JOINT CIRCULAR
Of the Supreme People’s Court – The Supreme People’s Procuracy – Ministry of Public Security – Ministry of Justice – Ministry of Defense
No. 01/2003 / TTLT-TANDTC-VKSNDTC-BCA-BTP-BQP dated August 11, 2003
guiding the application of a number of provisions in Chapter XXIII “Crimes in violation of the obligations and responsibilities of soldiers” of the 1999 Penal Code
In order to properly and uniformly apply the provisions of Chapter XXIII “Crimes in violation of the obligations and responsibilities of soldiers” of the 1999 Penal Code (hereinafter referred to as the Criminal Code), the People’s Court The Supreme People’s Procuracy, the Ministry of Public Security, the Ministry of Justice and the Ministry of Defense agree to guide a number of points as follows:
I. ABOUT THE SUBJECTS OF CONCERNS OF VIOLATION OF OBLIGATIONS AND RESPONSIBILITIES OF THE PEOPLE’S REGULATIONS IN ARTICLE 315 OF THE CRIMIN CODE
1. Active soldiers are citizens of the Socialist Republic of Vietnam who directly serve in the Army. Military men include officers, non-commissioned officers, soldiers and professional soldiers as defined in the Law on Military Service and the Law on Officers of the Vietnam People’s Army.
2. Reserve soldiers are citizens who are registered in the mobilization reserve category under the Ordinance on the Mobilization Reserve Force. A reserve soldier is only liable for criminal liability for crimes that violate his obligations and responsibilities during the time he / she is concentrated in training.
Considered reserve soldier during concentrated training in the following cases:
a) Concentrate on annual political and military training;
b) Concentrate on rehearsals;
c) Focus on checking the readiness to mobilize;
d) Focus on checking combat readiness.
3. Citizens recruited to serve in the Army include:
a) National Defense Worker (by labor contract or recruited to serve in the Army) and National Defense Officer. These persons are only criminally responsible for the crime of infringing upon the service, the military’s responsibility during the time they participate in combat or directly serve combat;
b) The citizen is decided by a competent authority to serve the Army when:
– There is a general order to mobilize, mobilize locally;
– There is war;
– There is a need to fight to protect the locality, to protect the territorial sovereignty but not to the point of local mobilization.
The above persons shall only bear criminal responsibility for crimes of infringing upon their military obligations and responsibilities during the time of being recruited.
4. The militia, self-defense that is attached to the Army in combat or in combat, is a person belonging to a militia division, and is assigned to a military unit when wishing to fight or serve combat to Increase the ability to complete combat missions of military units. The militia, self-defense and the Army, in combat or in combat service shall bear only criminal liability for crimes of infringing upon the military’s obligations and responsibilities during the period of service specified in decisions of competent authorities.
II. ABOUT SOME CONCEPTS, DISCOUNTING IS CRITICAL FACTORS OR PENALTY FRAMEWORK
1. Regarding “officer” and “commander” details specified at Point a, Clause 2, Articles 316, 322, 323, 324, 325, 326, 337 and 338 of the Criminal Code.
a) “Officer” means an army officer who is appointed to the rank of lieutenant, lieutenant-rank, general and equivalent by the State. Officers include active officers and reserve officers.
b) “Commander” means an army officer with the position of platoon leader and equivalent or higher. Equivalent titles are specified by the competent authority.
2. Regarding the concepts “commanders” and “superiors” prescribed in Clause 1, Articles 316 and 319 of the Penal Code and the concept of “subordinates” specified in Clause 1, Article 320 of the Penal Code.
a) “Commander” is a military officer assigned to be in charge of the agency or unit under his authority, and has the duties and powers within the scope of that agency or unit.
b) For the purpose of identification as a “superior” under Clause 1, Articles 316 and 319 of the Penal Code and “subordinates” under Clause 1, Article 320 of the Penal Code, between the offender and the person issuing the order (or victims) must have a business relationship and are determined as follows:
b1) If the offender and the person issuing the order (or the victim) are on the same payroll in a certain agency or unit, then:
– The person with the higher position is the superior, the person with the lower position is the subordinate, regardless of rank;
– The person with higher rank is the superior, if they have the same position.
