✦ Tóm lược thông minh
This Joint Circular guides the application of the provisions in Chapter XXIII of the Criminal Code of 1999 concerning crimes violating duties and responsibilities of military personnel, including the regulated subjects, sentencing circumstances, and penalty ranges. The Circular takes effect from the date of publication in the Official Gazette and replaces previous documents.
Đối tượng áp dụng
Active-duty military personnel, reservists, citizens conscripted into the Military, People's Militia, and Self-Defense Forces affiliated with the Military; commanders, superiors, and comrades-in-arms within the Military.
Các điểm cốt lõi
- Active-duty and reserve military personnel must bear criminal responsibility for crimes violating their duties and responsibilities as military personnel during specific periods.
- Officers and commanders are defined according to their positions and ranks in the Military.
- The circumstance 'committing a crime during combat', 'in areas with ongoing combat operations', and 'during wartime' is determined based on actual situations.
- Serious, very serious, and extremely serious consequences are determined according to specific criteria regarding material and immaterial losses.
- The offense of violating regulations on the use of military weapons and causing loss or damage to military weapons and technical equipment has a clearly defined penalty range.
🌐 Tác động xã hội từ văn bản này
- Criminal liability is clearly defined, helping to ensure discipline within the Military.
- Serious circumstances and consequences are specifically provided, enhancing fairness in adjudication.
- These provisions may impose a legal burden on violators but also contribute to maintaining national defense security order.
❓ Câu hỏi thường gặp
Which military personnel must bear criminal responsibility?
Active-duty, reserve military personnel, and citizens conscripted into the Military and People's Militia and Self-Defense Forces affiliated with the Military may all bear criminal responsibility for crimes violating their duties and responsibilities as military personnel during specific periods.
How is the circumstance 'committing a crime during combat' determined?
Committing a crime during combat occurs when the offender is directly engaged in combat or serving in combat support activities. This includes specific time and space elements of military operations.
How are serious consequences determined?
Serious consequences are determined based on losses to human life, health, property, military weapons, and technical equipment. Specific criteria regarding the quantity and degree of loss have been established.
What are the serious consequences of violating regulations on the use of military weapons?
Violating regulations on the use of military weapons resulting in serious consequences will be subject to criminal prosecution under Article 333 of the Criminal Code, including losses to human life, health, and property.
Which military personnel can be prosecuted for the crime of insulting or assaulting a comrade-in-arms?
The crime of insulting or assaulting a comrade-in-arms is subject to criminal prosecution when such acts occur in the context of work relations. If there is no work relationship, the military personnel will be subject to prosecution for another offense.
Toàn văn
CIRCULAR JOINT CIRCULAR
Guidelines for applying certain provisions
in Chapter XXIII "Crimes Violating Duties and Responsibilities of Military Personnel" of the Criminal Code of 1999
_____________________________________
To apply correctly and uniformly the provisions in Chapter XXIII "Crimes Violating Duties and Responsibilities of Military Personnel" of the Criminal Code of 1999 (hereinafter referred to as the Criminal Code), the Supreme People's Court, the Supreme People's Procuracy, the Ministry of Public Security, the Ministry of Justice, and the Ministry of National Defense have jointly issued the following guidelines:
I. ON THE SUBJECTS OF CRIMES VIOLATING DUTIES AND RESPONSIBILITIES OF MILITARY PERSONNEL AS PROVIDED FOR IN ARTICLE 315 OF THE CRIMINAL CODE
1. Active military personnel are citizens of the Socialist Republic of Vietnam serving directly in the Military. Active military personnel include officers, non-commissioned officers, soldiers, and professional military personnel as defined in the Law on Military Service and the Law on Officers of the Vietnam People's Army.
2. Reserve military personnel are citizens registered in the reserve mobilization quota under the Ordinance on Reserve Mobilization Forces. Reserve military personnel shall only be criminally responsible for crimes violating duties and responsibilities of military personnel during their concentrated training period.
