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VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES TRAN HUY DUC CRIME OF CORRUPTION UNDER VIETNAM’S CRIMINAL LAW FROM THE REALITY OF DA NANG CITY Major: Criminal and Criminal Law Code: 9380104 SUMMARY OF LAW PHD THESIS HANOI, 2019 The work was completed at GRADUATE ACADEMY OF SOCIAL SCIENCES Scientific Supervisor: Assoc Prof PhD Ho Sy Son Reviewer 1: Prof PhD Duong Minh Gioi Reviewer 2: Assoc Prof PhD Cao Thi Oanh Reviewer 3: Assoc Prof PhD Tran Huu Trang The dissertation will be defended before the thesis review council of the Academy at the Graduate Academy of Socil Sciences at 17 o'clock on April 12, 2018 The thesis can be found at: - National Library of Vietnam - Library of Graduate Academy of Socil Sciences INTRODUCTION The urgency of the thesis Corruption is one of the biggest obstacles to the stability and development of each country, which seriously reduces the country's development resources In Vietnam, corruption in general and corruption crimes in particular have been very complicated in many industries, levels, sectors and have caused bad consequences in many aspects, reducing people's trust in recent years In Da Nang city, anti-corruption work also has remained certain limitations There are a number of criminal law provisions that are not very suitable, not yet synchronous and not yet feasible, leading to the trial of a number of cases against involved criminals is not really guaranteed to persuade and be rectified by a higher court The study of theoretical issues about corruption crimes; assessing the institutionalization, the Party's viewpoints, policies and the State's criminal policies as well as criminal law provisions on corruption crimes, practical application of legal provisions of criminal laws on corruption crimes in Da Nang, the factors affecting the application of criminal law provisions, specifically on the trial of corruption crimes above in this area, from then proposing solutions, especially legal solutions to ensure proper application of criminal law provisions on corruption crimes in Da Nang city, is very urgent and has a great significance in terms of theory and practice Therefore, the author selected the thesis topic "Crime of corruption under Vietnam's criminal law from the reality of Da Nang city" to make a doctoral thesis in specialized law Criminal law and criminal procedure with the desire to contribute to the prevention and fighting with corruption crimes in our country today Objectives and tasks of the research 2.1 Objectives of the research On the basis of clarifying theoretical issues about corruption crimes; the reality of Vietnam's criminal law provisions on corruption crimes; practical application of Vietnam's criminal law provisions on corruption crimes in Da Nang city from 2007 to 2017; advantages, limitations and shortcomings in the provisions of criminal law as well as in the practice of judging corruption crimes in Da Nang city and their causes, the thesis proposes solutions completing the provisions of Vietnam's criminal law and other solutions to ensure proper application of our country's criminal law on corruption crimes in new circumstances 2.2 Tasks of the research - Analyzing concepts and legal signs of corruption crimes; differentiate corruption crimes from some other crimes - Analyzing and evaluating the current Vietnam's criminal legislation on corruption crimes before the issuing of the 2015 Criminal Code, which was amended and supplemented in 2017 - Analyzing the content of current Vietnamese Criminal Code provisions on corruption crimes - Analyzing and assessing the practice of determining crime and deciding penalties for corruption crimes in Da Nang city - Proposing to improve criminal law and other solutions to ensure proper application of Vietnamese criminal law on corruption crimes in the new situation Object and scope of the research 3.1 Object of the research The thesis takes scientific views; guidelines of the Party, policies of the State; Vietnam's criminal law provisions on corruption crimes; international conventions and treaties on corruption and corruption prevention; practice to determine the crime and decide the penalties of the Court for corruption crimes in Da Nang city to analyze the issues of the research 3.2 Scope of the research - The thesis studies its topic in terms of criminal law and criminal procedures - In the theoretical and historical legislative aspects, the thesis only discusses the concept and legal signs of corruption crimes; differentiate corruption crimes from some other crimes; generalize the process of issuing and completing Vietnam's criminal law provisions on corruption crimes before the issue of the 2015 Criminal Code, which was amended and supplemented in 2017 - In the practical aspect, the thesis mainly focuses on analyzing the provisions of the Vietnam Criminal Code 2015, (amended and supplemented in 2017) on corruption crimes; the application of Vietnam's criminal law provisions on corruption crimes in determining criminal cases and deciding penalties of courts in Da Nang city against crimes of corruption - In terms of space (geographical area), the thesis is limited to the research in Da Nang city - In terms of research time, the dissertation did the research within 10 years, from 2007 to 2017 Methodology and research methods 4.1 Methodology of the research The thesis is based on the methodology of dialectical materialism and historical materialism of Marxism-Leninism; Ho Chi Minh Thought; Vietnamese Communist Party's views, policies and the State's criminal law policies on crimes, penalties, judicial reforms and anti-corruption The thesis is also made based on multidisciplinary and interdisciplinary approaches to law, especially the approaches of criminal law, social studies of criminal law, criminal studies 4.2 Methods of the research In order to achieve the purpose of research, the thesis also uses a specific research method as follows: - Specific historical methods, analysis, induction, systematization, and comparisons are used primarily to study cases in chapter - Methods of analysis, synthesis, statistics, comparisons and sociological surveys are applied to study the issues in Chapter 3, thereby drawing advantages, limitations and causes as a premise for proposing solutions in chapter of the thesis - Analysis methods and systems are mainly used in Chapter The new contributions of the thesis 5.1 Meaning of the thesis - Theoretical