money. The People's Procuracy of Binh Dinh province believes that the defendant has overcome the consequences, so not prosecuting this act is a crime.

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

When the criminal judgment is prosecuted for embezzlement of property and determine the amount of money the defendant appropriated. In the course of the investigation, if the defendant has compensated and redressed part of the money appropriated, the accused must be prosecuted and tried for embezzlement with the total amount initially determined to be appropriated. When a criminal case has similar legal circumstances and facts, the Court must apply precedent No. 19/2018 to try the defendant.

Precedent No. 19 not only argues, explains, and points out the omission of criminal acts in the crime of property embezzlement, but also shows the assessment of the nature and extent of the consequences of the wrongful act, which leads to the wrong application of the penalty framework. The defendant should have been tried under Clause 3, Article 278 of the 1999 Criminal Code, with a penalty of fifteen to twenty years. Due to the exclusion of the appropriation amount already remitted, the first-instance court applied Clause 2, Article 278 of the Penal Code 1999 with a penalty frame of between seven and fifteen years in prison to try the defendant as illegal.

Although the number of promulgated precedents is still modest, it has shown the determination of the Chief Justice of the Supreme People's Court and the Judges of the Supreme People's Court. In addition, It is recognized as an important mark on judicial reform, contributing to the transparency of court judgments and decisions, ensuring that cases with the same circumstances and legal events must be handled in the same way. The newly published precedents have partly met people's expectations, overcome shortcomings and ensure the uniform application of the law in adjudication, creating stability and transparency in legal proceedings of the Court. According to the survey results, from October 1, 2016 to February 2, 2018, only 14 provinces and cities across the country applied precedent in the trial, with 18 judgments having applied precedents and no precedents. which criminality applies. Moreover, the statistics of the Supreme People's Court demonstrated that there were about 143 judgments and decisions of the People's Courts that invoked and applied precedents (mainly invoking civil, marriage, business, and commercial precedents) from October 1, 2016 to June 10, 2018. Particularly, criminal precedents have not been invoked and applied in the adjudication activities of the People's Court system.