Resolution 01/2001/hdtp: Guide To Applying Some Of The Provisions Of Article 139, 193, 194, 278, 279 And 289 Of The Penal Code, 1999

Original Language Title: Nghị quyết 01/2001/NQ-HĐTP: Hướng dẫn áp dụng một số quy định của các điều 139, 193, 194, 278, 279 và 289 Bộ luật Hình sự năm 1999

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The RESOLUTION guidelines apply some of the provisions of article 139, 193, 194, 278, 279 and 289 of the Penal Code of 1999 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ the COUNCIL of JUDGES of the SUPREME PEOPLE'S COURT pursuant to article 20 and article 21 courts Organization Act of 1992 (amended and supplemented on 28-12-1993 and on 28-10-1995);
To the correct and uniform application of article 139, 193, 194, 278, 279 and 289 the criminal was the National Assembly of the Socialist Republic of Vietnam passed on 21-12-1999 and came into force on 1 July 2000;
RESOLUTION: a guide to applying some of the provisions of article 139, 193, 194, 278, 279 and 289 the criminal was the National Assembly of the Socialist Republic of Vietnam passed on 21-12-1999 (hereafter abbreviated as the criminal) as follows: 1. When applying article 139, 193, 194, 278 , 279 and 289 PENAL CODE to decide the punishment, on general principles the courts are based on the provisions of the PENAL CODE, considering the nature and degree of danger to society of the offence, the offender, the extenuating and aggravating circumstances for criminal liability.
2. When applying Article 139 paragraph 4 a score of the criminal code on fraud seized property need attention: 2.1. In the absence of aggravating criminal liability (hereinafter referred to as aggravating) and no extenuating circumstances for criminal liability (hereinafter referred to as extenuating circumstances) or just have the aggravation, just had extenuating circumstances, but reviews the nature and aggravating and mitigating properties similar , then the sanction the offender project level corresponds to the value of the property being seized as follows: a. the jail sanctions from 12 years to 20 years if the assets were seized worth from five hundred million to one billion five hundred million.
b. sanctions life imprisonment if the assets were seized valued at one billion five hundred million to under four billion five hundred million;
c. the death penalty if the property were seized worth four billion five hundred million or more.
2.2. In case there are many extenuating circumstances without the aggravation or have little more aggravation, and reviews the nature of mitigation and aggravating deems may mitigate criminal liability for the offender, it may sanction the offender than the lighter sentence level are instructed in subsection 2.1 2 Entries are as follows a. sanctions jail from seven years to under twelve years if the assets were seized worth from five hundred million to one billion five hundred million (this case must have at least two extenuating circumstances the provisions of paragraph 1 to article 46 of the Penal Code);
b. sanctions imprisonment from twelve years to twenty years if the assets were seized there values from one fellow triêụ to under four billion five hundred million;
c. sanctions life imprisonment if the assets were seized worth four billion five hundred million or more.
2.3. In case there are many aggravating that no mitigating or extenuating circumstances are less than, and reviews the nature and aggravating and mitigating properties it deems necessary to the criminal liability for the offender, it may sanction the heavy sentence level offenders than court instructions in subsection 2.1 2 Entries are as follows a. sanctions life imprisonment if the assets were seized worth from five hundred million to one billion five hundred million;
b. the sanctions the death penalty if the property were seized valued at one million or more.
2.4. In the case under the directed at the subsection 2.1 and 2.3 of this category 2 offenders are sentenced to death, but the offender has compensated was a significant portion of the value of the property being seized (or relatives likes meat, intestines ... of the offender has compensated instead of the offender) , then may not sanction the death penalty and offenders depending on the amount of compensation that can sanction the offenders to life imprisonment or a prison term.
The compensation is deemed to have been a significant part of the value of the property being seized if: a. the compensation Has to be at least a two-part value of assets robbed;
b. Has been compensation from a third to under part two robbed property values, if the base is proof that the offender (or relatives likes meat, intestines ... of the offender) has taken every measure to compensate the value of the property being seized (everything in the House , a valuable asset; try to borrow, borrow ... to the maximum level).