b2) If the offender and the person issuing the order (or the victim) are not on the same payroll in a certain agency or unit, then:
– People with higher ranks are superiors, regardless of their positions in the Army;
– The person with higher position in the Army is the superior, if they are of the same rank.
b3) If the offender and the person issuing the order (or the victim) are not on the same staff in a certain agency or unit, but are performing the same tasks for a certain period of time, then:
– The person assigned to be in charge is superior, regardless of rank or position;
– The person with higher rank is the superior regardless of position, if no one is assigned to take charge;
– The person with a higher position in the Army is the superior, if those persons are of the same rank and no one is assigned.
3. Regarding the concept of “teamwork” as provided for in Clause 1, Article 321 of the Penal Code.
Soldiers regardless of rank, position, staffing or not on the same staff in the same unit are considered “comrades” according to the provisions of Clause 1, Article 321 of the Penal Code, if the offense is committed. humiliating, assaulting each other not related to the work relationship.
4. Regarding the concept of an “order” defined in Clause 1, Articles 316 and 317 of the Penal Code.
“Orders” are orders of the direct commanders or competent superiors to force their subordinates to comply. Commands can be verbal, written or by command signal.
Orders of direct commanders or competent superiors must comply with the law. In case the person issuing an order is unlawful, the distinction should be made as follows:
a) If the person executing the order does not know that the order is unlawful, the person issuing the order must bear responsibility for the execution of that order;
b) If the person executing the order knows that the order is illegal, then:
– If the person still obeys but has no ideas to detect or propose, both the person issuing the order and the person who obeys the order must be responsible for the execution of that order;
– If that person has discovered and proposed to the person issuing the order, but the person issuing the order still requires compliance, only the person issuing the order must be responsible for the unlawful execution of the order.
5. Regarding “crimes in combat”, “crimes in war zones”, “crimes in wartime” as provided for in relevant laws: Clause 3 of Article 316, Clause 2 of Article 317 Clause 3 Article 318, Clause 1 Article 325, Point c Clause 2 Article 326, Clause 2 Article 330, Clause 2 Article 331, Clause 1 Article 332, Clause 2 Article 333, Clause 2 Article 334, Clause 1 Article 337 and Point c Clause 2 Article 338 of the Penal Code.
a) “Committing crimes in combat” means a crime while the offender is directly fighting or directly in combat.
b) “Committing a crime in a war zone” means a crime in an area that is undergoing military combat operations between us and the enemy.
c) “Committing crimes during war time” is a crime committed during war in our country. The state of war is announced by the President by decision of the National Assembly or the Standing Committee of the National Assembly.
6. Regarding circumstances “causing serious consequences”, “causing very serious consequences”, “causing particularly serious consequences” specified in Articles 326 to 339 of the Penal Code.
When applying these facts, attention should be paid to:
a) The consequences must be caused by the criminal act, that is, there must be a causal relationship between the offense and the consequences that occur. The consequences can be material consequences (such as damage to life, health, property, weapons, military technical means ??) or non-material such as adversely affecting real present the Party’s line, the State’s policies on national security and defense; affect the Army’s ability and readiness to fight; affect the unit’s performance of duties; affecting solidarity relations within the Army; militia relationship etc ??
b) In order to determine how a crime causes serious consequences, causes very serious consequences, or causes particularly serious consequences, it is necessary to consider and evaluate in a comprehensive and comprehensive manner the types of consequences caused by such acts. The offense includes property damage, loss of life, health, damage to weapons, equipment and non-material damage.
c) The determination of damage to life, health, and property shall comply with the Joint Circular No. 02/2001 / TTLT-TANDTC-VKSNDTC-BCA-BTP dated December 25, 2001 of the People’s Court. The Supreme People’s Procuracy, the Ministry of Public Security, and the Ministry of Justice guide the application of a number of provisions in Chapter XIV “Property infringement crimes” of the 1999 Penal Code.
