CIRCULARS

INTERDISCIPLINARY

OF THE PEOPLE’S COURT

MAX HIGH, MAXIMUM PEOPLE SUPERVISORY INSTITUTE, MINISTRY OF INTERIOR

Guidance on the application of Articles 95 and 96 of the Penal Code

For the correct and consistent application of the provisions of Article 95 of the Criminal Code on the crime of “illegally manufacturing, storing, using, trading in or otherwise appropriating military weapons, military technical means” and Article 96 of the Penal Code on the crime of “illegally manufacturing, storing, using, trading in or appropriating explosives, flammable substances, toxic substances or radioactive substances”, after consulting the Ministry of National Defense. The Supreme People’s Court, the Supreme People’s Procuracy, and the Ministry of the Interior agree to guide a number of points as follows:

A – About article 95 of the penal code.

I – About the subject of the crime.

Subjects of crimes defined in Article 95 of the Criminal Code are military weapons and military technical means.

1. Military weapons include pistols, rifles, machine guns of all sizes, large guns, automatic weapons, ammunition for the above weapons and bombs and mines. , grenades, mines and explosives are specified at Point a, Article 1 of Decree No. 175 / CP of December 11, 1964 of the Government Council on the Management of Military Weapons, Sports Weapons and National Defense Another weapon which, according to State regulations, is a military weapon.

Ammo types are considered to be military weapons in the form of whole and in bulk, but when used, they are mounted as shells with explosive particles and detonators.

According to the provisions of Point b, Article 1 of Decree No. 175 / CP above, sports weapons for defense and other types of weapons such as shotguns, pistols, muskets, daggers, machetes, spears marks, explosives and mines used in production are not considered military weapons. Therefore, it should be noted that only mines, explosives, detonators used for defense purposes are considered military weapons, but if used in production (including equipment for armed forces to make economic) is considered explosives – subject of the crime specified in Article 96 of the Criminal Code.

2. Military technical means are vehicles, weapons and other means designed, manufactured and equipped for the armed forces for training, combat and combat service.

3. Military weapons and military technical means, which have been liquidated in accordance with State agencies’ regulations on the liquidation of military weapons, military technical means or are completely invalid. used according to their functions is not subject to the crime specified in Article 95 of the Criminal Code.

For military weapons and military technical means which have been liquidated but the liquidation is not allowed or the liquidation is not in compliance with regulations of competent State agencies, but the military weapons Military technical means, which are still valid for use according to their functions, shall still be regarded as subjects of the crime specified in Article 95 of the Criminal Code.

II. About criminal acts and handling directions.

Criminal acts specified in Article 95 of the Penal Code include: Illegally manufacturing, illegally storing, using illegally, illegally purchasing and appropriating military weapons and military technical means. . These criminal acts are construed as follows:

1. The act of manufacturing military weapons or military technical means is completely renewed or assembled from parts of weapons or means and is valid for use according to the features of their effects. For the act of completely refreshing the gun is considered to make military weapons if the ammunition used for the gun is renewed it is the ammunition used for military weapons.

Only establishments producing weapons of the armed forces and other establishments licensed by competent State bodies may produce and assemble military weapons; Therefore, any case where the manufacture or assembly of military weapons is not allowed to manufacture, assemble, or are allowed to manufacture or assemble military weapons of one type, then to manufacture and assemble another type are considered create illegal weapons. The act of manufacturing or assembling technical means in similar cases is also regarded as illegally manufacturing military technical means.

2. Illegally storing military weapons and military technical means means storing them without the permission of a competent State agency. The storage place can be a place to live, work, carry with you, in baggage or store in any other location chosen by the offender. Long or short storage times have no meaning for condemnation.

In addition, anyone who possesses a military weapon or military technical means regardless of their origin (such as being donated, given, digged, picked up …) without declaring and submitting it to the institution. According to the competent State authority, their act of storing such objects is also considered illegal possession of military weapons and military technical means.

Illegally storing military weapons, causing fatal consequences, harming the health of others, causing serious property damage (such as hiding grenades for others to dig, causing fatal explosions … .); or in case of taking illegally held weapons for cleaning or disassembly, causing death, harm to the health of other people or causing serious property damage, only criminal prosecution under Point c, Clause 2 Article 95 (or Article 96) of the Criminal Code on the crime of illegally storing military weapons with aggravating circumstances that cause serious consequences without further criminal prosecution for the crime of unintentional death. , inadvertently causing injury or inadvertently causing damage to property.