3. When applying paragraph 4 to article 193 of the Penal Code for the crime of unauthorized narcotics production and paragraph 4 to article 194 of the Penal Code for the crime storing, transporting, buying and selling unauthorised or seized narcotics need attention;
3.1. In the case of no aggravation and no extenuating or aggravating both, just had extenuating circumstances, but reviews the nature and aggravating and mitigating properties equivalent to each other, then the sanction level offender projects corresponding to a weight of narcotics are as follows a. twenty years imprisonment sanction if:-plastic poppy, cannabis resin or high côca weight from 5 kg to under ten kilograms;
-Hêrôin or côcain with the weight from one hundred grams to under three hundred grams;
-Leaves, flowers, fruit trees of marijuana or coca leaves with the weight from seven fifteen kilograms to under two hundred kilogram (for Article 194 of the Penal Code);
-Results of dry opium weight from six hundred kilograms up to under a thousand five hundred kilograms (for Article 194 of the Penal Code):-results of fresh opium weighing from one hundred and fifty kilogram to under four hundred fifty kilogram (for Article 194 of the Penal Code);
-The other narcotics in solid weighing from three hundred grams to under nine hundred grams;
-The other narcotics in liquid from seven hundred and fifty thousand hectares to under mililít mililít;
-Two narcotics over that of the amount of the substance which is equivalent to the number of one of the drugs in this way point a computer instructions in subsection 3.2 of this section 3.
b. sanctions life imprisonment if:-plastic poppy, cannabis resin or high côca from ten kilogram weight to under twenty kilograms;
-Hêrôin or côcain has a weight of three hundred grams to under six hundred grams;
-Leaves, flowers, fruit trees of marijuana or coca leaves from two hundred kilogram weight to under six hundred kilogram (for Article 194 PENAL CODE);
-Results of dry opium weighing from one thousand five hundred kilogam to under four thousand five hundred kilograms (for Articles 194 PENAL CODE);
-Results of fresh opium weighing from four hundred and fifty kilogram to under a thousand two hundred kilogram (for Article 194 of the Penal Code);
-The other narcotics in solid weigh from nine hundred grams to under two thousand five hundred grams;
-The other narcotics in liquid from two thousand to five thousand mililít under mililít;
-Two narcotics over that of the amount of the substance which is equivalent to the number of one of the drugs in this way b computer instructions in subsection 3.2 of this section 3.
c. death sanction if:-plastic poppy, cannabis resin or high côca weight from twenty kilograms or more;
-Hêrôin or côcain with the weight from six hundred grams;
-Leaves, flowers, fruits or leaves of cannabis côca there weight from six hundred-kilogram and above (with regard to Article 194 of the Penal Code);
-Results of dry opium weighing from four thousand five hundred kilograms or above (with regard to article 194 PENAL CODE);
-Results of fresh opium weighing from one thousand two hundred kilograms or above (with regard to article 194 of the Penal Code);
-The other narcotics in solid weight from two thousand five hundred grams;
-The other narcotics in liquid from five thousand mililít;

-Two narcotics over that of the amount of the substance which is equivalent to the number of one of the drugs in this way c computer instructions in subsection 3.2 of this section 3.
3.2. Episode "two narcotics over that of the amount of the substance which is equivalent to the number of drugs prescribed in one of the spots from ..." in paragraph 4 to article 193 and DD h paragraph 4 to article 194 CRC shall be calculated as follows: a. the first case.
If the drugs that are prescribed in the same paragraph 4 of Article 193 Article 194, paragraph 4 or that of the combined weight of the Narcotics that together and compare to the weight to be a guide in subsection 3.1 section 3 to consider the offender is sentenced to the penalty level.
Example 1: a 9 kilogram opium resin production and 17 kilograms of cannabis resin. Due to opium and cannabis resin plastics are specified in point a paragraph 4 to article 193, should need the plastic weight plus opium and cannabis resin together with 26 kilograms (9 kg + 17 kg = 26 kg). Compare with weight instructions in subsection 3.1 section 3 must apply to this clause 4 to 193 Thing UPO points sanction death penalty level offenders.
Example 2: a buyer to sell 115 grams and 125 grams Hêrôin Côcain. Due to the Hêrôin and Côcain are both specified in point b paragraph 4 to article 194, Hêrôin and weight Côcain community together by 240 grams (115 grams + 125 grams = 240 grams). Compare with weight instructions in subsection 3.1 section 3 applies to point b of this clause 4 Article 194 to sanction the offender project level 20 years in prison.
b. the second case If the drugs that are prescribed in the various points of the clause 2, clause 3, paragraph 4 Article 193 or at different points of the clause 2, clause 3, paragraph 4 to article 194, the calculation of the total quantity of narcotics is equivalent to the number of one of the drugs prescribed in clause 4 or in paragraph 193 Article 194 Article 4 be conducted according to the following sequence: b. 1. Turn taken as standard every narcotics among the Narcotics that the offender has the production, storage, transport, sale or illegal appropriation. Calculate weight (quantity) of narcotics remains among the Narcotics that the offender has the manufacture, storage, transport, sale or illegal appropriation corresponding to how much kilogram (grams) or mililít of narcotics were retrieved according to weight ratio (the number of) a minimum of narcotics remains with the weight (the amount) minimum of narcotics were retrieved do the standard prescribed in paragraph 4 to article 193 or 194 Article 4 paragraph (see example below).