d) The damage to weapons and military technical means is determined as follows:
d1) Causing damage to weapons or military technical means in one of the following cases is considered to cause serious consequences:
– From 3 to 10 pistols, rifles, submachine guns;
– From 1 to 5 other infantry guns such as machine guns, machine guns, 12.7 mm to 25 mm high-gun guns, B40 and B41 guns;
– From 5 to 15 mines, grenades;
– From 3 to 10 mortar shells, artillery shells;
– From 300 to 1,000 infantry bullets of the size 11.43 millimeters or less;
– From 200 to 600 anti-aircraft machine gun bullets of the size 12.7 to 25 mm
– From 10 to 30 kg of explosives of all kinds;
– From 1,000 to 3,000 buds or exploding tubes;
– From 3,000 to 10,000 m of flame retardant wire, explosion cord etc ??
d2) Causing damage to weapons or military technical means in one of the following cases is considered to cause very serious consequences:
– From 11 to 30 handguns, rifles, submachine guns;
– From 6 to 20 other infantry guns such as machineguns, machine guns, 12.7 to 25 mm high-beam machine guns, B40 and B41 guns;
– From 16 to 45 mines and grenades;
– From 11 to 30 mortar shells, artillery shells;
– From 1,001 to 3,000 infantry bullets of the size 11.43 millimeters or less;
– From 601 to 2,000 anti-aircraft machine gun bullets of the size 12.7 to 25 mm;
– From over 31 kg to 100 kg of explosives of all kinds;
– From 3,001 to 10,000 detonators or detonators;
– From 10,000 to 30,000 m of retardant wire, detonator wire etc ??
d3) Causing damage to weapons and military technical means in an amount exceeding the maximum amount as guided at Point d.2, Section 6, causing particularly serious consequences.
d4) In case of causing damage to different types of weapons and military technical means, each of which has not reached the level specified at Point d.1, this Section 6, it is considered causing serious consequences if the total damage is caused. corresponding to the level guided at Point d.1, Section 6. Examples: a crime of damaging 2 rifles (66% of the minimum guideline), 3 kg of explosives (30% of the minimum guideline) and 300 buds (30% of the minimum guideline) are considered. is a crime causing serious consequences (total damage of all kinds is 126%, above the guideline minimum).
Using the same calculation to determine very serious consequences or particularly serious consequences for the event of damage to different types of weapons and military technical means, each of which has not been reached. guided at Points d.2 or d.3 of this Section 6.
dd) For non-material damage, depending on each specific crime case, the consequences caused by the crime are serious, very serious or particularly serious. When evaluating, it is necessary to pay attention to consequences such as adversely affecting the implementation of the Party’s line, the State’s policies on national security and defense; the unit’s combat capabilities, strength and readiness; the performance of the unit’s duties; prestige and honor of the Army; solidarity relations within the Army; militia relationship etc ??
7. When applying Article 322, Article 324 and Article 325 of the Penal Code, the following should be noted:
a) If such weapons and military technical means are not lost, damaged or lost or damaged but not to the extent that they are considered serious consequences, Point b Clause 2 Article 322 or point b Clause 2 Article 324 or Point c Clause 2 Article 325 of the Penal Code;
b) If such weapons and military technical means are lost or damaged to the extent that they are considered serious consequences, both Points b and d, Clause 2, Article 322 or Point b and Point d, Clause 2, Article shall apply. 324 or point b and point d clause 2 Article 325 of the Penal Code;
c) If such weapons and military technical means are lost or damaged to the extent that they are considered very serious consequences, both Points b and d, Clause 2, Article 322 or Point b and Point d, Clause 2, apply. Article 324 or point c and point d clause 2 Article 325 of the Penal Code;
d) If such weapons or military technical means are lost or damaged to the extent that they are considered particularly serious consequences, Clause 3 of Article 322 or Clause 3 of Article 324 or Clause 3 of Article 325 of the Figure Code shall apply. the;
dd) In cases where, before surrendering to the enemy or abandoning their combat positions or defecting the offenders, destroying weapons and military technical means, Point b, Clause 2, Article 322 or Point b, Clause 2, Article shall not apply. 324 or Point c, Clause 2, Article 325, for offenders. However, in this case, the offender shall be subject to additional criminal prosecution for the destruction of military weapons and military technical means as provided for in Article 334 of the Penal Code.
