17/12/2022 08:35

To distinguish between abuse of position and power and acting beyond authority in performance of official duties in Vietnam

To distinguish between abuse of position and power and acting beyond authority in performance of official duties in Vietnam

I'd like to know some criteria for distinguishing between 02 crimes of abuse of position and power and crimes of acting beyond authority in performance of official duties. Thank you. "My Lan-Long An, Vietnam"

Hello, Lawnet would like to answer your questions as follows:

1. Regulations on crimes of abuse of position and power and crimes of acting beyond authority in performance of official duties

The Criminal Code 2015 provides the following:

Abuse of power or position in performance of official duties is the act of any person who, for personal gain or other self-seeking purposes, abuses his/her power or position in performance of official duties to act against his/her official duties and as a result causes property damage assessed at from VND 10,000,000 to under VND 200,000,000 or otherwise infringes upon state interests, lawful rights and interests of another organization or individual.

Acting beyond authority in performance of official duties is the act of any person who, for personal gain or other self-seeking purposes, acts against his/her official duties beyond his/her authority and as a result causes property damage assessed at from VND 10,000,000 to under VND 100,000,000 or otherwise infringes upon state interests, lawful rights and interests of another organization or individual.

2. Legal signs of similarity between the crimes of "abusing position and power" and "acting beyond authority" while on official duty

Firstly, regarding the object of the crime:

Both crimes infringe on social relations to ensure the proper operation of state agencies, organizations, political organizations, and socio-political organizations (in official activities); the interests of the state; and the legitimate rights and interests of organizations and individuals.

Second, objective side:

Regarding behavior: Both crimes show signs of "disobeying official duties."

Regarding signs of consequences, both crimes define consequences in the form of:

- Property damage of ten million VND or more; or

- Other harm to the state's interests or the legal rights and interests of organizations or individuals

These two crimes have a material component; the crime is completed only when there are consequences.

Third, about the subject:

Both of these criminals are 16 years old or older, have criminal liability capacity, and have special subject signs.

The offenders of these two crimes are all persons holding positions and powers in state agencies, political organizations, and socio-political organizations while on official duty.

Fifth, Subjectively:

Both crimes were committed with direct intent.

Offenders are aware that their acts are beyond the scope of their assigned responsibilities and tasks and are contrary to official duties, knowing that such conduct will cause damage to the property or interests of the state, the lawful rights and interests of organizations and individuals,
but because of self-interest or other personal motives that consciously want the consequences to happen.

3. Legal signs with specific characteristics between the crimes of "abusing position and power" and "acting beyond authority" while on official duty

Regarding objective behavior:

For the crime of abusing positions and powers while performing official duties, it is based on assigned positions and powers to violate official duties.

Offenders use their assigned positions and powers as a "means" to commit crimes.

The crime of abuse of power while on official duty is an act beyond the scope of assigned responsibilities and tasks, thereby leading to the contravention of official duties and causing damage to the interests of the state and the legitimate rights and interests of organizations and individuals.

Persons with positions and powers who have arbitrarily done things under the authority of a higher level or of another person

Regarding the level of use of tasks and powers when performing official duties:

When committing the crime of abusing positions and powers while on official duty, the  offenders still perform the work within the scope of their assigned competence and titles.
(There is no violation in terms of the scope of jurisdiction); the offender violates the regulations on how to do the assigned work (there is a violation in terms of the authority's content).

For the crime of abuse of power while performing official duties, the offenders improperly exercise their authority while performing official duties, resulting in the incorrect implementation of the contents of their authority; or improperly exercising authority while being correct about the content of their authority.The nature of the offense is reflected in the violation of the authority to perform official duties.

4. Judgment on abuse of position and power while on duty and acting beyond authority while on duty

Judgment on abusing positions and powers while performing official duties No. 12/2022/HS-ST

Judgment on abusing positions and powers while performing official duties No. 158/2022/HS-PT

Judgment on abuse of power while performing official duties No. 16/2022/HS-ST

Judgment 225/2021/HS-PT dated May 19, 2021 for abuse of power while on duty


Best regards!

Nhu Y
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