Tiếng Việt
TABLE OF CONTENTS
1. Administrative sanctions
2. Criminal prosecution
3. Signs of the crime of Abuse of trust to appropriate property
1. Administrative sanctions
According to Point c, d, Clause 1, Article 15 of Decree 144/2021/ND-CP dated December 31, 2021, stipulating sanctions for administrative violations in the fields of security, order, and social safety; prevention and control of social evils; fire prevention and fighting; rescue; prevention and control of domestic violence:
“Article 15. Violations of regulations on causing damage to the property of other organizations and individuals
1. A fine of from VND 2.000.000 to VND 3.000.000 shall be imposed for any of the following violations:
c) Taking a loan, borrowing, leasing property of another person or receiving property of another person under a contract, then uses deception to appropriate it or refuses to repay the loan or return the property when the repayment or return of property is due despite he/she is capable of doing so;
d) Taking a loan, borrowing, leasing property of another person or receiving property of another person under a contract and then fails to repay loan or return property and uses it for illegal purposes which result in the offender’s inability to repay the loan or return the property”.
2. Criminal prosecution
Pursuant to Article 175 of the 2015 Penal Code, amended and supplemented in 2017:
“Article 175. Abuse of trust to appropriate property
1. A person who commits any of the following acts to obtain another person’s property which is assessed at from VND 4,000,000 to under VND 50,000,000, or to obtain another person’s property which is assessed at under VND 4,000,000 despite the fact that he/she incurred a civil penalty for property appropriation or has a previous conviction for this offence or any of the criminal offences specified in Article 168, 169, 170, 171, 172, 173, 174 and 290 hereof which has not been expunged, or to obtain another person’s property which is the primary means of livelihood of the victim or has a spiritual value to the victim shall face a penalty of up to 03 years’ community sentence or 06 – 36 months’ imprisonment:
a) Taking a loan, borrowing, leasing property of another person or receiving property of another person under a contract, then uses deception to appropriate it or refuses to repay or return the property when the repayment or return of property is due despite he/she is capable of doing so.
b) Taking a loan, borrowing, leasing property of another person or receiving property of another person under a contract and then uses it for illegal purposes which result in the offender’s inability to repay or return the property.
2. This offence committed in any of the following cases shall carry a penalty of 02 – 07 years’ imprisonment:
a) The offence is committed by an organized group;
b) The offence is committed in a professional manner;
c) The property obtained is assessed at from VND 50,000,000 to under VND 200,000,000;
d) The offence involves abuse of the offender’s position or power or committed in the name of an agency or organization;
dd) The offender employs deceitful methods to commit the offence;
e) Dangerous recidivism;
3. This offence committed in any of the following cases shall carry a penalty of 05 – 12 years’ imprisonment:
a) The property obtained is assessed at from VND 200,000,000 to under VND 500,000,000;
b) The offence has a negative impact on social safety, order, and security.
4. If the property obtained is assessed at from VND 500,000,000 or over, the offender shall face a penalty of 12 – 20 years’ imprisonment.
5. The offender might also be liable to a fine of from VND 10,000,000 to VND 100,000,000, be prohibited from holding certain positions or doing certain works for 01 – 05 years, or have all or part of his/her property confiscated”.
3. Signs of the crime of Abuse of trust to appropriate property
3.1 Regarding the subject of the crime
A person with full criminal capacity. Pursuant to Clause 1, 2, Article 12 of the 2015 Penal Code, amended and supplemented in 2017, the age of criminal responsibility is stipulated as follows:
“Article 12. Age of criminal responsibility
1. A person from 16 years of age and above shall bear criminal responsibility for every crime, except for those otherwise prescribed by this Code.
2. A person from 14 years of age to be low 16 years of age shall bear criminal responsibility for murder, deliberate infliction of bodily harm upon other people, raping, raping people under 16 years of age, sexual abuse of people from 13 to under 16 years of age, robbery, kidnapping for ransom; very serious crimes, and extremely serious crimes defined in the following Articles: 123, 134, 141, 142, 143, 144, 150, 151, 168, 169, 170, 171, 173, 178, 248, 249, 250, 251, 252, 265, 266, 286, 287, 289, 290, 299, 303 and 304 of this Code.”
3.2 Regarding the object of the crime
The crime of Abuse of trust to appropriate property does not violate personal relationships but only violates ownership relationships. Crimes that violate the relationship related to the legal property ownership rights of citizens are protected by law.
3.3 Subjective aspects of the crime
The crime of Abuse of trust to appropriate property is also committed intentionally (direct intention).
The purpose of the offender is the desire to appropriate property. The purpose of appropriating property is a mandatory sign of the crime of Abuse of trust to appropriate property. However, in addition to the purpose of appropriation, the offender may also have other purposes along with the purpose of appropriation or accept the purpose of appropriation of another accomplice, then the offender will also be prosecuted for criminal liability for the crime of Abuse of trust to appropriate property.
3.4 Objective aspects of the crime
– Regarding the consequences:
+ The value of the property appropriated from another person is from VND 4,000,000 or more;
+ The value of the property appropriated is less than VND 4,000,000 but has been administratively sanctioned for the act of appropriating property or has been convicted of this crime or one of the other crimes of infringement of property, such as: Crime of Robbery, Crime of Kidnapping for the purpose of appropriating property, Crime of Extortion of property, Crime of Snatching property, Crime of Public appropriation of property, Crime of Theft of property, Crime of Using computer networks, telecommunications networks, electronic means to commit acts of appropriation of property but has not had the criminal record cleared and still violates;
+ The property appropriated is the means of livelihood of the victim himself or property of special spiritual value to the victim and their family.
– Regarding objective behavior:
+ The offender legally obtains property through loan contracts, borrowing and leasing property from others or in other forms. After obtaining the property, the offender uses fraudulent means or absconds to appropriate that property or when the time comes to return the property, despite having the conditions and ability, he intentionally does not return it;
+ If the offender does not use fraudulent means or absconds but uses the property for illegal purposes leading to the inability to return the property, it is also considered Abuse of trust to appropriate property.