Nguyen Duy Giang - Do Duc Hong Ha
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| Court hearing on violations related to the Ro Soong dam renovation project, Hop Thanh commune, Cao Loc district, Lang Son province__Photo: VNA |
Resolution 27-NQ/TW dated November 9, 2022, of the 13th Party Central Committee, on further building and improvement of the law-ruled socialist State of Vietnam in the new period, sets forth tasks and solutions to prevent and combat corruption, namely: “Resolutely and persistently struggling with, preventing and repelling corruption..., promptly and strictly detecting and handling corrupt acts so that state officials do not dare to commit corruption”. In this article, the authors summarize the relevant provisions of the 2015 Penal Code regarding the crime of embezzling property, pointing out the requirements for the translation of the United Nations Convention against Corruption (UNCAC) into domestic regulations on corruption prevention and combat.
The Penal Code’s provisions on the crime of embezzling property
The crime of embezzling property is specified in Article 353 of the Penal Code (as revised in 2017) (the Penal Code) with the following characteristics:
Firstly, it is a crime of material constitution, involving the act of an offender abusing his position and powers to appropriate property under his management which is valued at VND 2 million or more or which is valued at under VND 2 million, while the offender has previously been disciplined for embezzling property or has been convicted of one of the corruption crimes and has not yet had his criminal records expunged.
Such act of appropriating property is directly related to the offender’s position and powers, or in other words, if the offender does not have such position and powers, it is difficult or impossible for him to commit the act of appropriating property. Position and powers are favorable conditions for offenders to appropriate property easily.
Secondly, the subject of the crime of embezzling property must first of all be a person who has position and powers and is responsible to manage the property he appropriates. A position holder is a person who is appointed, elected, contracted or assigned in another form, paid or unpaid, to perform a certain job and has certain powers while performing official duties or tasks (including also persons having powers in non-state enterprises and organizations). In addition to state officials and civil servants, offenders committing the crime of embezzling property may also be persons who are contracted or assigned to perform certain jobs related to the management of property on a regular or seasonal basis by state agencies, political organizations or socio-political organizations. They must be those responsible for property management, including cashiers, storekeepers, accountants, persons assigned to transport property of their agencies, organizations or units, etc., because if not in charge of property management, they are unable to commit the crime of embezzling property. This is a sign to distinguish the crime of embezzling property from some other crimes of appropriation nature.
In addition, persons who are not assigned to directly manage property but are responsible for deciding on revenues, expenditures, import, export, purchase and sale, and exchange of property, such as directors of companies, heads of cooperatives, and heads of agencies and organizations who act as account holders or have the right to decide on property of their agencies and organizations, are also likely to commit the act of embezzling property. The determination of a person’s responsibility for property management is very important, because the wrong determination can make his act of embezzling property easily be confused with other crimes of appropriation nature specified in Chapter XVI of the Penal Code. Examples include the crimes of stealing property, openly appropriating property, appropriating property through swindling, abusing trust in order to appropriate property, etc. An offender who appropriates the property under his management through a deceitful trick may be regarded as having committed the crime of embezzling property. Meanwhile, the act of appropriating property through a deceitful trick committed by a person not responsible for property management or by a person in charge of property management but appropriating property not under his management will constitute the crime of appropriating property through swindling.
Due to the special characteristics of the crime of embezzling property, criminal law science believes that the subject of this crime is a special subject, i.e., only people with positions and powers can embezzle property. However, this affirmation is only true for cases where embezzling offenders have no accomplices because in cases where there are accomplices, such an accomplice may be a person having no position and power.
Thirdly, the Penal Code contains specific provisions on handling of the crime of embezzling property:
· It specifies only aggravating circumstances (mainly the circumstance of appropriating property and the circumstance of causing property damage) and does not provide extenuating circumstances;
· It requires both people with positions and powers in state agencies and organizations and non-state enterprises and organizations to be criminally handled;
· It shows the State’s strict punitive attitude toward the crime of embezzling property by providing no statute of limitations for examination for penal liability for this crime classified as a very serious crime or a particularly serious crime;
· It provides exemption from execution of the death penalty for persons sentenced to death for this crime who, after being convicted, have returned at least three-quarters of embezzled property and actively cooperated with authorities in detecting, investigating and handling the crime or made great achievements.
