Questioning Chief Justice of the Supreme People’s Court Nguyen Hoa Binh at the 21st session of the Standing Committee of the National Assembly on March 20, delegate Nguyen Thi Kim Thuy (Da Nang) mentioned the inadequacy in the time of damage determination. caused by the offence.
There are places where the court judges based on the value of property at the time the defendant commits the crime, but there is a place where the value of property at the time of prosecution is based to determine criminal liability.
| Lawyer Truong Anh Tu. |
However, in the Criminal Procedure Code, there is no specific regulation on the time of determining the value of the assessed property. This is within the common tenets of criminal science and the science of valuation. The State also has a number of sub-law documents to stipulate, in which, judges currently base on Resolution No. 03/2020/NQ-HDTP of the Council of Judges of the Supreme People’s Court dated December 30. 2020.
In Article 10 of Resolution No. 03 on determining the value of appropriated property and damage caused by crimes of corruption and other crimes related to position, it is stated: Value of appropriated property as a basis for criminal handling determined at the time of the commission of the offence. In case the crime is committed continuously or for a long time, the value of the appropriated property shall be determined at the time of ending the criminal act. For cases where the criminal act is taking place but is detected or prevented, the value of the appropriated property shall be determined at the time the criminal act is detected or prevented.
Property damage used as a basis for criminal handling shall be determined on a case-by-case basis as follows: If the damage occurs at the time the crime is committed, the damage shall be determined at this time; for continuous and prolonged crimes, the damage is determined at the time when the crime is detected and prevented or the crime ends.
Where damage occurs or persists after the crime is committed or after the crime has ended, the damage is determined at the time the damage was prevented. If the damage cannot be determined according to the instructions at Points a and b, Clause 2 of this Article, the damage shall be determined at the time of prosecution of the case.
The above rule sounds simple but when applied it is quite complicated. For example, if it is not possible to determine the time of violation, determine the valuation time as the time when the crime is discovered.
The time of committing the crime is when signing decisions to allocate land to businesses at a cheap price or not through auction or bidding, it falls 5, 10 years ago. There is a huge difference in property value between the time when the crime was committed and the present time due to the land fever across the country.
However, most of the damage that is determined by the State as a basis for criminal handling is assessed at the present time, causing great disadvantages for the accused and defendants. This goes against the principle of adjudication in favor of the accused and defendants and does not guarantee science.
In fact, where the crime is, it will be handled there. For example, the defendant caused damage to the State at the time of committing the crime of VND 1,000 billion, but when discovered and valued at the time of discovery, it was VND 5,000 billion. Therefore, it is not possible to take the time of damage at the time of handling the case, it must be the time of committing the crime. As for the price increase or not, it is not related to the legal science of determining damage to serve as a basis for criminal handling of the accused and defendants.
For example, in the case of Intentional Injury, he tried me for intentionally causing injury, but 5 years later he died because of that wound, he couldn’t bring me to deal with the crime of murder.
Recently, many defendants and defendants in corruption cases do not submit to the State’s damage determination as a basis for criminal handling against them.
Here, there needs to be consistency, not ambiguity. It is impossible to determine the time of violation of the law, so it must be handled according to the time when the case is heard or when the crime is detected. It sounds scientific, but if the time of the crime is not detected, how can the accused and defendants be criminally handled?
Therefore, guiding or not guiding automatically must apply to the provisions of legal science to determine where the offense is, at what time to handle it.
Currently, there are guidelines like this for each place to conduct a trial like delegate Nguyen Thi Kim Thuy has questioned the Chief Justice of the Supreme People’s Court. If so, it will not ensure the fairness as well as the principle of general application of the law to all violators.
Therefore, it is necessary to provide consistent guidance from the Supreme Court as soon as possible. Resolution 03 of the Judiciary Council may be re-guided, but must ensure consistency of a single point of view, direction, and timing of the act. Crime is the time to apply all regulations, including the valuation for criminal handling of the accused and defendants.
Lawyer Truong Anh Tu, Chairman of TAT Law Firm
Judgment difference is over 1,600 billion VND
Answering delegate Thuy about the time to determine the value of damage in economic and corruption cases, where the time of crime is taken, where the time of prosecution is taken, Chief Justice of the Supreme People’s Court Nguyen Hoa Binh said: know, according to the provisions of the current law as well as the principles of legal science, the consequences of the cases are determined at the time of the crime. All objective facts, motives, purposes, acts and even tricks must be counted at the same time. If calculating the consequences of violations at other times, the scientific validity is not guaranteed.
Mr. Binh gives an example, if a plot of land in the case, this year, is discovered and prosecuted for VND 100 billion, discovered last year it costs VND 50 billion, next year it is discovered, it costs VND 200 billion. Therefore, determining consequences at the time of discovery will be arbitrary, unfair and scientific. Previously, due to awareness, this condition was present.
“For example, at the time they violated the project, the project’s land price was only 100 billion, but at the time of discovery, the land price increased to 200 billion, and we determine the damage of the case 100 billion, it seems the scale of the case is reduced compared to the current price. Previously, there was such an opinion,” said Mr. Binh.
According to Mr. Binh, following the guidance of the Central Steering Committee on anti-corruption and anti-corruption, in 2022, the Council of Judges of the Supreme People’s Court has issued a resolution guiding this issue. Accordingly, all cases use the time of the crime as the basis for determining the value of property to calculate the value of damage in the cases. However, the recovery of property, according to the Chief Justice, not only collects the value of the property at the time of the crime, but also collects the entire value of the property at the time of judgment execution.
“For example, the value of the project at the time of judgment execution is 100 billion, we collect 100 billion, it is 300 billion at the time of judgment execution, we collect all 300 billion, not 100 billion according to the damage value. At the time of the crime, the State’s property is not lost,” explained Mr. Binh.
Debating, delegate Nguyen Thi Kim Thuy cited 2 judgments including: the appellate criminal judgment 158 dated May 15, 2020 related to 3 state land properties which are calculated according to the land price at the time of prosecution; The appellate criminal judgment dated November 29, 2021 on the land area 8-12 Le Duan (District 1, Ho Chi Minh City) again determined the damage at the time the defendants committed the crime.
According to Ms. Thuy, with the case of land area 8-12 Le Duan, if the damage is determined at the time of prosecution, the damage value is 1,927 billion VND, and if at the time of committing the crime, it is only 252 billion VND. Thus, the difference is over 1,600 billion VND.
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