23/07/2022 09:28

How is the destruction of graves prosecuted for criminal liability in Vietnam?

How is the destruction of graves prosecuted for criminal liability in Vietnam?

The state always protects the people, regardless of whether that person is alive or dead. Therefore, there are regulations to protect the graves of individuals who have died, as well as sanctions for those who deliberately trespass on the graves. So how is the act of breaking graves prosecuted for criminal liability in Vietnam?

Specifically, the Judgment 05/2018/HSST dated March 5, 2018 of the People's Court of District T, Quang Nam province will illustrate the above content. As follows:

“N asked for money to buy land to build a house to live in and worship ancestors, but his family did not agree. At noon on June 9, 2017, N took a sledgehammer and N went to the altar room to take 05 relics from the altar and put it in his backpack. After that, N went to the grave of Mr. Phan Tan, took a sledgehammer and smashed it in many places on the grave. When N went to another field, N took out 05 photos and arranged them on the ground and took a photo with his mobile phone. At noon on August 20, 2017, N continued to take a sledgehammer to find the grave of Mrs. Tran Thi S. Here N used the hammer to hit many places on the grave of Mrs. S. During the investigation, N confessed all of his actions."

Pursuant to Clause 1, Article 246 of the Criminal Code 1999 (amended and supplemented in 2009); Points b, h, s Clause 1, 2, Article 51; Point g, Clause 1, Article 52; Article 65 of the 2015 Penal Code (amended and supplemented in 2017), the People's Court of Quang Nam province decided that defendant  Phan Tan Tran N  committed the crime of "Infringing the grave".

Penalty for defendant: Phan Tan Tran N 06  (Six) months in prison but the suspended sentence. The probation period is  12  (Twelve) months, from the date of the first-instance judgment on March 5, 2018 and the defendant Phan Tan Tran N must continue to pay Mr. million five hundred thousand dong) and returned 04 photos (with 05 photos) to Mr. Phan Tan A.

Article 246. Interfering with human corpses, graves and/or remains

"1. Those who dig and/or destroy graves or tombs, appropriate objects left therein or thereon or commit other acts of interference with human corpses, graves or tombs and/or remains, shall be sentenced to non-custodial reform for up to one year or between three months and two years of imprisonment.

2. Committing the crime and causing serious consequences, the offenders shall be sentenced to between one and five years of imprisonment."

The Court's application of Article 246 of the 1999 Criminal Code to settle instead of Article 319 of the 2015 Penal Code because it was found that the defendant's offense was committed before the date of the 2015 Criminal Code (amended and supplemented) supplemented in 2017) takes effect. At the time of trial, the Criminal Code 2015 (amended and supplemented in 2017) took legal effect. At the time of committing the crime, the defendant's criminal act was violated according to the provisions of Clause 1, Article 246 of the Criminal Code 1999 and the punishment was lighter than that of Article 319 of the 2015 Criminall Code. In favor of the offender, the Court applies Clause 1, Article 246 of the Penal Code 1999 to sanction the accused. The Court's decision is based on Point b, Clause 1, Article 2 of Resolution No. 41/2017/QH14 :

Article 2. Application of the 2015 Penal Code

" 1. From January 1, 2018, the 2015 Penal Code applies as follows:

b) The provisions of the 2015 Penal Code eliminate a crime, a penalty, an aggravating circumstance; prescribe lighter penalties, new extenuating circumstances; Penal liability exemption, penalty exemption, penalty reduction, criminal record remission and other provisions in favor of offenders are also applied to offenses committed before 00:00 on the 1st of January. January 2018 but after that time they are discovered, are being investigated, prosecuted, tried, or are being considered for reduction of the sentence serving term or criminal record remission.

…”

That is criminal liability, but about civil liability, with acts of N, N must be responsible for compensation for damage in accordance with civil law, liability to compensate for damage caused by infringing upon the body, graves belong to the group of liability to compensate for damage outside the contract. Specifically, according to the provisions of the Civil Code 2015 of Vietnam as follows:

Article 607 Compensation for damage caused by trespassing

" 1. Individuals or legal entities that infringe upon the graves of others must compensate for damage.

2. Damage caused by trespassing graves includes reasonable expenses to limit and remedy the damage.

3. The person responsible for compensation in case another person's grave is infringed must pay compensation according to the provisions of Clause 2 of this Article and another sum of money to compensate for the mental loss of their relatives according to the order. order of inheritance of the deceased; if these people are not available, the person who directly takes care of the dead person is entitled to this money. The level of compensation for mental loss shall be agreed upon by the parties; if no agreement can be reached, the maximum level for each infringed grave shall not exceed ten times the base salary prescribed by the State."

Grave trespass is an act of infringing upon the location of the burial of corpses, remains, and ashes of the dead according to customs, rituals, and religions of the residential community. A grave trespass is an act of trespassing on the final resting place of an individual deceased. In addition to the act of digging, breaking graves, and appropriating objects to stay in the graves or on the graves, other acts of infringing upon the bodies, graves and remains are also considered acts of infringing upon the bodies or graves. In fact, the invasion of the grave is sometimes not for the purpose of trespassing or appropriating that grave, but comes from the misunderstanding of some people, namely N, thus leading to a violation of the law on grave encroachment.

The crime of trespassing on bodies, graves and skeletons is one of the crimes with great influence on society, especially related to spiritual beliefs. Therefore, in fact, criminal acts are not handled much, difficult to detect. Therefore, with its serious nature, it is necessary to take measures to prevent and handle it in time to avoid affecting social order and security.

Truong Sa
95


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