Requirements on translation of the UNCAC into domestic regulations
The UNCAC aims to form a global legal framework for cooperation between the State Parties in anti-corruption activities through effective prevention and combat measures. Its Article 1 affirms: “To promote and strengthen measures to prevent and combat corruption more efficiently and effectively; to promote, facilitate and support international cooperation and technical assistance in the prevention of and fight against corruption, including asset recovery”.
It obliges the State Parties to translate the criminal provisions in Articles 15 thru 25 into domestic regulations, including the crime of embezzlement; misappropriation or other forms of appropriation by a public official; abuse of influence for personal gain; abuse of functions; misappropriation of property in the private sector, etc.
Recommendations on improvement of the Penal Code’s provisions on the crime of embezzling property
Based on the Penal Code’s relevant provisions on the crime of embezzling property, the requirements on translation of the UNCAC into domestic regulations, and experience of the advanced countries, we propose some improvements to the provisions on the crime of embezzling property.
Firstly, the sign for determining the crime “causing property damage” should be added to Article 353.1 of the Penal Code.
The sign “causing property damage” is currently specified only as a sign for determining penalty brackets for penal liability aggravation in Clauses 2, 3 and 4, Article 353 with the value of damaged property of at least VND 1 billion.
It is more appropriate to specify the sign “causing property damage” in Article 353.1 because this sign is independent from the sign of value of appropriated property. Moreover, Article 353.1 currently specifies the sign of value of appropriated property (together with the sign that the offender has been disciplined or convicted). This might lead to “unfairness” between prosecuted offenders.
For example: A has committed an act of abusing his position and powers to appropriate property under his management that is worth VND 1 million, without causing property damage, but he has previously been disciplined for this act; he is therefore regarded as having committed the crime of embezzling property under Article 353.1 of the Penal Code. B has abused his position and powers to appropriate property under his management that is worth VND 2 million, without causing property damage; in this case, he is also regarded as having committed the crime of embezzling property under Article 353.1. Meanwhile, C has abused his position and powers to appropriate property under his management that is worth VND 1.5 million and caused property damage of VND 900 million, but he is still not regarded as having committed the crime of embezzling property. In order to ensure fairness and not to omit this dangerous criminal case, lawmakers should add the sign for determining the crime “causing property damage” to Article 353.1.
Secondly, the phrase “other social policy beneficiaries” should be added after the phrase “for people with meritorious services to the revolution” to Article 353.2.dd of the Penal Code. This is because other social policy beneficiaries also need to be protected from the acts of appropriating money or assets designated for hunger elimination and poverty reduction or as allowances for people with meritorious services to the revolution. These policy beneficiaries include retirees, victims of occupational accidents, relatives of resistance war activists infected with toxic chemicals who are entitled to preferential regimes (such as natural children suffering deformities as a result of toxic chemicals, unable to help themselves in daily-life activities, and entitled to monthly allowances; natural parents, spouses, children aged between full 6 years and under 18 years or aged full 18 years or older who still go to school or suffer severe disabilities or particularly severe disabilities, are contaminated with toxic chemicals, leading to working capacity decrease of 61 percent or more, and have health insurance premiums paid by the State, etc.).
At the same time, it is suggested to additionally specify some other signs for determining penalty brackets for aggravating circumstances for the crime of embezzling property. Particularly, the authors recommend adding the following aggravating circumstances in the Penal Code’s section on position-related crimes, including the crime of embezzling property, so as not to omit and have more grounds for strictly handling embezzling offenders. Such signs include:
· Knowing well that money and property are used for emergency and migration;
· Inflicting injury to, or causing harm to the health of, another person with an injury rate of 61 percent or higher;
· Causing human death.
Thirdly, to revise the provision on fine as an additional penalty in the Penal Code’s Article 353.5 in the direction that a fine will be imposed for the crime of embezzling property as a mandatory penalty, as the penalty of prohibition from holding certain positions. Also minimum and maximum fine levels should be raised to improve the deterrent effect of fines on corruption offenders.-
* The Vietnamese version of this article was published on the August 2024 issue of Procuracy Journal.