b. 2. Plus the weight (quantity) of the narcotics was to calculate the equivalent weight (quantity of narcotics were taken as standard shall be the total amount of narcotics offenders have produced, storing, transporting, buying and selling unauthorized or misappropriate (the computer equivalent of narcotics were taken as standard) (see examples below). b. 3. Comparison of the results counted the total number of narcotics that the offender has the manufacture, storage, transport, sale or illegal appropriation of equivalence (as the Narcotics were taken as standard) with each other and with instructions in subsection 3.1 section 3. If the total amount of narcotics is equivalent under the Narcotics that are beneficial to the offender when sentencing, taking the total number (see example below).
For example, a 4-kilograms of opium sales, 90 grams of hêrôin and 150 grams of other narcotics in the solid. How to calculate the total amount of narcotics are as follows:-first: taking drugs do to calculate the 90 grams of hêrôin and 150 grams of other narcotics in the solid equivalent of how many kilograms of opium (measured by the ratio of the minimum weight of opium and hêrôin, of opium and other narcotics in solid prescribed in paragraph 4 to article 194); in particular: * for Hêrôin: 100 grams Hêrôin is equivalent to five kilograms of opium.
90 grams Hêrôin is equivalent to X kilograms of opium.
X = 90 grams x 5 kilogram 100 grams = 4.5 kilogram opium * for other narcotics in solid: 300 grams of other narcotics in solidity equivalent to 5 kilograms of opium.
150 grams of other narcotics in solidity equivalent to Y kilograms of opium.
Y = 150 grams x 5 300 kilograms grams = 2.5 kilogram opium Plus the weight of the Hêrôin and other narcotics in the solid medium can calculate the equivalent weight of opium (X and Y) with actual opium weight is 4.5 kilogram + 2.5 kilogram: + 4 = 11 kilogram kilogram.
So, in this case the total quantity of opium, Hêrôin and other narcotics in the solid (the Narcotics that the offender was unauthorized and acquisition) is equal to 11 kilograms of opium (1).
-Second: take Hêrôin do to computer 4 kg opium and 150 grams of other narcotics in the solid is equivalent to how many grams Hêrôin (calculated according to the rate of the minimum weight of Hêrôin and of Hêrôin, opium and other narcotics in solid prescribed in clause 4 Article 194) specifically : * for the poppy: 5 kilogram opium equivalent to 100 grams of Hêrôin kilograms of opium equivalent to 4 X grams of Hêrôin X = 4 x 100-kilogram gram 5 kilogram = 80 grams of hêrôin * for the other narcotics in solid: 300 grams of other narcotics in solidity equivalent to 100 grams of Hêrôin 150 grams of other narcotics in solidity equivalent to Y Hêrôin Y = 150 grams grams x 100 300 grams grams = Hêrôin Plus the weight of 50 grams of opium and other narcotics in the solid medium can calculate the equivalent weight of Hêrôin (X and Y) with real Hêrôin weight there is: 80 gram + 50 gram + 90 grams = 220 grams so, in this case the total quantity of opium, Hêrôin and other narcotics in the solid (the Narcotics that the offender has left the sale allow) the equivalent of 220 grams of Hêrôin (2).
-Tuesday: take other narcotics in solid standard to do computer 4 kg opium and 90 grams of Hêrôin equal to how many grams of other narcotics in solid (calculated according to the rate of the minimum weight of other narcotics in solid and opiates, narcotics in their other solid and Hêrôin prescribed in paragraph 4 to article 194); in particular: * for the poppy: 5 kilogram opium equivalent to 300 grams of other narcotics in the solid.
4 kilograms of opium equivalent of X grams of other narcotics in the solid.
X = 4 x 300 kilograms grams 5 kilogram = 240 grams of other narcotics in solid * for Hêrôin: 100 grams Hêrôin is equivalent to 300 grams of other narcotics in the solid.
90 gram equivalent to Hêrôin grams of other narcotics in Y can be solid.
Y = 90 grams x 300 grams 100 grams = 270 grams of other narcotics in solid Plus weight of opium and Hêrôin just calculate the equivalent weight of other narcotics in solid (X and Y) with the weight of other narcotics in solid food is: 240 grams + 270 grams + 150 grams = 660 grams so in this case, the total amount of opium, Hêrôin and other narcotics in the solid (the Narcotics that the offenders were unauthorized purchases) is equivalent to 660 grams of other narcotics in May (3).
