Our Party and State have always focused on equal rights among all citizens, putting the interests of citizens first, which is the core for the development of the country. But in fact, it can be seen that there are many cases of “big fish eating small fish” where some people have abused their positions and powers to coerce and oppress the weak. So about the matter “Abuse of position and power to appropriate property in Vietnam” Let’s find out with LSX in the article below.
Legal grounds
- Penal Code 2015
- Resolution 03/2020/NQ-HDTP
What is abuse?
Abuse can be understood as abuse of power is doing things within one’s authority to serve a particular purpose that does not go to the general goal of the proposed authority.
Abuse of power is the act of a person with a position or power, for personal gain or motivation, who intentionally exceeds the permissible limit of power, exceeds the powers assigned by law when performing official duties, causing damage to the interests of the State, the society, the legitimate rights and interests of citizens (According to the Penal Code 2015).
– Abuse of power English is “Abuse of power”.
Abuse is an act of a person with positions or powers, willingly excels the permissible limit of power, exceeding the powers assigned by law when performing public duties causing damage to the interests of the State and society, and the legitimate rights and interests of citizens
– Crime of abusing positions and powers to appropriate property – “Crime of abusing positions and powers to appropriate property”.
Abuse of position and power to appropriate property in Vietnam
Legal basis:
Currently, “The crime of abusing positions and powers to appropriate property” is strictly regulated in Article 355 – Penal Code 2015 (amended and supplemented in 2017):
Article 355. Abuse of power or position for appropriation of property
1. Any person who abuses his/her position or power to appropriate another person’s property assessed at from VND 2,000,000 to under VND 100,000,000 or under VND 2,000,000 in any of the following cases shall face a penalty of 01 – 06 years’ imprisonment:
a) The offender was disciplined for the same offence;
b) The offender has a previous conviction for any of the offences specified in Section 1 of this
Chapter which has not been expunged.
2. This offence committed in any of the following cases shall carry a penalty of 06 – 13 years’ imprisonment:
a) The offence is committed by an organized group;
b) The offence involves deceitful or dangerous methods;
c) The offence has been committed more than once;
d) The property appropriated is assessed at from VND 100,000,000 to under VND 500,000,000;
đ) The offence results in property damage of from VND 1,000,000,000 to under VND 3,000,000,000;
e) The money or property appropriated was meant for poverty reduction, provision of benefits
for wartime contributors, contribution to reserve funds, provision of emergency aid for people in
areas suffering from a natural disaster or epidemic or extremely disadvantaged areas.
3. This offence committed in any of the following cases shall carry a penalty of 13 – 20 years’ imprisonment:
a) The property embezzled is assessed at from VND 500,000,000 to under VND 1,000,000,000;
b) The offence results in property damage of from VND 3,000,000,000 to under VND 5,000,000,000;
c) The offence results in bankruptcy or shutdown of another enterprise or organization;
d) The offence has a negative impact on social security, order, or safety.
4. This offence committed in any of the following cases shall carry a penalty of 20 years’ imprisonment or life imprisonment:
a) The property embezzled is assessed at ≥ VND 1,000,000,000;
b) The offence results in property damage of ≥ VND 5,000,000,000.
5. The offender might also be prohibited from holding certain positions or doing certain jobs for 01 – 05 years, liable to a fine of from VND 30,000,000 to VND 100,000,000 or have part or all of his/her property confiscated.
Composition of crime:
- Subject of crime
Subject of this crime is a special subject who has positions and powers. Persons without positions and powers to commit acts of appropriation of property are not considered subjects of this crime. And if the subject has no position, power will not constitute this crime.
- Objects of crime
This crime has infringed on two social relations including:
The first is to infringe on the correctness and order of the performance of work and tasks.
Secondly, the crime has infringed upon the property ownership relationship of others.
- The objective side
The objective act of this crime is the act of appropriating another person’s property by abusing positions and powers. When committing the act of appropriating property, the offender based on his/her position and authority has gone beyond the scope of that position or authority.
The act of appropriating other people’s property in this crime is shown in different forms, including the following forms:
Abuse of positions and powers to intimidate other people’s spirits to appropriate their property; This is a case where offenders use their positions and powers to threaten, coerce others, and appropriate their property. Persons who are threatened for fear of causing damage must allow persons with positions and powers to appropriate property.
Abuse of position and power to deceive others into appropriating their property: this is a case where the offender exceeds his position and authority, giving untrue information to others about the transaction. property and misappropriation of property on the basis that the person being deceived believes and delivers the property.
Abuse of positions and powers to appropriate other people’s property assigned to offenders on the basis of trust: this is the case where a person with a position and power is entrusted with property by others but has abused it. that trust and appropriation of property.
- The subjective side
The offender’s fault is a direct intentional fault: The offender is well aware that his/her act is dangerous to society but still performs it, foreseeing that such act may cause serious consequences for the society. society. And the offender wishes that when he/she commits the act, he/she will appropriate property from other people for him/her.