significance: The research results of the thesis contribute to enriching the theory of anti-corruption in general, corruption crimes in particular; at the same time, contributing to the dissemination of the popularity and specificity of corruption acts, the handling of corruption acts - Practical significance: The research results of the thesis contribute to equipping practical knowledge for relevant agencies, especially agencies conducting legal proceedings to improve the effectiveness and efficiency of the trials of corruption crimes in our country in general and in Da Nang city in particular With the above research results of theory and practice, the thesis can be used as a reference for teaching and learning at law training institutions in our country today 5.2 New contributions of the thesis First, the thesis clarifies the relationship between our country's criminal law provisions on corruption crimes with criminal policies in general and criminal law policies in particular about these crimes, through which the thesis made it clear on the social decision of criminal law provisions on corruption crimes Secondly, the thesis clarifies the connotation concept and legal signs of corruption crimes, similarities and differences between corruption crimes and some other crimes, inheritance and development of legal regulations on corruption crimes in our country Thirdly, the dissertation clarifies the current issue of Vietnam's criminal law provisions on corruption crimes and practices in determining crimes and deciding penalties in courts in Danang city Fourthly, the thesis proposes solutions to ensure proper application of criminal law to corruption crimes in our country today Structure of the thesis In addition to the introduction, conclusion, list of references, the thesis consists of chapters: Chapter 1: Overview of the research Chapter 2: Theoretical and historical legislative issues of Vietnam on corruption crimes before issuing the 2015 Criminal Code, which was amended and supplemented in 2018 Chapter 3: Current Vietnamese criminal law on corruption crimes and practices applied in Da Nang city Chapter 4: Solutions to ensure proper application of Vietnam's criminal law on corruption crimes CHAPTER OVERVIEW OF THE RESEARCH 1.1 Overview of the researches in the world - The article "Corruption, integrity and law enforcement" by Fijnaut was published in the publication of C.J.C.F.Fijnaut, & L Huberts (Eds.), Page -37), 2001 - The article "Public Corruption" gathered by Brian Whittaker and Jordan Hicks in 45 Am Crim L Rev 825 2008 and posted by Ashley Kircher in American Law Review and the HeinOnline database page in 2008 - The book "Corruption and misuse of public office" (Corruption and violation of public authorities) by authors Colin Nicholls QC, Timothy Daniel, Alan Bacarese, and John Hatchard published by Oxford University Press in 2011 - Lenny Roth's book "Corruption offences", presented on the electronic version of New South Wales Parliamentary Research ServiceAustralia, 11 /2013 - The book "Corruption: economic analysis and international law" by Borlini & Leonardo S published by Edward Elgar Publishing Ltd in 2014 - The book "Canada's Corruption of Foreign Public Official Act and Secret Commissions Offense", cited: 29 Am.U.Int'l L Rev 2013-2014 369 by Stuart H Deming - The book "Corruption and conflicts of interest: a comparative law approach" by the group of authors, Jean-BernardAuby, Emmanuel Breen and Thomas Perroud, 2014 - The book “Liability of Legal Persons for Corruption in Eastern Europe and Central Asia” compiled by the Anti-corruption Group for Eastern Europe and Central Asia under the Organization for Economic Cooperation and Development (OEDC) 2015 1.2 Overview of researches in Vietnam 1.2.1 Group of research works on the theory of corruption crimes Some of the basic research project can be listed as follows: - State-level independent scientific topic "Scientific arguments for developing strategies to prevent and improve the effectiveness of anticorruption fighting and prevention in Vietnam until 2020" by Mai Quoc Binh, The Deputy General Inspector and the authors of the Government Inspectorate, which was a successful topic in 2009 - Ministry-level scientific research "Some solutions to improve the effectiveness of anti-corruption work of state inspection agencies under the Law on Anti-Corruption" by PhD Tran Ngoc Liem, the Government Inspector and was successfully protected in 2010 - Ministry-level scientific project "Measures to ensure citizens' right to information for anti-corruption work" by MA Dinh Van Minh, Deputy Director of the Institute of Inspectorate, was successfully protected in 2012 - University-level scientific topic "Corruption crimes related to possessing property and fighting against and preventing these crimes in Vietnam in the trend of international integration" by Hanoi Law University , was successfully protected in 2008 - The book "Identifying corruption and anti-corruption solutions in Vietnam today" by author Phan Xuan Son, Pham The Luc (Co-editor) was published by the National Political Publishing House in 2012 - The book "General Theory on the determination of Crime" by Prof Dr Vo Khanh Vinh, was published by Social Science Publishing House in 2013 - The doctoral dissertation thesis on "Anti-corruption in the private sector in Vietnam today" was protected by Pham Thi Hue in 2016 at the Academy of Social Sciences, Vietnam Academy of Social Sciences In addition, there are various works published in magazines that mention some theoretical issues related to corruption crimes such as: "The issue of abusing positions and powers to commit crimes” by Assoc Prof Tran Van Do published in the State and Law Magazine in 1993; "Concept of people with positions and powers" by Prof Dr Vo Khanh Vinh published in the State Journal and Law of 1996; "A number of issues about embezzling socialist property" by Assoc Prof Tran Van Do published in the People's Court Journal in 1997; "The causes and conditions of corruption in our country today" by Prof.Dr Ho Trong Ngu published in the State Journal and the Law in 2001; "Transparent operation of the State" by Ph.D Le Vuong Long published in the Journal of Legislative Studies No 11 (2005); "Identify corruption in Vietnam today, the causes, solutions for prevention and control" posted on http://noichinh.vn (updated on January 3, 2014) 1.2.2 Group of research works on solutions to properly apply criminal law provisions on corruption crimes