-Compare the results determines the total amount of narcotics is equivalent (as the Narcotics were taken as standard), i.e. comparison of the results (1), (2), (3) with each other and with instructions in subsection 3.1 section 3 shows: * If the total amount of the Narcotics opium weight equivalent (11kg) then apply the point h paragraph 4 to article 194 to treat penalize the offenders to life imprisonment (if not under the circumstances be directed in subsection 3.3 and 3.4 of this section 3).

* If the total amount of narcotics is equivalent to Hêrôin weight (220 grams) or with other narcotics weight in solid (660 grams), then apply the point h paragraph 4 to article 194 to sanction the offender to twenty years of imprisonment (if not under the circumstances be directed in subsection 3.3 and 3.4 of this section 3).
Results of comparison above shows if retrieved a total quantity of narcotics that the offender has unauthorized purchase the equivalent weight of Hêrôin or other narcotics in the solid are more profitable for the offender; Therefore, in this example can take the total amount of narcotics is equivalent to the weight of the total or Hêrôin drugs, equivalent to the weight of other narcotics in solidity to trial for the accused.
3.3. In case there are many extenuating circumstances without the aggravation or have little more aggravation, and reviews the nature of mitigation and aggravating deems may mitigate criminal liability for the offender, it may sanction the offender than the lighter sentence level are instructed in subsection 3.1 section 3 as follows a. sanctions imprisonment from fifteen years to twenty years if the weight of narcotics in a subsection 3.1 section 3 this (in this case must have at least two extenuating circumstances the provisions of paragraph 1 to article 46 PENAL CODE);
b. twenty years imprisonment sanction if weight narcotics in point b subsection 3.1 section 3;
c. sanctions life imprisonment if weight narcotics in point c subsection 3.1 section 3.
3.4. in the case of many aggravating that no mitigating or extenuating circumstances are less than, and reviews the nature and aggravating and mitigating properties it deems necessary to the criminal liability for the offender, it may sanction the heavy sentence level offenders than court instructions in subsection 3.1 section 3 as follows a. sanctions life imprisonment if a weight of narcotics in a subsection 3.1 section 3 this (in this case must have at least two extenuating circumstances the provisions of paragraph 1 to article 46 PENAL CODE);
b. death penalty if weight narcotics in point b subsection 3.1 section 3.
3.5. In case of following the instructions in the sub-categories 3.1 and 3.4 of this section 3 to offenders sentenced to the death penalty, but if the offender is just helping people, due to some emotional capsule, being raped or because any benefit hám time ... that storing, transporting narcotics, the household may not sanction the death penalty and offenders depending on the specific circumstances that can penalizing the offenders to life imprisonment or a prison term.
4. When applying art. 4 Article 278 PENAL CODE about the embezzlement of property need attention: 4.1. In case of no aggravation and no extenuating or aggravating both, just had extenuating circumstances, but reviews the nature and aggravating and mitigating properties equivalent to each other, then the sanction the offender project level corresponds to the value of the property being seized as follows a. twenty years jail sanctions if the assets were seized worth from five hundred million to one billion;
b. sanctions life imprisonment if the property being seized there values from one billion to three billion;
c. the death penalty if the property were seized valued at three billion.
4.2. In case there are many extenuating circumstances without the aggravation or have little more aggravation, and reviews the nature of mitigation and aggravating deems may mitigate criminal liability for the offender, it may sanction the offender than the lighter sentence level are instructed in subsection 4.1 section 4 as follows a. sanctions imprisonment from fifteen years to twenty years if the assets were seized worth from five hundred million to one billion (in this case must have at least two extenuating circumstances the provisions of paragraph 1 to article 46 PENAL CODE);
b. twenty years imprisonment sanction if the property had robbed the value from one billion to three billion;
c. sanctions life imprisonment if the assets were seized valued at three billion.
4.3. In case there are many aggravating that no mitigating or extenuating circumstances are less than, and reviews the nature and aggravating and mitigating properties it deems necessary to the criminal liability for the offender, it may sanction the heavy sentence level offenders than court instructions in subsection 4.1 section 4 as follows a. sanctions life imprisonment if the assets were seized worth from five hundred million to under a billion;
b. the sanctions the death penalty if the property being seized there values from a billion or more.
4.4. In case of following the instructions in the following subsections 4.1 and 4.3 of this section 4, the offender is sentenced to death, but the offender has compensated was a significant portion of the value of the property being seized (or relatives likes meat, intestines ... of the offender has compensated instead of the offender) could not sanction the death penalty and offenders depending on the amount has compensation been that could sanction the offenders to life imprisonment or a prison term.