Reserve military personnel shall be considered during their concentrated training in the following cases:
a) Annual regular political and military training;
b) Concentrated exercises;
c) Concentrated readiness inspection for mobilization;
d) Concentrated combat readiness inspection.
3. Citizens conscripted to serve in the Military include:
a) National Defense Workers (under labor contracts or recruited to serve in the Military) and National Defense Civil Servants. These individuals shall only be criminally responsible for crimes violating duties and responsibilities of military personnel during their participation in combat or direct combat service;
b) Citizens conscripted by competent state agencies to serve in the Military when:
- There is a general or partial mobilization order;
- There is a war;
- There is a need for combat to protect localities or territorial sovereignty without reaching the level of partial mobilization.
The above individuals shall only be criminally responsible for crimes violating duties and responsibilities of military personnel during their conscription period.
4. Militia and Self-Defense Force personnel attached to the Military for combat or combat support are persons belonging to a part of the militia and self-defense force assigned to a military unit when there is a need for combat or combat support to enhance the unit's combat mission completion capability. Militia and Self-Defense Force personnel attached to the Military for combat or combat support shall only be criminally responsible for crimes violating duties and responsibilities of military personnel during the attachment period as specified in the decision of the competent authority.
II. ON SOME CONCEPTS AND CIRCUMSTANCES AS AGGRAVATING OR SENTENCING FACTORS
1. On the concepts "officer" and "commander" provided for in point a, Clause 2 of Articles 316, 322, 323, 324, 325, 326, 337, and 338 of the Criminal Code.
a) "Officer" is a military cadre conferred with the rank of warrant officer, lieutenant, major, colonel, and equivalent by the State. Officers include active and reserve officers.
b) "Commander" is a military cadre holding a position from platoon leader and equivalent upwards. Equivalent positions are defined by the competent authority.
2. On the concepts "commander" and "superior" provided for in Clause 1 of Articles 316 and 319 of the Criminal Code and the concept "subordinate" provided for in Clause 1 of Article 320 of the Criminal Code.
a) "Commander" is a military cadre entrusted with responsibility for an agency or unit under their command, having tasks and authorities within that agency or unit.
b) To determine whether someone is a "superior" as provided for in Clause 1 of Articles 316 and 319 of the Criminal Code and "subordinate" as provided for in Clause 1 of Article 320 of the Criminal Code, there must be a work relationship between the offender and the person issuing the order (or the victim), which is determined as follows:
b1) If the offender and the person issuing the order (or the victim) are both assigned to the same agency or unit, then:
- The person with a higher position is the superior, the person with a lower position is the subordinate, regardless of rank;
- The person with a higher rank is the superior if they hold the same position.
b2) If the offender and the person issuing the order (or the victim) are not assigned to the same agency or unit, then:
- The person with a higher rank is the superior, regardless of their position in the Military;
- The person with a higher position in the Military is the superior if they hold the same rank.
b3) If the offender and the person issuing the order (or the victim) are not assigned to the same agency or unit but are performing the same task for a specific period, then:
- The person entrusted with responsibility is the superior, regardless of rank or position;
- The person with a higher rank is the superior, regardless of position, if no one is entrusted with responsibility;
- The person with a higher position in the Military is the superior if they hold the same rank and no one is entrusted with responsibility.
3. On the concept "comrade-in-arms" provided for in Clause 1 of Article 321 of the Criminal Code.
Military personnel, regardless of rank or position, who are either assigned to the same unit or different units, are considered "comrades-in-arms" as provided for in Clause 1 of Article 321 of the Criminal Code, if the crime of insulting or assaulting each other is unrelated to their work relationship.
4. On the concept "order" provided for in Clause 1 of Articles 316 and 317 of the Criminal Code.
"Order" is a directive from a direct commander or superior with authority that obligates subordinates to comply. An order can be verbal, written, or signaled.