and improve the effectiveness of actions against corruption crimes This group can be listed as follows: "It is necessary to stipulate the legal liability of legal entities" by authors Nguyen Anh Tuan, Nguyen Van Chinh which was published in the Journal of Legislative Studies No 195 (5/2011); "Scientific commentary of the Criminal Code 1999 (in the crime part’)" by Associate Prof Dr Phung The Vac, which was published in 2001; "Comments on the Criminal Code 1999" by the Institute of Legal Sciences - Ministry of Justice, the 2001 edition, the Vietnamese Criminal Law Curriculum of Hue University, which was published in 2008, "Criminal Law Review of Vietnam" by Dinh Van Que, published in 2002, "New points of criminal offenses case of the Criminal Code 2015” by the author Dao Le Thu posted on https://tapchitoaan.vn (updated on July 25, 2018), "New contents of the Criminal Code 2015 on the position crimes" by Le Thi Hoa, which was posted on http://tcdcpl.moj.gov.vn (updated on July 25, 2018) 1.3 Assessing the research and the issues that need to be studied in the thesis First, overseas research works aim at studying the rationale of corruption in the fields of politics, public management, law, economics and social life and drawing conclusions about participation It comes from nonrighteousness in law enforcement Some studies have approached the study of corruption with the approach of comparative law, thereby showing that countries with different legal systems have different approaches to corruption in general and corruption crimes in particular The results of this study suggest that researchers need to approach in a comprehensive range of different research approaches to build a concept of corruption crimes in a multidimensional, multifaceted way of corruption crimes In addition, the results of a review of overseas research helped the author initially identify the reality of international law on corruption and the approach to studying corruption crimes This helps the author compare the reality of foreign law with the reality of Vietnamese law on corruption, corruption crimes, explain some issues, especially solutions to improve Vietnamese criminal law, especially corruption crimes Secondly, research works in our country mainly focus on studying the concept of corruption; causes of corruption and anti-corruption solutions; mechanisms to control, detect and handle corruption; theoretical basis of the legal system on anti-corruption; the relationship between operational transparency in state agencies, organizations, and corruption; the reality of the law on corruption prevention and control in Vietnam Accordingly, the research projects in our country focused on analyzing the situation of corruption crimes and the situation of handling (criminal) for those crimes This provides the guidelines and solutions to efficiency of anti-crime corruption in our country Thirdly, although the published scientific studies, which have been consulted and reviewed, had certain contributions to the unified understanding of some theoretical issues, construction and completion to improve the law, apply criminal laws to corruption crimes, they no longer worked comprehensively, reasonably and practically for the fight against corruption in general and corruption crimes in particular in the new requirements of anti-corruption work Fourthly, the issue of corruption and crimes of corruption are topical, having important significance in terms of ideology, reasoning and practice for anti-corruption However, corruption crimes are only interested in research in the narrow scope of specific sciences but have not become multi-disciplinary and multi-disciplinary research subjects of social sciences, including legal science, therefore, research results are not comprehensive Obviously, there should be a research project at the doctoral dissertation level on corruption crimes under Vietnam's criminal law from the perspective of trial practice in a locality such as Da Nang city The research must be conducted in a comprehensive, in-depth study of corruption crimes from the perspective of criminal law and criminal proceedings with different research approaches, especially the approach to policy research, social approach to criminal law study, comparative law approach Also from the review and overview of the above research, the author will continue to study the following issues: Firstly, the study clarifies the content of the concept and legal signs of corruption crimes Secondly, distinguish corruption crimes from some other crimes, thereby clarifying their similarities and differences Thirdly, generalize Vietnam's criminal legislative history on corruption crimes before issuing the 2015 Criminal Code, amendments and supplements in 2017 Fourthly, analyze and assess the current application of criminal laws in our country in determining crimes and deciding the penalties of the Court in Da Nang city for crimes of corruption Fifthly, propose solutions to ensure proper application of criminal law to corruption crimes In summary, the thesis will analyze in depth the following contents: (i) Definition of corruption and corruption crimes; legal signs of corruption crimes; basis for determining penalties for corruption crimes; the process of formulating and completing Vietnam's criminal law on corruption crimes; the trend of fighting against and preventing corruption crimes in the criminal justice system in the world and in Vietnam (ii) Research and evaluate the current situation of criminal law application in adjudication of corruption crimes in Vietnam in general and in Da Nang city in particular (iii) Analyze the requirements of fighting against corruption in Vietnam in the current period, the orientation in 2030 and solutions to complete Vietnam's criminal legal system to ensure the effective application of criminal law to corruption crimes in Vietnam in the new situation CHAPTER THEORETICAL ISSUES AND HISTORY OF VIETNAMESE CRIMINAL LEGISLATION ON CRIMES ON CORRUPTION BEFORE THE ISSUANCE OF THE CRIMINAL CODE 2015 2.1 Concepts and legal signs of corruption crimes 2.1.1 Concepts and definition of criminal crimes on corruption Crimes of corruption are dangerous for the society which have been prescribed in the Criminal Code, because the persons with their positions and powers have abused those positions and powers while performing their official duties or cases of infringing upon the proper operation of state agencies and social organizations; infringing upon