e) “Important document” means a secret military work document or, although not a secret military work document, but has a great effect on the unit’s mission completion. For example: documents about the organization, staffing, equipment, work plans of the unit, documents for the operation of the unit, etc. ??
g) In cases where the offender submits to the enemy or brings or disposes of secret documents on military work and reveals the secret of military work or then appropriates, sells, sells, destroys, or loses documents Then, in addition to the application of Point b, Clause 2, Article 322 or Point b, Clause 2, Article 324 or Point c, Clause 2, Article 325 of the Penal Code, they shall also be subject to further criminal prosecution for the respective crimes specified in Article 327 or Article 328 of the Penal Code;
h) In cases where, before surrendering to the enemy or abandoning their fighting positions or defecting the offender, who destroyed military work secret documents, Point b Clause 2 Article 322 or Point b Clause 2 Article shall not apply. 324 or Point c, Clause 2, Article 325, for the offender. However, in this case the offender is subject to additional criminal prosecution for the destruction of secret military documents specified in Article 327 of the Penal Code.
III. ABOUT SOME SPECIAL CRIMES
1. Regarding the crime of defection (Article 325 of the Penal Code)
a) Only prosecute criminal prosecution for persons who leave the unit in order to avoid their obligations when falling into one of the following cases:
a1) Have been disciplined for the act of leaving the Army in order to avoid the obligation but also commit the violation. Considered to have been disciplined in the following cases:
– Has been dealt with by one of the handling methods in accordance with the Ordinance on Army management regarding deserteration and has not expired to be considered as not being handled. For cases to be handled for which a deadline for the expiration of the time limit is not yet set, and the person handled is deemed not to be handled, that time limit is one year from the date of being handled. If the reason is not clearly stated in the sanctioning decision of the competent person, the proceeding-conducting agency, before instituting the case, must verify the specific reason of the disciplinary decision. This verification must be in writing to serve as a basis for consideration of prosecution or non-criminal prosecution;
– Have been administratively sanctioned for the act of defection by one of the forms specified in the legal document on sanctioning of administrative violations in the field of defense and the time limit has not yet expired to be considered. is not yet administratively sanctioned.
a2) Causing serious consequences as guided at Point c, Section 6, Part II of this Joint Circular.
b) When applying Clause 2, Article 325 of the Penal Code, attention should be paid to:
b1) If he is an officer or the commander who leaves the army ranks to avoid military service in one of the cases guided at Point a, Section 1, Part III, he / she shall be examined for penal liability. pursuant to Point a Clause 2 Article 325 of the Penal Code.
b2) The fact that “enticing others to commit crimes” specified at Point b, Clause 2, Article 325 of the Criminal Code is the act of seducing, persuading, bribing or threatening? leading to other soldiers defecting together.
2. Regarding crimes of humiliating or assaulting commanders or superiors (Article 319 of the Penal Code); humiliating or using corporal punishment against subordinates (Article 320 of the Penal Code); humiliating, assaulting teammates (Article 321 of the Penal Code)
a) In addition to the details of superiors, subordinates and teammates guided in Section 2 and Section 3, Part II of this Joint Circular, it is important to pay attention to whether criminal acts are committed in the relationship. work or not.
Working relationship is the relationship between soldiers in the performance of assigned tasks. The relationship here is the subordinate command relationship (military administrative management relationship) between soldiers in the same unit or the coordination relationship between soldiers of different units to perform assigned tasks. .
In all cases where a soldier humiliates, assaults or uses corporal punishment against another soldier due to his personal motivation but not due to his / her working relationship, he / she shall be subject to criminal prosecution for humiliating or assault teammates (Article 321), regardless of the rank and title of the offender and the victim.