Orders from a direct commander or superior with authority must comply with the law. In cases where the order is unlawful, it should be distinguished as follows:
a) If the person executing the order does not know that the order is unlawful, then the person issuing the order shall be responsible for the execution of the order;
b) If the person executing the order knows that the order is unlawful, then:
- If that person still complies without raising any objections, both the person issuing the order and the person executing the order shall be responsible for the implementation of that order;
- If that person has raised objections to the person issuing the order but the issuer still requires compulsory compliance, only the person issuing the order shall be responsible for the implementation of that unlawful order.
5. Regarding the circumstances "committing a crime during combat," "committing a crime in a war zone," "committing a crime during wartime" as stipulated in Articles 316, Clause 3; Article 317, Clause 2; Article 318, Clause 3; Article 325, Clause 1; Article 326, Clause 2, Point c; Article 330, Clause 2; Article 331, Clause 2; Article 332, Clause 1; Article 333, Clause 2; Article 334, Clause 2; Article 337, Clause 1; and Article 338, Clause 2, Point c of the Criminal Code.
a) "Committing a crime during combat" means committing a crime during the time the offender is directly engaged in combat or directly serving combat operations.
b) "Committing a crime in a war zone" means committing a crime in an area where military combat activities are taking place between the two sides.
c) "Committing a crime during wartime" means committing a crime during the period when there is a state of war in the country. The state of war is declared by the President based on a decision of the National Assembly or the Standing Committee of the National Assembly.
6. Regarding the circumstances "causing serious consequences," "causing very serious consequences," "causing extremely serious consequences" as stipulated in Articles from 326 to 339 of the Criminal Code.
When applying these circumstances, attention should be paid to:
a) The consequences must be caused by the criminal act, i.e., there must be a causal relationship between the criminal act and the resulting consequences. These consequences may be material (such as loss of life, health, property, weapons, military technical equipment)…or non-material such as adversely affecting the implementation of the Party's policies and the State's policies on national defense and security; affecting the capability and readiness for combat of the Military; affecting the performance of unit tasks; affecting internal solidarity within the Military; relations between the Military and civilians, etc.…
b) To determine what constitutes causing serious consequences, causing very serious consequences, or causing extremely serious consequences, a comprehensive and overall assessment of all types of consequences caused by the criminal act must be made, including damage to property, loss of life and health, damage to weapons and equipment, and non-material damage.
c) Determining damage to life and health, and property is carried out according to Circular Joint No. 02/2001/TTLT-TANDTC-VKSNDTC-BCA-BTP dated December 25, 2001, issued by the Supreme People's Court, the Supreme People's Procuracy, the Ministry of Public Security, and the Ministry of Justice guiding the application of certain provisions in Chapter XIV "Crimes Infringing Property Rights" of the Criminal Code of 1999.
d) Determining damage to weapons and military technical equipment is as follows:
d1) Causing damage to weapons and military technical equipment in any of the following cases shall be considered as causing serious consequences:
- From 3 to 10 pistols, rifles, submachine guns;
- From 1 to 5 other infantry weapons such as machine guns, heavy machine guns, anti-aircraft machine guns with calibers from 12.7 mm to 25 mm, B40, B41 guns;
- From 5 to 15 mines, grenades;
- From 3 to 10 mortar shells, artillery shells;
- From 300 to 1,000 infantry bullets with calibers up to 11.43 mm;
- From 200 to 600 anti-aircraft machine gun bullets with calibers from 12.7 mm to 25 mm;
- From 10 to 30 kg of various explosives;
- From 1,000 to 3,000 detonators or explosive tubes;
- From 3,000 to 10,000 meters of slow-burning fuse or explosive cord, etc.…
d2) Causing damage to weapons and military technical equipment in any of the following cases shall be considered as causing very serious consequences:
- From 11 to 30 pistols, rifles, submachine guns;
- From 6 to 20 other infantry weapons such as machine guns, heavy machine guns, anti-aircraft machine guns with calibers from 12.7 mm to 25 mm, B40, B41 guns;
- From 16 to 45 mines, grenades;
- From 11 to 30 mortar shells, artillery shells;
- From 1,001 to 3,000 infantry bullets with calibers up to 11.43 mm;
- From 601 to 2,000 anti-aircraft machine gun bullets with calibers from 12.7 mm to 25 mm;
- More than 31 kg to 100 kg of various explosives;
- From 3,001 to 10,000 explosive tubes;
- From 10,000 to 30,000 meters of slow-burning fuse or explosive cord, etc.…
d3) Causing damage to weapons and military technical equipment exceeding the maximum level specified in Point d.2, Item 6 shall be considered as causing extremely serious consequences.