the reputation of agencies and organizations; infringing upon property and interests of the State and organizations; infringing upon the rights and legitimate interests of individuals and citizens for the sake of self-interest shown the attitude of condemning and resolutely struggling with the crimes, violations of corruption, however, on the legislative aspect, corruption crimes have not been specified, especially the signs of constituting crimes 2.2.2 The period from the issuance of the Criminal Code in 1985 to the issuance of the Criminal Code in 1999 The legislative milestone showing the consistent criminal policy of our State on corruption crimes in the period from 1985 to the issuance of the 1999 Criminal Code was the Criminal Code in 1985 issued by the National Assembly on 27th June 1985 (amended and supplemented four times in 1989, 1991, 1992 and 1997), whereby lawmakers set aside a separate chapter that regulated corruption crimes and penalties for them that were suitable to the current situation The practical application of the provisions of the 1985 Criminal Code showed that although it has been completed through the revisions, there have been still certain shortcomings that required some additional crimes to meet the requirements of the prevention and fighting against crimes in the new period, including corruption crimes With that urgent request, on December 21, 1999, the National Assembly approved the Criminal Code, which was effective from July 1, 2000 (referred to as the Criminal Code in 1999), replacing the Criminal Code in 1985 2.2.3 The period from the issuance of the Criminal Code of 1999 to the issuance of the Criminal Code 2015, (amended and supplemented in 2017) Compared to the Criminal Code in 1985, the Criminal Code in 1999 stipulated corruption crimes into a separate section New points of the Criminal Law 1999 compared to the 1985 Criminal Law were clearly delineating corruption crimes with criminals about other positions However, since it was issued in 1999, the Criminal Code 1999 has not fully institutionalized the new views and guidelines of the Party and the criminal policy of our State, therefore, on November 27, 2015, The National Assembly of Vienam approved the Criminal Code 2015, amended and supplemented in 2017 (effective from January 1, 2018), which stipulated corruption crimes in section 1, Chapter XXIII, including 07 crimes: crime of embezzlement of property (Article 353); Crime of taking bribes (Article 354); Crime of abusing positions and powers of appropriating property (Article 355); Crime of abusing positions and powers while performing official duties (Article 356); Crime of abuse of power while on duty (Article 357); Crime of abusing positions and powers to influence other people for personal gains (Article 358); Crime of forgery (Article 359) 11 CHAPTER PROVISIONS OF THE CURRENT VIETNAMESE LAW ON CORRUPTION CRIMES AND APPLICABLE PRACTICE IN DA NANG CITY 3.1 Current Vietnamese law on corruption crimes 3.1.1 Crime of embezzling property (Article 353) - The object of the embezzlement of property: Crime of embezzlement of property violates the proper operation of state agencies, social organizations, property rights - Objective aspect of embezzlement of property: Crime of embezzlement of property has mandatory signs: taking advantage of positions and powers of appropriating property; appropriated property is the property of the criminal assigned to manage; appropriated assets valued at between VND 2,000,000 and under VND 100,000,000 or less than VND million, and has been disciplined for such acts but still violate or has commited crimes regulated in Index 1, Chapter XXIII, and not been deleted the criminal record but also violated - Subject of crime of embezzlement of property: Crime of embezzlement is the person with the position and authority responsible for managing the property That person may be a person holding positions and powers in agencies, state or non-state enterprises - Subjective side of embezzlement of property: Crime of embezzlement is done purposely, directly for the purpose of committing crimes for a benefit In Article 353 of the Criminal Code 2015, amendments and supplements in 2017, lawmakers set penalties for the embezzlement In addition, according to Clauses and 6, the criminals are also prohibited from holding certain positions for one to five years, may be subject to a fine of between VND 30,000,000 and VND 100,000,000, whole or partial confiscation of property Persons holding positions and powers in non-state enterprises and organizations that embezzle properties shall be handled according to the provisions of this Article 3.1.2 Crime of taking bribes (Article 354) - Object of taking bribes: Crime of taking bribes violates the proper operation of state agencies or social organizations or non-state and prestigious enterprises and organizations of agencies or organizations - The objective side of the crime of accepting bribes: 12 Crime of taking bribes has the following signs: taking advantage of positions and powers directly or not directly that have or will receive non-material benefits or money, property or other benefits of any form that cost from 2,000,000 VND to less than 100,000,000 VND or less than 2,000,000 VND, and has been disciplined for this act but also violates or has committed crime that is stipulated in Item 1, Chapter XXIII Criminal Code 2015, amended and supplemented in 2017, has not yet been deleted the criminal record but also violated to or not to complete a task for the benefit or at the request of the bribe - Subject of the crime of accepting bribes: The subject of the crime of accepting bribes is the person holding the position and authority That person may be a person holding positions and powers in agencies, state or non-state enterprises - Subjective side of taking bribes: Crime of accepting bribes is done by intentional and self-seeking purposes In Article 354 of the Criminal Code 2015, amended and supplemented in 2017, there are penalties for bribery - In addition, according to paragraphs and of Article 354, offenders are also banned from holding certain posts for one to five years, and may be subject to a fine of between VND 30,000,000 and VND 100,000,000 collect part or all of the property Persons with positions and powers in enterprises and organizations outside the State that accept bribes shall be handled according to the provisions of this Article 3.1.3 Crime of abusing positions and powers for appropriating