Hello, Lawnet would like to answer your questions as follows:
On December 27, 2022, the Supreme People's Court of Vietnam issued Official Dispatch 206/TANCTC-PC on responses to a number of problems in adjudication.
Specifically, the responses 03 problems in the field of Criminal and 07 problems in the field of criminal procedure are as follows:
Problem no. 1. If a person who is 18 years old commits a crime but was previously convicted when he was less than 16 years old, is he/she a "first-time offender"?
According to the provisions of Point a, Clause 1, Article 107 of the Penal Code, convicted persons aged between 14 and 16 are considered to have no criminal record. Therefore, if a person who is at least 18 years old commits a crime but was previously convicted when he was less than 16 years old, he/she falls under the category of "first-time offender".
Problem no. 2. In case the material evidence is part of an endangered, wild, or rare animal, how should the court handle it?
According to Clause 1 of Article 7 of Resolution 05/2018/NQ-HDTP dated November 5, 2018 of the Council of Judges of the Supreme People's Court, guiding the application of Article 234 on Offences against regulations on management and protection of wild animals and Article 244 on Offences against regulations on management and protection of endangered, rare animals of the Penal Code:
"1. Handling of wild, endangered or rare animals and their products as material evidence shall be required in the following cases:
a. If the material evidence is living wild, endangered or rare animals, then right after the inspection result is received, they shall be handed over to the specialized management agency in order for this agency to release them back into the wild or hand them over to the rescue center, nature reserves, national park or other agencies and organizations as regulated by laws.
b. If the material evidence is dead animals or the products made from wild, endangered or rare animals are easily damaged, then right after the inspection result is received, they shall be disposed or handed over to the specialized management agency for handling as regulated by laws.
c. Other material evidence unspecified in clause 1a and 1b of this Article shall be confiscated or disposed as regulated by laws."
Pursuant to Point c, Clause 1, Article 7 of Resolution 05/2018/NQ-HDTP above, the material evidence that is part of endangered, wild, or rare animals shall be confiscated or disposed as regulated by laws
Problem no. 3. Will the act of destroying property in historical - cultural relics or scenic spots valued at VND 100 million fall under the crime of "violating regulations on protection and use of historical-cultural relics and scenic spots, causing serious consequences" according to Article 345 of the Penal Code or the crime of "destroying or intentionally damaging property" under Article 178 of the Penal Code, or both?
In case a person destroys property in a historical-cultural relic site or a scenic spot, but the act of destruction has caused the property of the relic site to be damaged or lose its use value, the person shall be examined for penal liability for the crime of destroying or intentionally damaging property as prescribed in Article 178 of the Penal Code if there are sufficient elements constituting the crime.
Problem no. 1. The defendant committed many crimes; the prosecution prosecuted these offenses but only for one crime. When adjudicating, the court adjudicates the acts that have been prosecuted, but with two different crimes, does it violate the regulations on the limitation of the trial?
In case the defendant commits many crimes and the Vietnamese prosecution has prosecuted these offenses for one crime, pursuant to the provisions of Point b, Clause 1, Article 280 of the Criminal Procedure Code, the court shall return the file to the prosecution for additional investigation. If the prosecution still holds the decision to prosecute, the court will proceed with the trial of the case. When adjudicating, the court, based on Clause 1 of Article 298 of the Criminal Procedure Code, only adjudicates acts according to the crimes prosecuted by the prosecution.
Problem no. 2: The defendant is an accomplice in a case. During the trial, the defendant died. The defendant has his own property to compensate for the damage. Does the court allow the deceased defendant's heirs to participate in the proceedings to settle the civil liability part? If yes, how do we determine the legal status of these people? When a judgment is made on the defendant's obligation to compensate for damage, is it in the direction of forcing the defendant's heirs to be responsible for performing the obligation to compensate for damage left by the defendant within the estate or simply declaring the remaining accomplices jointly responsible for compensating and separating the accomplices' compensation claims (who have performed joint obligations on behalf of the deceased defendant) for the heirs of the defendant's property to settle into another civil case?
If the case can be settled in the same case, when settling the part of civil liability for compensation for damage, the court shall bring the defendant's property heir to participate in the proceedings as a person with related interests and obligations. When performing the compensation obligation, according to Article 615 of the Civil Code, the heir is responsible for performing the property obligation within the scope of the estate left by the deceased.