d4) In cases where damage is caused to different types of weapons and military technical equipment, each type not reaching the level specified in Point d.1, Item 6, it shall be considered as causing serious consequences if the total damage corresponds to the level specified in Point d.1, Item 6. For example, committing a crime causing damage to 2 rifles (66% of the minimum guidance level), 3 kg of explosives (30% of the minimum guidance level), and 300 explosive tubes (30% of the minimum guidance level) shall be considered as committing a crime causing serious consequences (total damage of all types is 126%, exceeding the minimum guidance level).
Using a similar calculation method to determine very serious consequences or extremely serious consequences in cases where damage is caused to different types of weapons and military technical equipment, each type not reaching the levels specified in Points d.2 or d.3, Item 6.
đ) For non-material damage, the specific consequences caused by the crime should be determined as serious, very serious, or extremely serious depending on the specific case of the crime. When assessing, attention should be paid to consequences such as adversely affecting the implementation of the Party's policies and the State's policies on national defense and security; the capability, strength, and readiness for combat of units; the performance of unit tasks; the reputation and honor of the Military; internal solidarity within the Military; relations between the Military and civilians, etc.…
7. When applying Article 322, Article 324, and Article 325 of the Criminal Code, attention should be paid to:
a) If those weapons and military technical equipment are not lost or damaged, or although they are lost or damaged but have not reached the level considered as serious consequences, then apply Point b, Clause 2 of Article 322 or Point b, Clause 2 of Article 324 or Point c, Clause 2 of Article 325 of the Criminal Code.
b) If the weapons or military technical equipment are lost or damaged to the extent considered serious consequences, then apply both point b and point d clause 2 Article 322 or point b and point d clause 2 Article 324 or point b and point d clause 2 Article 325 of the Penal Code;
c) If the weapons or military technical equipment are lost or damaged to the extent considered very serious consequences, then apply both point b and point d clause 2 Article 322 or point b and point d clause 2 Article 324 or point c and point d clause 2 Article 325 of the Penal Code;
d) If the weapons or military technical equipment are lost or damaged to the extent considered extremely serious consequences, then apply clause 3 Article 322 or clause 3 Article 324 or clause 3 Article 325 of the Penal Code;
đ) In cases where before surrendering to the enemy or abandoning combat positions or deserting, the offender destroys weapons or military technical equipment, then point b clause 2 Article 322 or point b clause 2 Article 324 or point c clause 2 Article 325 of the Penal Code shall not be applied to the offender. However, in this case, the offender must also be held criminally responsible for the crime of destroying military weapons or military technical equipment as stipulated in Article 334 of the Penal Code;
e) "Important documents" are understood as secret military work documents or although they are not secret military work documents but significantly affect the completion of unit tasks. Examples include organizational, staffing, equipment, and work plan documents of the unit, documents ensuring the operation of the unit, etc.;…
g) In cases where the offender hands over to the enemy or carries away or discards secret military work documents and exposes military work secrets, or subsequently appropriates, buys, destroys, or loses these documents, in addition to applying 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 must also be held criminally responsible for the corresponding crimes as stipulated in Article 327 or Article 328 of the Penal Code;
h) In cases where before surrendering to the enemy or abandoning combat positions or deserting, the offender destroys secret military work documents, then point b clause 2 Article 322 or point b clause 2 Article 324 or point c clause 2 Article 325 of the Penal Code shall not be applied to the offender. However, in this case, the offender must also be held criminally responsible for the crime of destroying secret military work documents as stipulated in Article 327 of the Penal Code;
III. REGARDING SOME SPECIFIC CRIMES
1. Regarding the crime of desertion (Article 325 of the Penal Code)
a) Criminal responsibility for the crime of desertion shall only be pursued against those who leave their units to avoid obligations under one of the following circumstances:
a1) Has been disciplined for leaving the Military to avoid obligations and still violates. Considered to have been disciplined in the following cases:
- Has been disciplined according to one of the forms prescribed in the Regulation on Military Unit Management regarding the act of desertion and the period has not yet expired to be considered as not having been disciplined. For cases where there is no specified period in the disciplinary decision, the person is considered not disciplined, the period is one year from the date of the disciplinary decision. If the decision does not clearly state the reason, before initiating the case, the investigative authority must verify the specific reason for the disciplinary decision. This verification must be documented as the basis for considering whether to pursue criminal responsibility or not;
- Has been administratively punished for the act of desertion according to one of the forms prescribed in the administrative penalty regulations in the field of national defense and the period has not yet expired to be considered as not having been administratively punished;
a2) Causing serious consequences as guided at point c item 6 Part II of this Circular.
b) When applying clause 2 Article 325 of the Penal Code, note:
b1) If the offender is an officer or commander committing the act of leaving the Military to avoid military obligations under one of the circumstances guided at point a item 1 Part III of this Circular, then criminal responsibility shall be pursued according to point a clause 2 Article 325 of the Penal Code.
b2) The circumstance "inducing others to commit a crime" as stipulated at point b clause 2 Article 325 of the Penal Code means inducing, persuading, bribing, or threatening… leading to other soldiers deserting together.
2. Regarding the crimes of insulting or assaulting superiors or higher-ranking officers (Article 319 of the Penal Code); the crime of insulting or using degrading treatment against subordinates (Article 320 of the Penal Code); the crime of insulting or assaulting comrades (Article 321 of the Penal Code)
a) Besides the criteria for superior, subordinate, and comrade relationships already guided in items 2 and 3 of Part II of this Joint Circular, it is necessary to consider whether the criminal act was committed within a working relationship.
A working relationship is the relationship between soldiers in performing assigned tasks. The relationship here is the command-subordinate relationship (administrative military management relationship) among soldiers in the same unit or the coordination relationship between soldiers of different units to perform assigned tasks.
In all cases, if a soldier commits acts of insulting, assaulting, or using degrading treatment against another soldier due to personal motives rather than a working relationship, they will be held criminally responsible for the crime of insulting or assaulting comrades (Article 321) regardless of the rank or position of the offender and the victim.
If a soldier commits acts of insulting, assaulting, or using degrading treatment against another soldier within a working relationship, criminal responsibility will be pursued based on the status of the offender and the victim in that relationship; specifically:
- If the offender is subordinate to the victim, criminal responsibility will be pursued for the crime of insulting or assaulting a superior or higher-ranking officer (Article 319 of the Penal Code);
- If the offender is a superior or higher-ranking officer to the victim, they will be held criminally responsible for the crime of insulting or using degrading treatment against a subordinate (Article 320 of the Penal Code).
b) The act of humiliation only constitutes a criminal offense in cases of seriously insulting the dignity and honor of superiors (Article 319 of the Criminal Code), subordinates (Article 320 of the Criminal Code), or comrades (Article 321 of the Criminal Code). Acts of insulting dignity and honor shall be considered serious in the following circumstances:
- Persistent and prolonged acts of insult;
- Acts of insult continue despite being stopped by others;
- Multiple people insulting one person;
- Insulting multiple people;
- Insults causing harm to health or leaving negative consequences affecting the reputation and honor of the victim;
- Insults through despicable and contemptuous means that show extreme disregard for the dignity and honor of the victim, etc.….
c) Acts of torture, assault resulting in death or causing injury and harm to the health of others to the extent of constituting a crime of infringing upon the health of others shall be prosecuted under the corresponding offenses of infringing upon life and health as stipulated in Chapter XII "Crimes Infringing Upon Life, Health, Dignity, and Honor of People" of the Criminal Code without prosecuting the corresponding offenses stipulated in Articles 319, 320, or 321 of the Criminal Code.