property (Article 355) - The object of the abuse of positions and powers of appropriating property: Crime of abusing positions and powers to appropriate property infringing upon the proper activities of state agencies, social organizations, property rights of others - Objective aspect of abuse of positions and powers to appropriate property: This crime has the following mandatory characteristics: abuse of positions and powers of appropriation of property On the objective side of this crime, it should be noted that the use of positions and powers may be to carry out acts beyond the scope of the tasks assigned in such forms as deception or trust abuse - Subjects of abuse of positions and powers of appropriating property: 13 Subjects of position and power abuse of appropriation of property are persons holding positions and powers - Subjective side of abuse of positions and powers of appropriating property: This crime is made by intentions The motivation to commit a crime is rooted from a benefit In Article 355, lawmakers set four penalties for abuse of property appropriation and authority In addition, according to Clause of Article 355, criminals are also prohibited from holding certain positions for one to five years, may be subject to a fine of between VND 30,000,000 and VND 100,000,000, confiscation of a part or all set of properties 3.1.4 Crime of abusing positions and powers while performing official duties (Article 356) - The object of the crime of abusing positions and powers while performing official duties: Crime of abusing positions and powers while performing public duties infringes upon the proper activities of state agencies, organizations, legitimate rights and interests of individuals - Objective side of the crime of abusing positions and powers while performing official duties: The objective side of this crime has mandatory signs: abusing positions and powers against the public service; causing damage to the interests of state agencies, organizations, legitimate rights and interests of individuals; and the causal relationship between taking advantage of positions, powers and damages caused by such behavior - Subject of the crime of abusing positions and powers while performing official duties: Subjects of abuse of positions and powers while on duty are persons holding positions and powers - Subjective side of the crime of abusing positions and powers while performing official duties: In Article 356, the lawmaker stipulates penalties for abusing positions and powers while performing official duties In addition, according to Clause of Article 356, criminals are also banned from holding one position from one year to five years, and may be subject to a fine of between VND 10,000,000 and VND 100,000,000 3.1.5 Crime of abuse of power while on duty (Article 357) - Object of abuse of power while on duty: 14 Crime of abuse of power while on duty violates the proper operation of the state, the rights and legitimate interests of organizations and individuals - Objective aspect of abuse of power while on duty: The objective side of crime has three mandatory signs: acts that exceed the assigned authority in their work; causing damage to the interests of the State, legitimate rights and interests of organizations and individuals; causal relationship between behavior beyond the power and damage caused by that behavior - Subject of abuse of power while on duty: The subject of abuse of power while on duty is a person holding a position or authority - Subjective face of abuse of power while on duty: This crime is caused intentionally At Article 357 of the Penal Code 2015, amendments and supplements in 2017, lawmakers set out penalty ranges for abuse of power while on duty In addition, according to Clause of Article 357, criminals are also banned from holding certain positions for one to five years, and may be subject to a fine of between VND 10,000,000 and VND 100,000,000 3.1.6 Crime of abusing positions and powers to influence other people for personal gains (Article 358) This crime infringes on the normal operation of the state or organization, the normal reputation of that agency or organization - The objective side of the crime of abusing positions and powers to influence others for personal profit purposes Crime of abusing positions and powers to influence other people for personal gain has the following signs: abusing positions, powers directly or not directly to ask for, receive or receive money, property or material benefits or others in any form with a value of from 2,000,000 VND to less than 100,000,000 VND or less than 2,000,000 VND, have been disciplined for this behavior but still violate; use their influence to ask people holding positions, powers to or not to a relevant task or to the task that they are not allowed to - Subjects of the crime of abusing positions and powers to influence other people for personal gain: The subjects of this crime are persons holding positions and powers - Subjective side of abuse of positions and powers to influence other people for personal gain: This crime is committed intentionally 15 In Article 358 of the Criminal Code 2015, lawmakers set forth penalty ranges In addition, according to Clause Article 358, criminals are also prohibited from holding certain positions for one to five years, and may be subject to a fine of between VND 30,000,000 and VND 100,000,000 3.1.7 Crime of forgery (Article 359) - The object of forged crime at work: Forged crime in work violates normal activities of state agencies or organizations - Objective aspect of forged crime at work: Objective aspects of crime are reflected in the position and authority of people holding positions and powers to abuse their positions and powers to perform one of the following acts: correcting and falsifying the contents of papers and documents; making and issuing fake papers; forging signatures of persons holding positions and powers - The subject of forgery at work: The subject of this crime is the person who has the position and authority and in certain cases the subject must be responsible for making or granting papers and documents - Subjective side of forgery crime at work: The subjective side of this crime is done intentionally In Article 359 of the Criminal Code 2015, amended and supplemented in 2017, lawmakers set out penalty ranges for forgery crime at work In addition, according to Clause 5, Article 359, the criminals are also banned from holding certain positions or doing certain jobs