3. The illegal use of military weapons or military technical means is the use without permission or without the permission of a competent person or agency. The act of using is to load, pull the trigger; the use of grenades is to pull the pin, pull the bud …

Đối với trường hợp sử dụng vũ khí quân dụng, phương tiện kỹ thuật quân sự có giấy phép hoặc được phép của người hoặc cơ quan Nhà nước có thẩm quyền nếu chủ thể là những người được quy định tại Điều 249 Bộ luật hình sự có hành vi vi phạm các quy định về sử dụng vũ khí gây hậu quả nghiêm trọng thì bị truy cứu trách nhiệm hình sự về tội “vi phạm các quy định về sử dụng vũ khí” theo Điều 268 Bộ luật hình sự; nếu chủ thể không phải là những người được quy định tại Điều 249 Bộ luật hình sự thì bị truy cứu trách nhiệm hình sự về tội “vô ý làm chết người” mà không bị truy cứu trách nhiệm hình sự theo Điều 95 Bộ luật hình sự.

Persons equipped with military weapons who have illegally used military weapons equipped to commit crimes or who, though not equipped but have used military weapons to commit crimes, shall be prosecuted. criminal charges for two crimes: “the crime of illegally using military weapons” under Article 95 of the Penal Code and the crime committed under the respective law of the Criminal Code. If a crime has been committed but the law stipulates “use of weapons” as a circumstance defining the penalty, then criminal prosecution for the relevant clause of the law must be examined.

4. According to the spirit specified in Article 3 of Decree No. 175 / CP of December 11, 1984 of the Government Council, only agencies permitted by the Government may buy and sell military weapons and explosives; therefore, it is considered the illegal purchase and sale of military weapons, military technical means, and the sale and purchase without a license or without authorization by a competent State authority, are not required. In full, both buying and selling acts, in which only one of these acts, the offender must be examined for penal liability according to Article 95 of the Penal Code.

5. Appropriation of military weapons and military technical means includes acts of robbery, rape, robbery, public appropriation, embezzlement, theft, fraudulent appropriation, abuse of credit appropriation .

Also considered to appropriate military weapons, military technical means the acts of soldiers, personnel, defense workers and others equipped with military weapons, military technical means to combat training, to perform duties while working, when discharged from the army, serving as a soldier, retiring from retirement or changing to another job without being allowed to use military weapons, military technical means the, but has not returned, according to the provisions of the State.

6. Acts of destroying military weapons and military technical means in order to take some parts shall be handled according to each subject as follows:

– In the case of the subject being important security and defense means such as aircraft, warships, radar, tanks, armored vehicles, missiles …, but the person commits the offense with a purpose. in order to oppose the people’s administration, they shall be examined for penal liability for “destroying the material and technical bases of socialism” according to Article 79 of the Criminal Code; if there is no purpose against the people’s administration, they shall be criminally prosecuted for “destroying important means of national security” under Article 94 of the Criminal Code.

– In the case of the subject being a military weapon or other military technical means, if the subject is the person defined in Article 249 of the Criminal Code, he / she shall be examined for penal liability for “destroying weapons. military gas, military technical means “(according to Article 269 of the Criminal Code); if the subject is another person, he / she will be examined for penal liability for the crime of destroying the socialist property (according to Article 138 of the Penal Code).

7. In the case of a person who has the act of illegally manufacturing, storing, trading in or appropriating a military weapon or military technical means for the purpose of preparing tools or means for committing a crime. Other offenses and other crimes that have been committed must be examined for penal liability for the two crimes of “illegally manufacturing, storing, trading in or misappropriating military weapons, military technical means” causing consequences. serious consequences under Point c, Clause 2, Article 95 of the Criminal Code and the corresponding crime have been committed. In cases where other crimes have not been committed yet as a serious crime, they will be examined for penal liability for two crimes.

8. Article 95 of the Criminal Code stipulates many different criminal acts for many different types of subjects. Therefore, in case the accused or defendants commit many different crimes, depending on each specific case, the offender may be examined for penal liability for a crime with the full criminal name. the act has been committed or for many independent crimes for each act committed and at trial, Article 41 of the Penal Code will be applied to decide the general penalty, specifically as follows:

– If the offender commits many offenses but these offenses are closely related (this offense is a condition of execution, the inevitable consequence of the other offense) For the same subjects or a subject, only criminal prosecution for one crime with the full crime of the act was committed. For example: A person who makes weapons and stores and puts them into use is subject to criminal prosecution for “illegally making, possessing and using military weapons”.

