Vietnam: Different perspectives on applying Article 341 of the Penal Code 2015

1. Vietnam: Different perspectives on criminal charges

1.1. Regarding the criminal charge

There are different perspectives on the act of purchasing (or hiring someone to make) counterfeit documents (land use certificates, driver's licenses, vehicle registration certificates, etc.) and then using them to commit illegal activities.

Scenario: A purchases a fake land use certificate from an unidentified individual in Ho Chi Minh City for 8,000,000 VND. Subsequently, A uses the fake land use certificate to deceive and embezzle 300,000,000 VND from B. The Forensic Science Technical Division of the Provincial Police Department concluded that the land use certificate used by A is fake. Based on the verification and clarification results, the District Police Investigation Agency has initiated a criminal case and charged A with the offense of "fraudulent appropriation of property." However, there are two different perspectives on A's act of purchasing and using the fake land use certificate:

First perspective: charging A with the offense of "forgery of seals, documents of agencies, and organizations"

Those who hold this perspective argue that A, through the act of providing personal information and requesting others to create counterfeit documents, has fulfilled the offense of "forgery of seals, documents of agencies, and organizations" as an accomplice. If A did not make the purchase or provide personal information, the other party would not have been able to create counterfeit seals or documents.

Second perspective: charging A with the offense of "use of fake seals, documents of agencies, and organizations"

A's act of purchasing the fake land use certificate was merely a process to obtain the counterfeit document for the purpose of deceiving and embezzling B's property. Therefore, A's act only constitutes the offense of "use of fake seals, documents of agencies, and organizations".

Third perspective: charging A with both the offenses of "Forgery of seals, documents of agencies, and organizations; use of fake seals, documents of agencies, and organizations"

A has committed multiple criminal acts that are closely related to each other (this offense is a prerequisite or a necessary consequence of the other offense). The act of initiating the forgery of documents with the intention of using the fake documents to embezzle property has an inherent and close relationship. Therefore, A should be held criminally responsible for all the offenses committed according to the corresponding laws.

The author believes that A should be charged with the offense of "Use of fake seals, documents of agencies, organizations" because the suspect has only committed the act of using fake seals and documents without engaging in the act of forgery.

In this case, evaluating the involvement of the suspects as accomplices in the offense of "forgery of seals of agencies, organizations" is not appropriate. The buying and selling between the suspects and the person creating the counterfeit documents is a transactional relationship based on the exchange, and it is not a criminal case with accomplice characteristics. Therefore, it is not possible to evaluate the nature of A's act of purchasing the land use certificate as an act initiated or masterminded by the suspect. Additionally, if the suspect is prosecuted for the above offense, it would not demonstrate a differentiation in the acts of the offender (between direct production and use). The concept of forgery is understood as the act of "creating documents"—acts performed physically by individuals or machines, such as cutting, pasting, printing, copying, or the role of accomplices in instigating, initiating, or assisting the offender in committing forgery. In reality, the purchase of fake seals and documents, whether through online or offline transactions, is common. During the transaction, the buyer must provide information and the type of seal or document that needs to be counterfeited, as per the request of the person creating the counterfeit documents. If the concept of forgery is equated with the act of purchasing fake documents, there would be no distinction between the act of using and the act of forgery, or if there is, it would only occur in very rare cases where one obtains counterfeit documents (not purchased by oneself) and then uses them.

In addition, in this case, the Department of Natural Resources and Environment is a state agency (not an organization) with a seal, and the documents affected by the criminal act, so the law accurately quoted in this case must be the crime of "using counterfeit seals and documents of agencies" instead of "using counterfeit documents of agencies and organizations.".