for one to five years, and may be subject to a fine of between VND 10,000,000 and VND 100,000,000 Based on the analysis of the above specific crimes, it can be seen that basically, crimes of corruption in the Criminal Code 2015, (amendments and supplements in 2017) were similar to corruption crimes in the Criminal Code in 1999 on the number of crimes, criminal names and basic components of crime However, compared to the 1999 Criminal Code, the Criminal Code 2015 (amendments and supplements in 2017) have been amended and supplemented for this type of crime, notably: Firstly, adding the concept of criminals to positions, according to which acts of infringement work properly by agencies and organizations performed by people holding positions not only during the performance of public duties but also the current task (Article 352) This means that the scope of acts of dangerous behavior for society is considered a crime not only 16 for those who are officials, civil servants and public servants but also acts of those working in businesses and companies outside the state sector Subjects of implementing corruption crimes extended to non-state areas are applied to four crime types: "Crime of embezzlement of property", "Crime of taking bribes", "Crime of brokering bribes" and "Crime of giving bribes ", including two crimes of corruption: “Crime of embezzling property” (Clause 6, Article 353) and "Crime of taking bribes" (Clause 6, Article 354) Secondly, more complete regulations on some factors that constitute criminals For example, the act of bribery is defined as "The person who directly or not directly has given or will give the person holding the position, power or other person or organization any of the following benefits so that the people holding such positions and powers to or not to a request for the benefit or at the request of the bribe "(Clause 1, Article 354) Thirdly, "non-material benefits" was considered to be the factor that constitute a number of corruption crimes in the supplemented provision Fourthly, supplementing constitutes in determining severe penalty ranges for a number of crimes, specifying details of crimes and determining penalty frames Fifthly, the Criminal Code 2015, amended and supplemented in 2017, stipulated to increase the amount of money and property value and quantify the value of damage caused in very serious or particularly serious consequences into specific amounts Sixthly, a number of new policies have been added to handle corruption crimes such as supplementation of non-material interests; additional cases of not applying the limitation for criminal prosecution in Article 28 of the Criminal Code In addition, in case of not applying the statute of limitations for the retention of penal liabilities Accordingly, to limit the application of the death penalty in practice, the Article 40 of the Criminal Code 2015, (amended and supplemented in 2017) stipulated that "people who are sentenced to death on embezzlement of property, and taking bribes and after being sentenced, actively return at least three-fourths of the embezzlement property, bribes and voluntarily cooperate with authorities in detecting, investigating, handling crimes or doing a big work" will not be sentenced to death and changed to penalty for life imprisonment From the above analysis, it can be seen that it is the social life that decides to regulate corruption crimes in certain stages in the development of the Vietnamese revolution The impact of social life, the Party's policy and guidelines, and the State's criminal policy on the regulation of corruption 17 crimes is shown not only in term of the content but also regarding the legal techniques 3.2 Practical application of criminal law provisions on corruption crimes in Da Nang city According to the report of Da Nang People's Court, within 10 years (from 2007 to December 30, 2017), the People's Courts in Da Nang city tried 13 cases with 26 defendants on corruption crimes according to the provisions of the 1999 Criminal Code, amended and supplemented in 2009, of which, there were 08 cases with 10 defendants being tried and sentenced of embezzlement of property under the Article 278 of the Criminal Code; 02 cases with 08 defendants were tried and sentenced for accepting bribes according to the Article 279 of the Criminal Code; 01 case with 03 defendants were tried and sentenced on the abuse of positions and powers to appropriate property under the Article 280 of the Criminal Code and one case with 03 defendants who were tried and convicted of abuse of positions and powers while performing official duties under the Article 281 of the Criminal Code; 01 case with 04 defendants were tried and convicted of falsifying work under the Article 284 of the Criminal Code (shown in Table 3.1) Table 3.1: Trials of corruption crimes in Da Nang city Year 2007 2009 2013 2014 2015 Case number (13) 10 11 Defendants (22) Crimes Penalty ranges Nguyen Dinh Chien Tong Viet Toai Le Dac Minh Le Tan Minh Tri Ha Ngoc Thach Ho Van Men Tran Phuoc Hung Nguyen Dinh Than a, k3, Đ 278 a, k3, Đ 278 K1, Đ 278 K1, Đ 278 a, k4, Đ 278 K2, Đ 280 K2, Đ 278 c, k2, Đ 278 Bui Manh Hung Bui Hung Minh Bui Thi Hoa Tran Ninh Thai Van Hao Dang Bao Long Nguyen Phuoc Thanh a, k4, Đ 278 a, k4, Đ 278 a, k4, Đ 278 K1, Đ 279 K1, Đ 281 K1, Đ 281 K1, Đ 281 07 years in prison 12 years in prison 02 years in prison 18 months in prison 19 years in prison 15 years in prison 45 months in prison 01 year and months in prison 17 years in prison 15 years in prison Life imprisonment 12 months in prison 06 months in prison 04 months in prison 04 months in prison 18 Pham Phu Cuong Đ 279 04 years in prison Ho Tan Hai Đ 279 02 years in prison 2016 Thuy Ngoc Trong Đ 279 18 months in prison Nguyen Van An Đ 279 18 months in prison 12 Ly Thanh Tung Đ 279 12 months in prison Nguyen Van Nhung Đ 279 06 months in prison Dinh Ngoc Ban Đ 279 09 months in prison 2017 13 Nguyen Duc Thang c, K2, Đ 284 21 months in prison La Van Huynh c, K2, Đ 284 15 months in prison Tran Van Kien c, K2, Đ 284 12 months in prison Hoang Thi Kim Dung c, K2, Đ 284 09 months in prison (Resources: People's Court of Da Nang city) 3.2.1 Practicing criminal charges against corruption crimes In some cases, there have been different opinions, aggreeing and not aggreeing with the determination of the crimes by the courts Thereby, it is not clear that the identification of objective signs of corruption crimes is not clear, which easily confuses the criminals of corruption