– If the offender commits many independent acts against different independent subjects, he will be criminally prosecuted for many independent crimes for each independent act that was performed and when the trial will be imposed. Article 41 of the Penal Code is used to decide the general penalty. Example: A person who possesses two military guns and buys 5 grenades is subject to criminal prosecution for two crimes of “illegal possession of military weapons” and “illegal purchase of military weapons. “.

III. About the amount of illegal objects to serve as a basis for investigation

criminal liability under the terms of the law

The determination of the number of illegal objects for criminal prosecution under the provisions of Article 95 of the Criminal Code must be based on the features, effects and use value of each type of military weapon and technical means. specific military techniques.

For a number of subjects that disseminate the determination of the quantity of illegal objects for criminal prosecution in accordance with the provisions of the law as follows:

1. Those who illegally manufacture, store, use, trade in, sell or otherwise appropriate military weapons in the following quantities shall be examined for penal liability according to Clause 1, Article 95 of the Penal Code:

a) Infantry guns shoot one shot: from 1 to 5 guns.

b) Personal machine gun such as machine gun, submachine gun of all kinds: 1 gun or 2 guns.

c) Other infantry guns such as machine gun, machine gun, B40, B41, 12 mm 7, 14 mm 5: 1 gun.

d) Grenades, mortars, artillery shells up to 100 mm: from 1 to 10 balls.

dd) Mortars and shells of more than 100 mm: from 1 to 5 balls.

e) From 50 bullets to 300 infantry gun bullets (from a machine gun or less).

g) From 30 rounds to 200 rounds, for the types of ammunition 12mm 7, 14mm 5, 23mm, 24mm (other than shells).

h) Explosives of all kinds from 1kg to 15kg.

i) From 200 to 1000 pieces for the detachment of mines and buds.

k) From 500m to 3000m of retarded wire, explosion line.

l) For persons who illegally manufacture, store, use, trade in or misappropriate military weapons in quantities below the guidance at Points e, g, h, i, k above, but have been administratively sanctioned for one of these acts or have been sentenced but the sentence has not been cleared for intentional crime or in case of serious consequences, may be examined for penal liability under Clause 1 Article 95 Criminal Code.

2. Those who illegally fabricate, stockpile, use, trade in, sell or otherwise appropriate military weapons in the following quantity are considered as illegal objects in great quantity and must be examined for penal liability according to Clause 2 Article 95 of the Penal Code:

a) Infantry guns fired with one shot: from 6 to 25 guns.

b) Personal machine guns such as machine guns, submachine guns of all kinds: from 3 to 15 guns.

c) Other infantry guns such as machine gun, machine gun, B40, B41, 12 mm 7, 14 mm 5: from 2 guns to 10 guns.

d) Grenades, mortars, artillery shells up to 100 mm: from 11 to 50 balls.

dd) Mortars and shells of more than 100 mm: from 6 to 15 balls.

e) Infantry bullets (from machine guns or less): from over 300 members to 1,500.

g) Bullets 12 mm 7, 14 mm 5, 23 mm, 24 mm (other than shells): from over 200 rounds to 1000 rounds.

h) Explosives of all kinds from over 15kg to 75kg.

i) Harvesters: from over 1,000 to 5,000 pieces.

k) Flame retardant wire, explosion line: from over 3000m to 15,000m.

3. Those who illegally fabricate, store, use, trade in, sell or otherwise appropriate military weapons in quantities above the maximum specified at Point 2 of this Section are committing crimes in particularly serious cases and Must be examined for penal liability according to Clause 3 Article 95 of the Penal Code.

4. Those who illegally crafted, stockpiled, used, traded, or appropriated a military weapon for many different types of military weapons, whose quantity for each of them did not reach the level guided at point For this 1 item, you must be prosecuted for penal liability according to Clause 1 Article 95 of the Criminal Code. If the quantity of each weapon is up to the level specified at Point 1 of this Section, it must be examined for penal liability according to Clause 2, Article 95 of the Criminal Code. If the quantity of each weapon is up to the level specified at Point 2 of this Section, it must be examined for penal liability according to Clause 3, Article 95 of the Criminal Code.

B – About article 96 of the penal code.

I. About the subject of crime.

Subjects of crimes specified in Article 96 of the Penal Code are explosives, flammable substances, toxic substances or radioactive substances.

1. Explosives are substances capable of causing a rapid, strong chemical reaction, emitting a lot of heat and light, and at the same time generating gas and creating explosions such as detonators, explosives, explosive wires, fire wires. slow, propellant etc.