The motive of crime is self-interest: The offender commits the crime because of greed for material possessions, wanting to turn other people’s property into his own.
Penalties for abuse of position and power
Basic framework: imprisonment from one year to six years
– The first aggravating bracket: a prison term of between six and thirteen years, applicable in cases where the crime involves one of the aggravating circumstances specified in Clause 2.
– The second aggravating bracket: imprisonment from thirteen years to twenty years, applicable in cases of crime involving one of the aggravating circumstances specified in Clause 3.
– The third aggravating bracket: imprisonment for twenty years or life imprisonment, applicable in cases of crime involving one of the aggravating circumstances specified in Clause 4.
– Additional penalties: ban from holding certain posts for one to five years, possibly a fine of between ten million dong and fifty million dong.
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Frequently asked questions
Specifically, in Clause 2, Article 3 of the Law on Anti-corruption 2018 stipulates:
“2. Person with position and power is a person appointed, elected, recruited, contracted or otherwise, with or without salary, assigned to perform tasks or public duties. certain duties and have certain powers while performing such tasks or duties, including:
a) Cadres, civil servants and public employees;
b) Officers, professional soldiers, defense workers and public employees in agencies and units of the People’s Army; officers, professional non-commissioned officers, officers, professional and technical non-commissioned officers, public security workers in agencies and units of the People’s Public Security;
c) The representative of the state capital share in the enterprise;
d) Persons holding managerial titles or positions in enterprises or organizations;
đ) Other persons assigned to perform tasks or official duties and have powers while performing such tasks or official duties.
According to the provisions of Article 354 of the Penal Code 2015, revised 2017, anyone who abuses his position and authority directly or through an intermediary receives or will receive any of the following benefits for himself or herself: that person or another person or entity to do or not to do something for the benefit or at the request of the person giving the bribe can be criminally prosecuted for the Crime of Taking a bribe:
– Money, property or other material benefits valued at VND 2 million or less or under VND 2 million but have been disciplined for this act but still commit it or have been sentenced for one of the following crimes: Bribery, Crime of abusing positions and powers to appropriate property…, have not yet had criminal records but still commit violations;
– Non-material benefits.
Thus, the case of accepting bribes from over VND 2 million or under VND 2 million, but previously disciplined for this act or convicted of one of the crimes related to position, have not yet been expunged. If they continue to commit violations, they may be criminally prosecuted for the crime of accepting bribes.
According to Article 20 of the Law on Anti-corruption 2020, people with positions and powers in agencies, organizations and units when performing their tasks, official duties and in social relations must comply with the code of conduct, including including:
Standards of conduct are things that must or should not be done in accordance with the law and professional characteristics in order to ensure integrity, responsibility and ethics of public service.
Specifically, persons holding positions and powers in agencies, organizations or units may not do the following:
– Interferences in problem solving;
– Establish and participate in the management and administration of private enterprises, limited liability companies, joint-stock companies, partnerships and cooperatives, unless otherwise provided for by law;
– Advising other domestic and foreign enterprises, organizations and individuals on jobs related to state secrets, work secrets, and jobs falling within their competence or participating in settlement;
– Establish and hold titles and positions in management and administration of private enterprises, limited liability companies, joint-stock companies, partnerships and cooperatives in the fields in which they were previously responsible. managed within a certain period of time as prescribed by the Government;
– Illegally using information of agencies, organizations or units;
– Other things that people with positions and powers are not allowed to do according to the provisions of the Law on Cadres and Civil Servants, the Law on Public Officials, the Law on Enterprises and other relevant laws.
– Heads and deputy heads of heads of agencies, organizations or units are not allowed to assign their spouses, fathers, mothers, children, brothers, sisters, younger siblings to hold managerial positions on human resources organizations. accountant, treasurer, storekeeper in an agency, organization, or unit or transact, purchase and sell goods and services, sign contracts for such agency, organization or unit.
– Heads and deputy heads of heads of state agencies may not contribute capital to enterprises operating within the lines of business in which such persons directly perform state management or let their spouses, fathers, mother or child doing business within the line of business that such person directly performs the state management of.
– Members of the Board of Directors, members of the Members’ Council, President of the company, General Director, Deputy General Director, Director, Deputy Director, Chief Accountant and other holders of managerial titles and positions in a state-owned enterprise may not:
+ Sign contracts with enterprises owned by spouses, fathers, mothers, children, brothers, sisters;
+ Allow enterprises owned by spouses, fathers, mothers, children, brothers, sisters and brothers to participate in bidding packages of their enterprises;
+ Arrange spouses, fathers, mothers, children, brothers, sisters, siblings to hold managerial positions in personnel organization, accountant, treasurer, storekeeper in the enterprise or trade, purchase and sell goods. , services, contract signing for businesses.
Conclusion: So the above is Abuse of position and power to appropriate property in Vietnam. Hopefully with this article can help you in life, please always follow and read our good articles on the website: lsxlawfirm.com