as well as other crimes 3.2.2 The reality of deciding penalties for corruption crimes Firstly, on the basis of the statistics of the cases brought to trial, it can be seen that the criminals of corruption of property (Article 278) and taking bribes (Article 279) of the 1999 Criminal Code in the city accounted for the highest proportion (18/26 defendants, accounting for more than 70%) This rate is equivalent to the proportion of defendants being tried with these two crimes nationwide at 77% Also, according to the statistics of corruption cases in Da Nang city, the corruption crimes are increasingly dangerous, causing more damage, so the proportion of defendants is in serious cases Very serious and particularly serious and increasing proportion of defendants entitled to suspended sentence, non-custodial sentence is declining However, the application of additional penalties for corruption crimes has not been paid attention, the proportion of respondents subject to additional penalties is low (about 7%), of which mainly not allowed to hold a position or a certain job without considering the penalty in money as an additional penalty Secondly, corruption acts and corruption crimes occur in a wide range of levels, sectors and areas of social life; The acts of corruption are increasingly complicated and serious with increasingly sophisticated tricks 19 Thirdly, the level of corruption is growing, the consequences of corruption crimes are becoming more serious CHAPTER SOLUTIONS TO ENSURE THE PROPER APPLICATION OF VIETNAMESE CRIMINAL LAW ON CORRUPTION CRIMES 4.1 Requirements to apply criminal law regulations on corruption crimes 4.1.1 The application of criminal law regualtions on corruption crimes must be followed up with objectives, viewpoints of our Party on judicial reform and anti-corruption On the principle of Criminal procedure law, no one is considered to be guilty when no conviction of the Court has come into effect However, the fight against crimes can not be seperated from political, economic and cultural-social tasks Therefore, it is important to follow up the viewpoints of our Party on judicial reform and anti-corruption in order to ensure transparency, publicity and judgements on the right people, right cases of corruption crimes 4.1.2 The implementation of criminal policies on corruption crimes is to be ensured properly on the practice of law-based judgements - The application of criminal law on corruption crimes is always influenced by the quality of criminal law regulations - The application of the law on dealing with corruption cases of the Court is also directly affected by the quality of Criminal procedure law Moreover, the scientification and consistence of legal regulations related to corruption crimes also affect the quality of judgements 4.1.3 The application of criminal law on corruption crimes must be associated with improving the quality of judges The courts at all levels should regularly review, supplement and complete the rules on management of judges and civil servants; clearly define the functions, duties, responsibilities and authorities of each judge and enhance the publicity, transparency, and responsibilities of judges in judicial activities 4.1.4 The independence of judges and jurors of people is to be ensured on adjudicating corruption cases The Constitution, Criminal Procedure Law and Law on Organization of the People's Courts always stipulate the principle "Judges and Assessors are independent and only in accordance with the law" Therefore, in judicial activities, Judges and Assessors are not subject to any impacts, regardless of the will of any individuals or organizations 20 4.1.5 The mechanism of inspection and supervision on corruption cases is to be assured The inspection and supervision is reflected in the Party's leadership on cadre work, political education and ideology in order to improve the political stuff, code of ethics, the responsibilites of the Judges and jurors of people in implementing judging duties; the judgments of corruption cases is also under the supervision of the National Assembly, People's Councils, Vietnamese Fatherland Front at all levels and the supervision of the People's Procuracy of the same level 4.1.6 Applying criminal law to corruption crimes must pay attention to the characteristics of corruption cases - Subjects of corruption crimes are those with positions and powers; - In corruption crimes, persons in charge of abusing positions and powers are assigned to carry out acts contrary to their duties and tasks; - Corruption crimes violate the proper activities of state agencies; infringing upon the State's property and interests, infringing upon legitimate rights and interests of organizations and individuals - Corruption criminals have a beneficial purpose In Da Nang city only, the study of corruption cases over the past time has shown that of all the corruption crimes, the criminals of embezzlement of property (Article 278) and crimes of accepting bribes (Article 279) of the Criminal Code in 1999, amendments and supplements in 2009 accounted for the highest proportion This requires proceedingconducting agencies in general, the Court in particular to pay more attention to properly assess the characteristics of corruption crimes in order to properly apply legal provisions to investigate criminal liability for corruption crimes in each specific case 4.1.7 Applying criminal law to corruption crimes must meet the requirements of international integration Ensuring a favorable, transparent and safe legal environment is an especially important condition for the implementation of international integration One of the important requirements is to build a complete and secure legal system that is compatible with international standards, in line with the bilateral and multilateral international treaties that Vietnam is a member of (notably Viet Nam's commitments when joining the United Nations Convention on Anti-Corruption and international experiences on anti-corruption 4.2 Solutions to ensure proper application of criminal law on corruption crimes Some basic solutions need to be focused on: 21 4.2.1 Complete legal regulations 4.2.1.1 Complete criminal law provisions Firstly, amend and supplement some crimes about corruption Secondly, completing a number of regulations on crimes regarding corruption crimes Thirdly, build up a separate chapter on corruption crimes in the Criminal Code 4.2.1.2 Complete relevant legal provisions The effective application