1.2. Trial practice

In trial practice, there have been many cases at all levels of the People's Court with different perspectives and awareness regarding the act of purchasing counterfeit land use right certificates and then using them, resulting in different charges applied to different defendants. Specifically:

The first case: Around March 2019, through the social network Facebook, H bought an Airblade motorcycle with engine number VD68H152QMIN 0001517, chassis number RNDSCJ2MD41-001517 from a person named Ngoc in Ho Chi Minh City for 18,000,000 VND. Since the motorcycle was not registered under his name, the defendant had the intention of hiring someone to create a counterfeit certificate of motorcycle registration with a license plate from Ca Mau Province and put his name on it to use when dealing with traffic police. To carry out this plan, Huynh Trung H contacted a person with a Facebook account named "Hoang Long" to create a counterfeit certificate of motorcycle registration with the license plate 69M1-024.68 under the name Huynh Trung H for 2,000,000 VND. After using the motorcycle with the counterfeit certificate of motorcycle registration, Huynh Trung H posted information on the website Cho Tot: Selling a motorcycle with license plate 69M1-024.68 for 16,000,000 VND, and Mai Huu D agreed to buy it for 12,000,000 VND. When Huynh Trung H and D went to Mai Huong Notary Office to make a purchase contract for the motorcycle, the counterfeit certificate of motorcycle registration for H was discovered.

In Conclusion of Examination No. 104/GD-2019 dated August 9, 2019, by the Forensic Science Department of Ca Mau Provincial Police, the conclusion stated: "The certificate of motorcycle registration" No. 017018, owner's name Huynh Trung H, license plate number 61M1-024.68, reissued for the first time on February 14, 2019, is counterfeit.

In the First-instance Criminal Judgment No. 104/2020/HS-ST dated June 9, 2020, by the People's Court of Ca Mau City, based on Clause 1, Article 341 of the Penal Code, the defendant Huynh Trung H was declared guilty of the crime of "using counterfeit documents of agencies and organizations.".

In Appellate Criminal Judgment No. 89/2020/HS-PT dated August 26, 2020, by the Provincial People's Court of Ca Mau, the declaration of the defendant's guilt of "using counterfeit documents of agencies, organizations" was maintained.

The second case: From around December 2018, Tran Thi Le H had the act of hiring someone (unidentified) to create a counterfeit land use right certificate, ownership rights to houses and assets attached to land under the name Tran Thi Le H for a plot of land numbered 01, map sheet number 94, with an area of 535 m2, located in Thon L, Commune M, District C, Lang Son Province, with the purpose of using it as collateral for a loan. After completing the counterfeit land use right certificate, ownership rights to houses and assets attached to land were subsequently discovered by Tran Thi Le H.

In the First-instance Criminal Judgment No. 26/2020/HS-ST dated April 23, 2020, by the District Court of Chi Lang, Lang Son Province, based on Clause 1, Article 341, the defendant was declared guilty of the crimes of "forging documents of agencies, organizations" and "using counterfeit documents of agencies and organizations.".

The third case: Around April 2019, Vu C provided information about the addresses of M Street, Ward 5, District 3, and K Street, Ward 6, District 3, and his own photos to a person using the Zalo nickname "XX" to create two counterfeit household registration books under the name of head of household Mai D at the addresses of M Street, Ward 5, District 3, and K Street, Ward 6, District 3, with the name Mai K in the household registration, and one counterfeit identity card and one counterfeit driver's license under the name Mai K for the purpose of borrowing unsecured loans. After that, C used the household registration book with the address of M Street, Ward 5, District 3 to contact "DK" (the online lender) and went to the address with Dung to apply for a loan. The loan application was approved, and C received a loan of 50,000,000 VND.

In the First-instance Criminal Judgment No. 45/2020/HS-ST dated June 15, 2020, by the People's Court of District 3, Ho Chi Minh City, based on Clause 1, Article 341, the defendant was declared guilty of the crimes of "forging documents of agencies, organizations" and "using counterfeit documents of agencies and organizations.".

These cases demonstrate that the act of using counterfeit documents from agencies or organizations can be charged as a separate crime, in addition to the crime of forging such documents. The specific charge depends on the circumstances of each case and the intent of the defendant.