If the case cannot be resolved in the same criminal case, the court will force the remaining accomplices to be jointly responsible for compensating for damages. Pursuant to the provisions of Article 30 of the Criminal Procedure Code, the court separates the civil case (which settles the compensation obligation between other defendants and the defendant's heirs) according to civil procedures.
Problem no. 3. In the same criminal case with many defendants, each defendant is prosecuted under different sections of the same law or prosecuted under different crimes. Therefore, the time limit for temporary detention of the accused and defendants for trial preparation is calculated according to the time limit of the accused and defendants with the longest temporary detention period or calculated according to the temporary detention time of each type of crime corresponding to each accused or defendant?
This issue was previously guided in Resolution 04/2004/NQ-HDTP dated November 5, 2004 of the Council of Judges of the Supreme People's Court guiding the implementation of a number of regulations in the third part of the "first-instance trial" of the Criminal Procedure Code 2003. Through the review, it was found that the content of the guidance in this Resolution is still consistent with the provisions of the Criminal Procedure Code 2015. Therefore, for the case in which many defendants are prosecuted for many different crimes (less serious crimes, serious crimes, very serious crimes, especially serious crimes), the time limit for temporary detention for each defendant must not exceed the time limit for trial preparation for the most serious crime for which such defendant is prosecuted.
Problem no. 4. The appellate trial panel has the right to amend the first-instance judgment in a more favorable direction in terms of court costs, improper application of aggravating circumstances of criminal liability. Based on what provisions of law for the Appellate Trial Panel to correct these contents?
Although Clause 1, Article 357 of the Criminal Procedure Code does not stipulate that the Appellate Trial Panel has the right to amend the first-instance judgment on court costs, the application of aggravating circumstances is incorrect. If the correction of these two contents is favorable to the defendant, the trial panel may apply the provisions of Article 345 of the Criminal Procedure Code on the appellate trial scope to correct these two contents of the first-instance judgment. . However, the decision part of the judgment should be based on both Article 345 and Article 357 of the Criminal Procedure Code.
Problem no. 5. When the court requests to extract the accused, and the defendant is serving a prison sentence in another case to serve the request for trial in addition to the written request for extraction, does the court still have to supplement the decision on temporary detention for inmates who are accused or defendants during the extraction time?
In this case, it was instructed in Section 3, Part II of Official Dispatch 89/TANDTC-PC dated June 30, 2020 of the Supreme People's Court on reponses to a number of problems in the trial: "For the accused or defendants who are serving a prison sentence in a previous case, they will not issue a decision on temporary detention but only issue a decision to extract them to serve the trial of the case. Because there are no grounds for temporary detention as prescribed in Article 119 of the Criminal Procedure Code." On the other hand, according to Article 9 of Joint Circular 01/2020/TTLT-BCA-BQP-TANDTC-VKSNDTC dated June 17, 2020 of the Ministry of Public Security, Ministry of National Defense, and Supreme People's Court, the Supreme People's Procuracy provides for coordination in the extraction of inmates and students who are serving the educational judicial measure at reformatories to serve the investigation, prosecution, and trial and has prescribed the detention regime for this case, when extracted according to the Extraction Order/Decision but not the Detention Decision.
Problem no. 6. In a criminal case, will the defendant who falls into one of the categories specified in Article 12 of Resolution 326/2016/NQ-UBTVQH14 dated December 30, 2016 of the National Assembly Standing Committee on the level of collection, exemption, reduction, collection, payment, management, and use of court fees and charges be exempted from criminal court fees?
Article 12 of Resolution 326/2016/NQ-UBTVQH14 dated December 30, 2016 of the National Assembly Standing Committee contains general provisions, so when the defendant falls into one of these cases, he is also exempt from criminal charges.
Problem no. 7. In a criminal case, at the first trial, the victim files a petition for trial in his absence, and the defense counsel representing the victim's legitimate rights and interests makes a written request to be absent and requests a postponement of the trial. In this case, does the Court postpone the trial or continue the trial of the case?
In case the victim is absent, the Court, based on Clause 1, Article 292 of the Criminal Procedure Code, considers postponing the court session or still conducting the trial.
If the Criminal Procedure Code does not provide for the absence of a defender of the legitimate rights and interests of the victim, the Court shall consider adjourning the trial. Therefore, in this case, the Court still opens the trial according to regulations. However, if the absence of a defender of the legitimate rights and interests of the victim affects the settlement of the case, the Trial Panel may, based on Article 305 of the Criminal Procedure Code, ask if anyone has requested the adjournment of the court session, if so requested, the Trial Panel shall consider and decide.
Please Login to be able to download