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1. How is the crime of embezzlement defined?
2. Can a person sentenced to death for embezzlement have his sentence reduced to life imprisonment?
1. How is the crime of embezzlement defined?
According to Article 353 of the 2015 Penal Code, amended and supplemented in 2017, it is stipulated as follows:
“Article 353. Embezzlement
1. Any person who abuses his/her position or power to embezzle property under his/her management 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 02 – 07 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 07 – 15 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;
dd) The money or property embezzled 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;
e) The offence results in property damage of from VND 1,000,000,000 to under VND 3,000,000,000;
g) The offence has a negative impact on life of officials, public employees, and workers of an agency or organization.
3. This offence committed in any of the following cases shall carry a penalty of 15 – 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 has a negative impact on social security, order, or safety;
d) The offence results in bankruptcy or shutdown of another enterprise or organization.
4. This offence committed in any of the following cases shall carry a penalty of 20 years’ imprisonment, life imprisonment, or death:
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.
6. Officer-holders in enterprises and organizations other than state organizations who take bribes shall be dealt with in accordance with this Article.”
According to the above provisions, anyone who abuses his/her position and power to appropriate assets under his/her responsibility for management shall be prosecuted for criminal liability with a penalty of 20 years in prison, life imprisonment or death penalty if falling into the following cases:
– Appropriating assets worth 1,000,000,000 VND or more;
– Causing property damage of 5,000,000,000 VND or more.
2. Can a person who commits the crime of embezzlement of assets and has been sentenced to death have his/her sentence reduced to life imprisonment?
Pursuant to the provisions of Point c, Clause 3, 4, Article 40 of the 2015 Penal Code, amended and supplemented in 2017, it is stipulated that:
“3. The life sentence shall not be executed in any of the following cases:
a) Pregnant women or women raising children under 36 months of age;
b) Persons aged 75 years or older;
c) The person sentenced to death for embezzlement or taking bribes, after being sentenced, has returned at least one third of the property embezzled or bribes taken, closely cooperates with the authorities in the process of investigation or trial, or has made reparation in an effort to atone for the crime.
4. In the cases specified in Clause 3 of this Article or the death sentence is commuted, the death sentence shall be replaced with life imprisonment.”
Simultaneously, pursuant to Clause 1, Article 2 of Resolution 01/2016/NQ-HDTP dated June 30, 2016 guiding the application of a number of provisions in Clause 3, Article 7 of the Penal Code No. 100/2015/QH13:
“1. From December 9, 2015, a person who has been sentenced to death for embezzlement or bribery and the verdict has come into legal effect but has not yet been executed, and falls into one of the following cases, the death penalty will be converted to life imprisonment:
a) After being sentenced, the person sentenced to death has proactively returned at least three-quarters of the embezzled or bribed property and actively cooperated with the authorities in detecting, investigating and handling the crime;
b) After being sentenced, the person sentenced to death has proactively returned at least three-quarters of the embezzled or bribed property and made great achievements.”
Thus, according to the above provisions, a person who has been sentenced to death for embezzlement of property and the verdict has come into effect but the death sentence has not yet been executed will have the death penalty converted to life imprisonment if the following cases apply:
– After being sentenced, the person sentenced to death has proactively returned at least three-quarters of the embezzled property and actively cooperated with the authorities in detecting, investigating and handling the crime;
– After being sentenced, the person sentenced to death has proactively returned at least three-quarters of the embezzled property and made great achievements.
– Or the person sentenced to death h is pregnant women or women raising children under 36 months old; people aged 75 or older; are granted amnesty.