The compensation is deemed to have been a significant part of the value of the property being seized if: a. the compensation Has to be at least a two-part value of assets robbed;
b. Has been compensation from a third to under part two robbed property values, if the base is proof that the offender (or relatives likes meat, intestines ... of the offender) has taken every measure to compensate the value of the property being seized (everything in the House , a valuable asset; try to borrow, borrow ... to the maximum level).
5. When applying paragraph 4 a score of 279 PENAL CODE Article on charges of receiving bribes and art. 289 4 PENAL CODE for the crime of bribery brought needed attention: 5.1. In case of no aggravation and no extenuating or aggravating both, just had extenuating circumstances, but reviews the nature and aggravating and mitigating properties equivalent to each other, then the sanction the offender project level corresponding to that of bribery as follows: a. sanction twenty years imprisonment if the value of bribes from three hundred million up to under eight hundred million;
b. sanctions life imprisonment if worth of bribes from eight hundred million to two billion.
c. sanctions capital punishment if of bribery valued at two billion.
5.2. In case there are many extenuating circumstances without the aggravation or have little more aggravation, and reviews the nature of mitigation and aggravating deems may mitigate criminal liability for the offender, it may sanction the offender than the lighter sentence level are instructed in subsection 5.1 of this section 5 as follows a. sanctions imprisonment from fifteen years (for the crime of receiving bribery) or from thirteen years (for the crime of giving bribes) to under twenty years if worth of bribes from three-hundred million to under eight hundred million (this case must have at least two extenuating circumstances the provisions of paragraph 1 to article 46 PENAL CODE);
b. twenty years imprisonment sanction if the value of bribes from eight hundred million to below two billion;
c. sanctions life imprisonment if of bribes valued at two billion.
5.3. In case there are many aggravating that no mitigating or extenuating circumstances are less than, and reviews the nature and aggravating and mitigating properties it deems necessary to the criminal liability for the offender, it may sanction the heavy sentence level offenders than court instructions in subsection 5.1 of this section 5 as follows :

a. sanctions life imprisonment if worth of bribes from three hundred million comes under eight hundred million;
b. death penalty if worth of bribes from eight hundred million or more.
5.4. In the case under the directed at the subsection 5.1 and 5.3 of this section 5, the offenders receive bribes are sentenced to death, but the offender got bribes already paid back a significant part of the value of bribes (or relatives likes meat, intestines ... of the offender have filed in lieu of the offender) , then may not sanction the death penalty and offenders depending on the value of the bribes to resubmit that could sanction the offenders to life imprisonment or a prison term.
Be deemed to have filed a significant part of the value of the bribes if: a. the value of the bribes already paid back should be at least two values part of the bribe was received;
b. the value of bribes already paid back must be from a third to under a two-part value of bribes received, if base is proof that the offender (or relatives likes meat, intestines ... of the offense I) has taken all measures to return the value of the bribe was received (have sold out houses , a valuable asset; try to borrow, borrow ... to the maximum level).
5.5. In the case according to the instructions in the following subsections 5.1 and 5.3 of this section 5, the offenders take bribes must be sentenced to death, but who take bribes is forced or non-forced that actively declare before being detected, then the is processed according to the provisions in paragraph 6 to article 289 PENAL CODE.
6. Note that the cases be instructed in item 2 of this resolution is not the case cause particularly severe consequences; the case is directed at items 4 and 5 of this resolution is that the cases do not cause particularly severe consequences. In the case of particularly severe consequences (for fraud seized property) or in the case of particularly serious consequences (for embezzlement, receiving bribes, the crime of giving bribes) are distinguished as follows: 6.1. If the value of the property being seized, the value of the bribes in one of the cases was directed at items 2, 4 and 5 of this resolution, they must apply both points a and b of paragraph 4 to the corresponding laws. To sanction the offender project level corresponds to the offence and consequently, beyond the performed according to the instructions in the section 2, 4 and 5 of this resolution to consider the consequences of serious crime due to special causes.
6.2. If the value of the property being seized, the value of the bribe under minimal guidance in items 2, 4 and 5 of this resolution shall only apply paragraph 4 b corresponding laws and sanctioning the offender project level corresponds to particularly severe consequences caused by the crime.
7. This resolution was the Council of judges of the Supreme People's Court passed on 15 March 2001 and is effective since May 10, 2001.
The instructions in this resolution is applied when a trial of first instance, appellate, cassation trial or retrial for the offence before the date this resolution takes effect.
For the cases in which the offenders were convicted in accordance with the guidance documents previously and the judgment has the effect of the law is not based on the instructions in this resolution to protest under the order of Cassation, retrial./.

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