It should be noted that only detonators, explosives, detonators, flame retardants (including armed forces) are used for production, civil construction and other economic purposes other than training and combat. Fighting and serving new combat is considered explosive.

2. Flammable substance means a substance that spontaneously ignites when exposed to oxygen in air, water or when under the impact of other factors and substances that ignite spontaneously at low temperatures, such as: salt potassium nitride), phosphorus, suppositories …

3. Toxins are substances with very high toxicity and very harmful to human health and life, if infected in a certain dose (maybe very little). The poisonous drugs specified in Table A such as: Ammonium and its salts, phosphorus zinc, sodium and its salts, mercury salts … subjects of crimes specified in Article 96 of the Criminal Code.

4. Radioactive material is the lethality factor of nuclear weapons, including unstable isotopes of chemical elements capable of emitting alpha, beta, gamma … The characteristic harmful effects of radioactive substances are disease and radiation to humans and animals.

5. In case it is necessary to determine whether it is an explosive, a flammable, toxic or radioactive substance or not, as well as in the case where the function, effect, use value, or danger of each type is determined explosives, flammable substances, toxic substances or radioactive substances, the investigating bodies, procuracies and courts need to consult the competent authorities or solicit expertise.

II. About criminal acts and handling directions.

Criminal acts specified in Article 96 of the Penal Code include: illegally manufacturing, illegally storing, using illegally, illegally trading and appropriating explosives, flammable substances, poisons, and propellants. radiation. How the crime of manufacturing, possessing, using, buying and selling is considered illegal as well as which act is appropriation and the handling direction is done according to the instructions in Section II, Part A of This circular.

III. About the amount of illegal objects as a basis

prosecute criminal under the terms of the law.

The determination of the quantity of illegal objects for criminal prosecution under the provisions of Article 96 of the Criminal Code must be based on the features, effects, use value and danger of each type of explosives or substances. fire, toxic, radioactive substances.

For some types of explosives, it is common to determine the quantity of illegal objects for criminal prosecution in accordance with the provisions of the law as follows:

1. Those who illegally fabricate, store, use, trade in, or appropriate explosives in the following quantities shall be examined for penal liability according to Clause 1, Article 96 of the Penal Code:

a) Explosives of all kinds from 1kg to 15kg.

b) Artillery powder: from 3kg to 30kg.

c) Release drug: from 1kg to 10kg.

d) Flame retardant wire, explosion line: From 500m to 3000m.

e) Miner-pack, lobe buds: from 200 to 1,000.

For persons who illegally manufacture, store, use, trade in, or appropriate explosives in quantities below the above guidance levels but have been administratively sanctioned for either of these acts or already sentenced but the sentence has not been cleared for intentional or professional crimes or in the case of serious consequences, may be examined for penal liability according to Clause 1, Article 96 of the Penal Code.

2. Those who illegally fabricate, store, use, trade in, or appropriate explosives in the following quantity, shall be considered as illegal objects in great quantity and must be examined for penal liability under Clause 2 Article 96 of the Penal Code:

a) Explosives of all kinds from over 15kg to 75kg.

b) Artillery powder: From over 30kg to 150kg.

c) Release drug: From over 10kg to 50kg.

d) Flame retardant wire, explosion line: From over 3,000m to 15,000m.

e) Mine team, lobe buds: From over 1,000 to 10,000.

3. Those who illegally fabricate, store, use, trade in, or appropriate explosives in quantities above the maximum specified at Point 2 of this Section are committing crimes in particularly serious cases and must be prosecute criminal liability under Clause 3 Article 96 of the Penal Code.

4. Those who illegally fabricate, store, use, trade in, or appropriate explosives of various types whose quantity is not up to the level specified at Point 1 of this Section, must be examined for penal liability according to Clause 1 Article 96 of the Penal Code. If the quantity for each category reaches the level specified at Point 1 of this Section, it shall be examined for penal liability according to Clause 2, Article 96 of the Criminal Code. If the quantity for each category reaches the level specified at Point 2 of this Section, it shall be examined for penal liability according to Clause 3, Article 96 of the Criminal Code.

C – Regarding enforcement:

This Circular takes effect from the date of its promulgation and replaces documents previously issued by the Supreme People’s Court, the Supreme People’s Procuracy, and the Ministry of the Interior which are contrary to this Circular.

In the course of implementation, if any problems arise, the concerned agencies should report them to the Supreme People’s Court, the Supreme People’s Procuracy, and the Ministry of the Interior for timely guidance.