07/10/2022 08:53

Crimes of illegal use of property

Crimes of illegal use of property

Illegal use of assets specified in Article 177 of the Criminal Code in 2015, which currently has a number of shortcomings, needs to be studied for amendments and supplements.

1. Regulations of the law

Unauthorized use of property is an act of using another person's property without the consent of the owner or lawful manager of the property, committed intentionally by a person of full age in accordance with BLHS's regulations who has the capacity to bear criminal responsibility, infringing upon the property ownership rights of an agency, organization or individual. According to the provisions of Clause 1, Article 177 of the Criminal Code: "Any person who, for self-seeking purposes, illegally uses a piece of property of another person which is assessed at from VND 100,000,000 to under VND 500,000,000 despite the fact that he/she has incurred a disciplinary or administrative penalty for the same offence or has an unspent conviction for the same offence; illegally uses a property which is a relic, an antique or an item of historical or cultural value, except in the circumstances specified in Article 220 hereof, shall be liable to a fine of from VND 10,000,000 to VND 50,000,000 , face a penalty of up to 02 years' community sentence or 03 - 24 months' imprisonment."

The objective side of this crime is represented by the act of unauthorized use of another person's property. Unauthorized use of another person's property is the act of exploiting and benefiting from the property of another person in an unauthorized manner. In which: the yield is the natural asset that the asset brings; the profit is the profit earned from the exploitation of the asset. According tothe provisions of Clause 1 of Article 177 the Criminal Code, there are three cases of illegal use of the following assets:

- First case: illegally uses a piece of property of another person which is assessed at from VND 100,000,000 to under VND 500,000,000 despite the fact that he/she has incurred a disciplinary. This is the case, in which there have been previous illegal uses of property and have been disciplined or administratively sanctioned but have not yet expired the time limit considered as not disciplined or administratively sanctioned. Currently, the illegal use of property has a value of from VND 100,000,000 to under VND 500,000,000.

- Second case:  illegally uses a piece of property of another person which is assessed at from VND 100,000,000 to under VND 500,000,000 despite the fact that he/she has administrative penalty for the same offence. This is the case after being convicted of illegal use of property, which has not been expropriated, now committing the act of unauthorized use of property valued at VND 100 millionor more.

- Third case, the illegal use of property used is relics and antiques valued at under VND 500,000,000.

The above-mentioned cases are only considered as crimes of illegal use of property when such acts do not fall into the following cases: Violation of regulations on management and use of State property causing loss or waste specified in Article 219; Violation of regulations on management and use of public investment capital causing serious consequences specified in Article 220 of the Penal Code.

2. Shortcomings

Regarding legislative techniques, we believe that the provisions of Clause 1 of Article 177 BLHS have the following shortcomings:

- Firstly, in case there have been multiple disciplinary or administrative sanctions for the illegal use of property valued from VND 100,000,000 to under VND 500,000,000 but the time limit has not yet expired, it shall be considered as having not been disciplined or administratively sanctioned and continue to carry out the illegal use of property valued at  under VND 100,000,000 without being considered the illegal use of property.

- Secondly, if the conviction for illegal use of property has not yet expired, it is considered that the conviction has not yet continued to be carried out (even many times) the illegal use of property valued at under VND 100,000,000 is not considered an illegal use of property.

- Thirdly, for relics and antiques, all illegal use of property being relics and antiques of other persons valued less than VND 500,000,000 shall be considered as illegal use of property.

To prescribe the value of illegally used property (under VND 500,000,000) as co-rating the objects of crime (being relics and antiques) with the objects of crime (being ordinary property). If that is the case, the provisions of Clause 1, Article 177 BLHS acknowledges the phrase "or under VND 500,000,000 but the property is relics and antiques".

- Fourthly, in line with the provisions of Clause 2, there will be cases of not satisfying the signs of guilt but still being sanctioned according to the provisions of Clause 2, Article 177 of The Criminal Code.

For example: In case of illegal use of another person's property valued at from VND 500,000,000 but not yet disciplined, administratively sanctioned for this act or convicted of this crime, the property shall still be considered to be used illegally as prescribed in Clause 2, Article 177 of The Criminal Code.

3. Incorrective recommendations

In order to overcome the above shortcomings, it is recommended to amend and supplement Clause 1 of this Law as follows:

"1. Those who illegally use property of other persons assessed at from VND 100,000,000 to under VND 500,000,000 or under VND 100,000,000 in one of the following cases, except for the cases specified in Article 219 and Article 220 of this Code, shall be subject to a fine of from VND 10,000,000 to VND 50,000,000 or face a penalty of up to 02 years' community sentence or 03 - 24 months' imprisonment:

a) They have already been disciplined or administratively sanctioned for such act, have not yet reached the end of the time limit considered as not being disciplined or administratively sanctioned but still commit it;

b) The offender has a previous conviction for the same offence which has not been expunged;

c) Assets are relics and antiques."

Master. MAI BO (General Department of Politics of the People's Army)

Source: Electronic People's Court Journal

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