3. Application of Article 336, Clause 4 of the Criminal Code on the offense of violating policies towards war invalids and martyrs.
The object of appropriation prescribed in Article 336, Clause 4 of the Criminal Code is only the relics of martyrs, i.e., items left behind by martyrs which may not have significant value or financial worth but hold spiritual significance to their identity (such as photographs, medals, diaries, etc.).…)
Acts of appropriating the relics of martyrs with financial value shall be prosecuted for the offense of appropriating property according to the provisions of Chapter XIV of the Criminal Code. In such cases, acts of openly appropriating, stealing, or misusing trust to appropriate assets valued below VND 500,000 also constitute serious consequences (considering not just the financial value but also non-material consequences) for criminal prosecution.
4. Regarding the offense of violating regulations on the use of military weapons (Article 333 of the Criminal Code)
Using military weapons referred to in this Article is an act aimed at utilizing the functions of military weapons for certain purposes.
The offense of violating regulations on the use of weapons is the act of a person equipped with military weapons using them improperly for the purpose of equipping, causing serious consequences.
It is necessary to distinguish between the offense of violating regulations on the use of military weapons and the offense of negligently causing injury or damaging the health of others due to violation of administrative rules (Article 109 of the Criminal Code), the offense of negligently causing death due to violation of administrative rules (Article 99 of the Criminal Code), and the offense of negligently causing serious damage to property (Article 145 of the Criminal Code); specifically:
- A person who uses military weapons equipped to shoot birds, catch fish, or create noise… causing serious consequences shall be prosecuted for the offense of violating regulations on the use of military weapons (Article 333 of the Criminal Code);
- A person who plays with military weapons, fails to inspect the weapon before cleaning it, or is careless in storing weapons leading to an explosion (such as failing to lock the safety mechanism when tripping over, accidentally placing a hand on the trigger…) causing serious consequences shall be prosecuted for the offense of intentionally causing injury or damaging the health of others due to violation of administrative rules (Article 109 of the Criminal Code); negligently causing death due to violation of administrative rules (Article 99 of the Criminal Code) or negligently causing serious damage to property (Article 145 of the Criminal Code) depending on the damage incurred.
5. Regarding the offense of losing or negligently damaging military weapons and military technical equipment (Article 335 of the Criminal Code)
When applying Article 335 of the Criminal Code, it should be noted that the act of a person entrusted with management (such as a military armament warehouse custodian) or equipped with military weapons and technical equipment causing loss or damage resulting in serious consequences constitutes this offense. The consequences here include both the loss or damage of military weapons and technical equipment and other losses caused by the loss or damage of these weapons.
IV. EFFECTIVENESS OF THE JOINT CIRCULAR
1. This joint circular takes effect fifteen days from the date of publication in the Official Gazette and replaces previous guiding documents on implementing the provisions of the 1985 Criminal Code regarding offenses infringing upon the duties and responsibilities of military personnel.
2. During implementation, if there are any difficulties, they should be reported to the Supreme People's Court, the Supreme People's Procuracy, the Ministry of Justice, the Ministry of Public Security, and the Ministry of National Defense for timely explanation or supplementary guidance./.
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Bản đồ quan hệ
01/2003/TTLT-TANDTC-VKSNDTC-BCA-BTP-BQP
Joint Circular No. 01/2003/TTLT-TANDTC-VKSNDTC-BCA-BTP-BQP guiding the application of certain provisions in Chapter XXIII "Crimes Violating Duties and Responsibilities of Military Personnel" of the Criminal Code of 1999
In effect
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Văn bản này có sẵn ở các ngôn ngữ sau:
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