2. Basic structure

Situation: A and B have a romantic relationship. B often criticizes A for being poor and says that A does not have enough money to buy a house and support B's livelihood. Thinking that B looks down on them, A fakes a seal of the local police station X, then takes a photo and posts it on social media with the purpose of making B believe that A's family is wealthy and will not criticize A for being poor. A's behavior is later discovered by the police, and they proceed to handle the situation. The resolution process involves two perspectives on how to deal with A:

First perspective: A should be prosecuted for the offense of "counterfeiting an official seal."

A engaged in the act of counterfeiting a seal—this seal belongs to an agency with the authority to use it. A is not a person with the position, power, or authority to create or use the aforementioned seal. Therefore, A's behavior fulfills the elements of the offense of counterfeiting an official seal as stipulated in Article 341 of the Penal Code.

Second perspective (also the author's perspective): no prosecution, only administrative punishment for A's behavior.

Although A is not authorized to create or use the seal of Police Station X, they still engaged in the act of faking a seal and then took a photo to post on social media. However, A's criminal intent was not to commit illegal acts, but only to make B believe that A's family is wealthy. The actual content of the case shows that after faking the aforementioned seal, A only posted it on social media for B to see without using the (fake) seal to carry out other illegal acts.

Article 341 of the Penal Code stipulates: "Anyone who counterfeits a seal, document, or other papers of an agency or organization, or uses a fake seal, document, or papers to commit illegal acts, shall be fined from 30,000,000 to 100,000,000 VND, subjected to non-custodial reform for up to 3 years, or imprisoned from 6 months to 2 years." Those who hold the first perspective argue that the phrase "to commit illegal acts" is associated with the act of using a fake seal, document, or paper and does not fall within the scope of the act of counterfeiting. As long as someone who meets the competency requirements (excluding other cases as specified in the Penal Code) engages in the act of counterfeiting a seal, document, or other paper of an agency or organization, they will be subject to the penalties specified in this Article. The author believes that this perspective is not accurate.

Considering the structure of Article 341, it can be seen that the phrase "to commit illegal acts" is connected to both the act of counterfeiting and the act of using. According to the Vietnamese dictionary, the word "hoặc" (or) is used to indicate a selective relationship between two things; if one exists, the other does not, and vice versa. In the same paragraph, if the phrases are separated, they can form a sentence with a similar meaning (e.g., "Either he or I have to stay—in other words, either he has to stay or I have to stay"). Therefore, the provision in Article 341 must be understood specifically as: "Anyone who counterfeits a seal, document, or other papers of an agency or organization to commit illegal acts, or anyone who uses a fake seal, document, or papers to commit illegal acts." This structure can also be found in other laws. For example, "anyone who unlawfully appropriates, buys, or destroys seals, documents of agencies or organizations that are not classified as state secrets or work secrets." If we follow the first perspective and separate the act of appropriation or buying into a separate clause not connected to the phrase "seals, documents of agencies or organizations that are not classified as state secrets or work secrets," it would render that part of the sentence meaningless (appropriates, buys what?).

The current regulations on administrative penalties serve as a boundary to distinguish between acts with criminal elements that require criminal prosecution and acts that only warrant administrative punishment. Point d, Clause 4, Article 12 of Decree 167/2013/ND-CP on administrative penalties in the fields of security, public order, social safety, prevention of social evils, fire prevention and fighting, and prevention of domestic violence stipulates: "A fine from 5,000,000 to 10,000,000 VND for one of the following acts: a)…b)…;c)…;d) faking a seal or using a fake seal." It can be seen that this provision clearly distinguishes between the act of counterfeiting a seal to commit illegal acts and the act of counterfeiting a seal for other purposes. Therefore, in the given situation, A's behavior would only be subject to administrative punishment.

The above are some perspectives from the author on how to deal with A's behavior of faking a seal and posting it on social media. Ultimately, the decision on whether to prosecute A or impose administrative punishment would depend on the interpretation and application of the relevant laws and regulations by the authorities handling the case.

NGUYEN DUC HA (People's Procuracy of An Nhon town, Binh Dinh province).

Source: "Tạp chí Toà Án" (Court Journal)

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