Hello, The Lawnet would like to answer the following questions:
The Criminal Code 2015 stipulates the following:
Article 356. Abuse of power or position in performance of official duties
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 shall face a penalty of up to 03 years' community sentence or 01 - 05 years' imprisonment.
This offence committed in any of the following circumstances carries a penalty of 05 - 10 years' imprisonment:
a) The offence is committed by an organized group;
b) The offence has been committed more than once;
c) The property damage caused by the offence is assessed at from VND 200,000,000 to under VND 1,000,000,000.
If The property damage caused by the offence is assessed at ≥ VND 1,000,000,000, the offender shall face a penalty of 10 - 15 years' imprisonment.
The offender might also be prohibited from holding certain positions or doing certain jobs for 01 - 05 years, liable to a fine of from VND 10,000,000 to VND 100,000,000.
1. Signs of the crime of abuse of power or position in performance of official duties
The subject of the crime
The subject of the crime is an office-holder.
According to Clause 2, Article 352 of the Criminal Code 2015, an office-holder means a person who is given certain duties and power through appointment, election, contract conclusion or another method. An office-holder might or might not receive salaries.
If the person causing damage to society has no sign of position or authority, the act of causing damage may constitute another crime.
The subjective side of crime
The fault of the offender is intentional.
Criminal motives are self-interest or other personal motives. Self-interest is the motive for seeking material benefits for oneself, for others, or for a certain group of people. Other personal motivations may be to strengthen personal status, prestige, or personal power without seeking material gain.
The object of the crime
Crime of abusing positions and powers while performing official duties to directly infringe on the proper operation of agencies and organizations; weakening agencies and organizations, losing credibility and people's trust in the State.
The objective side of the crime
This crime's objective behavior is an act of abusing positions and powers to violate official duties.
Thus, not performing or performing improperly or incompletely assigned tasks constitutes a violation of official duties.
The consequences of a crime are obligatory indicators, namely that the criminal act must harm the interests of the state, society, and the legitimate rights and interests of organizations and citizens. The consequences of crime can range from material damages such as loss of life, health, or property to non-material damages such as loss of reputation, loss of honor, loss of human dignity, and so on. When there are consequences, the act of abusing positions and powers to violate official duties is considered a crime.
Criminal tricks are abusing positions and powers, that is, offenders use their assigned powers as a means of committing crimes to commit crimes.
+ Basic frame: Non-custodial reform for up to 03 years or imprisonment from 01 to 05 years;
+ Heavy frame:
Imprisonment from 05 years to 10 years (Clause 2, Article 356)
Imprisonment from 10 to 15 years (Clause 3, Article 356)
+ Additional penalties: Ban from holding certain positions for 1 to 5 years, and be fined from VND 10,000,000 to VND 100,000,000.
2. Some judgments on abuse of power or position in performance of official duties
Judgments on abuse of power or position in performance of official duties No. 14/2022/HS-ST
Judgments on abuse of power or position in performance of official duties No. 28/2022/HS-PT
Judgments on abuse of power or position in performance of official duties No. 158/2022/HS-PT
Judgments on abuse of power or position in performance of official duties No. 33/2022/HS-ST
Judgments on abuse of power or position in performance of official dutiess No. 100/2020/HS-PT
Judgments 283/2021/HS-PT dated April 16, 2021 on abuse of power or position in performance of official duties