A soldier who humiliates, assaults or uses corporal punishment against another soldier in his working relationship shall base himself on the status of the offender and the victim in that relationship to examine for criminal liability. it’s correct; detail:
– If the offender is a subordinate of the victim, he / she shall be examined for penal liability for humiliating or assaulting the commander or superiors (Article 319 of the Penal Code);
– If the offender is the leader or the victim’s superior, he / she shall be held responsible for humiliating or using corporal punishment against his subordinates (Article 320 of the Penal Code).
b) The act of humiliation constitutes a crime only in case of serious offense to the dignity and honor of a superior (Article 319 of the Penal Code), a subordinate (Article 320 of the Penal Code) or a teammate (Article 321 Criminal Code). Acts of insulting dignity or honor in some of the following cases are considered serious:
– Frequent and prolonged insulting behavior;
– Be discouraged by others but not suspend the insult;
– Many people offend a person;
– Insulting many people;
– Insulting harm to the health or leaving bad consequences, affecting the reputation and honor of the offended;
– Insulting by indecent forms, defamation expressing undue disregard for the dignity and honor of the victim, etc. ??.
c) For corporal acts, assaults that cause death or injury or harm the health of other persons to the extent that it constitutes a crime of infringing on the health of another person, the offender shall be examined for penal liability for crimes infringing upon their respective lives and health specified in Chapter XII “Crimes that infringe upon human life, health, dignity and honor” of the Penal Code without criminal prosecution for crimes and comply with the provisions of Article 319, Article 320 or Article 321 of the Penal Code.
3. The application of Clause 4, Article 336 of the Penal Code, on the offense of policy violations against war invalids and death soldiers in combat.
Appropriated objects defined in Clause 4, Article 336 of the Penal Code are only relics of the martyrs, that is, objects left by the martyrs but have no property value or undue property value. but it has spiritual value for the martyrs’ personalities (such as photos, medals, medals, diaries ??)
For acts of appropriating relics of martyrs with property value, they shall be examined for penal liability for their appropriation of property according to the provisions of Articles of Chapter XIV of the Penal Code. In this case, the acts of publicity appropriating, stealing, abusing the trust to appropriate the estate even though it is worth less than VND 500,000 are also considered to cause serious consequences (not just the value of the property, but also also taking into account the non-material consequences) for criminal penalties.
4. On the offense of violating the regulations on the use of military weapons (Article 333 of the Penal Code)
Use of military weapons mentioned in this Article is an act to promote the features of military weapons for a certain purpose.
Crime of breaching regulations on the use of weapons is an act of a person armed with a military weapon using such weapon in contravention of the equipment purpose, causing serious consequences.
The crime of violating the regulations on the use of military weapons should be distinguished from the crime of unintentionally inflicting injury on or causing harm to the health of others due to a violation of administrative rules (Article 109 of the Penal Code), from unintentionally causing human death due to violation of administrative rules (Article 99 of the Penal Code) and with unintentionally causing serious damage to property (Article 145 of the Penal Code); detail:
– Using a military weapon equipped to shoot birds, catch fish, make explosions ?? If causing serious consequences, they will be examined for penal liability for their violations of the regulations on the use of military weapons (Article 333 of the Penal Code);
– The user of a military weapon makes a joke, someone who does not examine a gun before cleaning a gun, someone who is not careful in storing explosive weapons (such as the safety lock is tripped over, accidentally put his hand on the trigger ?? ) causing serious consequences, depending on the damage occurring, examine the criminal liability for intentionally causing injury or causing harm to the health of another person due to a violation of administrative rules (Article 109 of the Penal Code the); Accidentally causing human death due to violation of administrative rules (Article 99 of the Penal Code) or unintentionally causing serious damage to property (Article 145 of the Penal Code).
5. Regarding the crime of losing or unintentionally damaging military weapons and military technical means (Article 335 of the Penal Code)
When applying Article 335 of the Penal Code, it should be taken into account that the conduct of the person assigned to the manager (such as an army storekeeper) or is equipped with a weapon or military technical means that results in loss or damage. Serious then constitutes this crime. The consequences here include lost or damaged weapons, military technical means and other damage caused by the loss or damage of weapons.
IV. IMPLEMENTATION OF JOINT CIRCULAR
1. This Joint Circular takes effect 15 days after its publication in “CONG BAO” and replaces the previous documents guiding the implementation of the provisions of the 1985 Penal Code on crimes of infringement of obligations and responsibilities. military service.
2. In the course of implementation, if any problem arises, it is requested to report it to the Supreme People’s Court, the Supreme People’s Procuracy, the Ministry of Justice, the Ministry of Public Security or the Ministry of National Defense for explanation or additional instructions promptly.