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Friday, October 7, 2022

Position-related crimes in French-ruled Vietnam's criminal law

Updated: 16:29’ - 04/03/2011

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Pham Diem      
State and Law Research Institute

 

During the French domination, Vietnamese law makers attached great importance to prescribing the position-related crimes in the then criminal laws. They devoted a whole chapter, Chapter XIII, on crimes committed by officials and public employees, of “Hoang Viet Hinh Luat” (the Penal Code of the Vietnamese Emperor).

1. Conception of the position-related crimes

The ancient lawmakers devoted the first three articles of this Chapter to giving the general idea about this kind of offenses.

According to Article 156, the crimes committed by officials or public employees working at public offices were classified into two types: public offenses and personal offenses. Public offenses were those committed unintentionally due to one’s errors and not for personal interests while performing one’s official duties. Yet, when the crimes were committed with intention and for personal interests, they were regarded as personal offenses even if they were related to public duties.

Article 157 of the same Code defined that public offenses were neither grave crimes, petty crimes nor nuisance offenses; hence, they were only subject to administrative sanctions.

Meanwhile, according to Article 158, the personal offenses committed by officials or public employees, which were not related to their positions, would not be considered the position-related offenses.

So, it can be realized through the above provisions that a position-related crime had to be constituted by the following elements:

- The subject of the crime must be the official or public employee working at public office.

- The crime was committed with intention.

- The crime was committed for personal interests.

- The criminal act was directly related to position.

2. Specific position-related crimes

After having given the general definition, the lawmakers prescribed in various articles of Hoang Viet Hinh Luat specific position-related crimes, including bribery, corruption, abuse of power and some others.

a/ Bribery

Article 159 defined acts of bribery as follows: “Bribery is an act whereby a party gives and another party receives some material benefit in order to perform or not to perform some job belonging to the duties of a public employee, which may be an administrative job or a judicial job; and such material benefit is not the fee prescribed by law.”

Also according to this Article, those who gave bribes would be charged with bribe giving as bribe givers and those who received bribes would be charged with bribe taking as bribe takers.

This type of crime was described in detail in various articles such as Article 160 which stated: If an official or his representative, or a person authorized by an administrative official or a judicial official performs or does not perform a job which he/she is obliged to do and asks for bribe, he shall be imprisoned for 3 months to 5 years or subject to a fine of between 30 and 600 dong (former Indochinese currency); or Article 161, which added: Despite whether a person receives bribe before or after performing a job, or despite a person just only agrees to perform a job but not yet received the bribe, such person would be charged with bribery. This Article also mentioned extenuating and aggravating circumstances such as the promise to perform a job or reception of bribe; the bribes of small or big value; the bribe takers’ high or low positions.

Regarding the bribe giving, Article 162 stipulated: Those who give bribes or promise to give bribes or attempt to bribe shall all be charged with bribery like bribe takers as provided for in Article 160. In cases where a person is forced to give bribe or has promised to give but not yet given bribe, he/she shall enjoy less severe penalties, concretely a prison term of one to ten months or a fine of between 10 and 100 dong. The bribe givers shall be exempt from prosecution if they denounce the bribery with mandarins and they have been forced to give bribes (Article 162).

According to Article 164, for both bribe giving and bribe taking, the principals would be punished more severely than the accomplices.

Particularly, under Article 165, servants, underlings, relatives, wives or children of officials, who take advantage of such officials’ positions and powers to harass for bribes, would all be punished with a prison term ranging from 3 months to 3 years or given a fine of between 30 and 360 dong.

b/ Corruption

According to Articles 166 and 167 of the Code, those officials, their representatives or authorized persons who, on behalf of the State and official duty, collect money from others for their own use or collect money in excess of the levels prescribed by the State for themselves, shall be imprisoned for between 6 months and 5 years and fined with a amount doubling the collected amount.

Article 168 also stated: Officials who launch fund-raising campaigns among population on their own without permission of their superior mandarins would be subject to a prison term of between 3 months and 1 year or a fine of between 30 and 120 dong; and their accomplices would enjoy penalty half less severe than the above penalty.

Meanwhile, according to Article 168, officials who abuse their positions and powers to appropriate public fund for their own use shall, depending on the amounts they have appropriated, be imprisoned for between 2 months and 5 years and pay a compensation doubling the appropriated amounts. If the offenders voluntarily return the appropriated money before being brought to trial, they shall only be fined. If they return the money after being convicted, they shall be considered for commutation.

c/ Abuse of powers

According to Article 174, those judges who deny appeals of any defendants shall be subject to a prison term of between 1 month and 1 year and a fine of between 10 and 120 dong.

Meanwhile, Article 175 stipulated: Officials who, for their personal interests, interfere in affairs not falling under their jurisdiction shall be sentenced to between 1 and 6 months in prison and a fine of between 10 and 60 dong.

Officials who, for their personal interests, harass people or refuse to consider thoroughly complaints or lawsuits shall be imprisoned for between 1 and 20 months or fined with between 10 and 200 dong (Article 176).

Any officials who arbitrarily arrest people or maltreat others while performing their official duties shall be imprisoned for between 1 month and 2 years or fined with between 10 and 240 dong.

d/ Other offenses

Under Article 180, officials would be subject to a prison term of between 1 month and 2 years or a fine of between 10 and 240 dong if they commit one of the following offenses:

- Knowing that malefactors are in their localities but failing to report such to their superior mandarins.

- Covering up and failing to report to their superior mandarins on incidents, epidemics, natural disasters, which have occurred in their localities.

Article 181 stated: If officials falsely declare the number of house-holds in their localities to evade tax, they would be sentenced to a prison term of between 1 month and 2 years and a fine doubling the evaded tax amount.

Officials who fail to obey orders of their superiors or judicial officials without any plausible reasons would be sent to prison for between 1 and 6 months or fined with between 10 and 60 dong (Article 182).

Officials who seize public land of villages and communes would be imprisoned for between 1 month and 2 years or fined with between 10 and 240 dong (Article 184).

Those officials who, for their personal interests, delay the processing of cases or fail to adjudicate cases beyond the statute of limitations would be imprisoned for between 1 and 3 months or fined with between 10 and 30 dong (Article 185).

Officials who have been relieved from office, demoted or retired, but fail to abide by the decisions thereon and to hand over their seals would be imprisoned for between 1 and 6 months or fined with between 10 and 60 dong (Article 186).

Officials who, while performing their official duties, refuse to rescue other people at the latter’s request would be imprisoned for 1 to 2 months or fined with between 10 and 20 dong (Article 188).

Many other position-related crimes were also specified by the Code.-
VNL_KH1 

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