of criminal law to corruption crimes depends not only on the completion of criminal law, but also on the completion of relevant legal provisions Which focuses on the following issues: - It is necessary to have stricter regulations on property control and asset recovery - Completing regulations on protection of denouncers and informants about corruption cases - Clearly regulate the forms of handling and authority to handle corruption acts and other law-breaking acts which not have enough elements to constitute crimes - More specific provisions on the mode of participation of social organizations, with more emphasis on the role of social supervision in the trial of corruption cases - Studying and amending the regulations on changing positions to suit the actual situation, especially the positions that are easy to be taken advantage of for constituting corruption - Promote decentralization and self-responsibility for localities and units In addition, to ensure effective handling of corruption crimes, there must be a mechanism to ensure the integrity of judges and mechanisms to prevent judges from violating the law 4.2.2 Some other solutions - The Court of all levels regularly reviews and evaluates the quality of trial cases of corruption cases - Courts at all levels should coordinate closely with agencies conducting legal proceedings in adjudicating corruption cases In addition, the Court should implement a mechanism of close coordination with relevant agencies such as: Internal Affairs Committee at all levels, inspection agencies, auditing agencies, investigating agencies, inspection agencies, etc… - Need to further strengthen the inspection and supervision of party 22 committees, both political systems and the whole society; bring the anticorruption work into the annual inspection and supervision program - In addition, the relevant authorities need to respect and promote the role of journalism and public opinions in anti-corruption work CONCLUSION AND SOLUTIONS Research, conceptual interpretations, characteristics of corrupttion behavior, corruption crimes as well as anti-corruption mechanisms are important issues for research to effectively prevent and fight against corruption Studying the laws of the countries in the world and the current criminal law in Vietnam leads to the definition of the concept "Crime of corruption is a dangerous behavior for the society prescribed in the Criminal Code by people holding positions and powers while performing official duties, tasks of affecting seriously the reputation of agencies and organizations; property, interests of the State, citizens' legitimate rights and interests for benefit purposes ” Based on the general overview of Vietnam's criminal law history from 1945 to present, the regulations on corruption crimes are increasingly improved In order to properly apply criminal law provisions, the most important issue is to apply the provisions of crime determination and punishment or penalties From the practical application of criminal law in the trial of corruption crimes in Da Nang city, it can be seen that there has been shortcomings in determining crime and deciding penalties in some cases which were not really guaranteed and not consistent In order to improve the effectiveness of anti-corruption in the upcoming time, it is necessary to continue to amend and supplement criminal law provisions and relevant legal provisions to ensure consistency and synchronization of the anti-corruption To promote the achieved results, overcome the shortcomings, limit and ensure the effective application of criminal law to corruption crimes in the upcoming time, relevant agencies, especially the People's Court needs to strictly follow the Party's goals and views and policies on judicial reform and anti-corruption; The application of criminal law to corruption crimes must be based on law; associated with improving the quality of the judges; ensure the independence of judges and people's jurors in the trial of corruption cases; ensure mechanisms for inspection and supervision of trial cases of corruption cases; pay attention to the characteristics of corruption 23 cases, meeting international integration requirements Some solutions to ensure the application of criminal law provisions on corruption crimes in the coming time are: continue to improve criminal law provisions and legal documents on anti-corruption to ensure consistency and agreement between the Anti-Corruption Law and the Criminal Code, regulating corruption acts and corruption crimes; specifying the application of measures to prevent the dispersal of corrupt assets; study appropriate models to build up relative independence of inspection agencies; supplement regulations on prosecution and initial investigation for inspections and audits that detect signs of corruption Along with solutions to improve the law, to improve the effectiveness of the application of criminal law to corruption crimes, it is necessary to synchronously implement a number of specific solutions such as: the Court of all levels often review and evaluate the quality of trial cases of corruption cases; strengthen coordination among agencies conducting legal proceedings in trial of corruption cases; further strengthening the inspection and supervision of the party committees, both the political system and the whole society to promptly detect and strictly handle corruption acts and corruption crimes 24 LIST OF WORKS DISCLOSURE BY AUTHORS Tran Huy Duc (2016), "Discussing about corruption crimes according to the Criminal Code 2015", Journal of Law No Tran Huy Duc (2017), Learn more about the elements that constitute corruption crimes according to Vietnamese law, Journal of Law on Thematic issues Skills of professional jurors used in trial of criminal cases - Justice Publishing House published in 2017 25 ... complete Vietnam's criminal legal system to ensure the effective application of criminal law to corruption crimes in Vietnam in the new situation CHAPTER THEORETICAL ISSUES AND HISTORY OF VIETNAMESE... Chapter 2: Theoretical and historical legislative issues of Vietnam on corruption crimes before issuing the 2015 Criminal Code, which was amended and supplemented in 2018 Chapter 3: Current Vietnamese... the basis of clarifying theoretical issues about corruption crimes; the reality of Vietnam's criminal law provisions on corruption crimes; practical application of Vietnam's criminal law provisions
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