Joint Circular No. 06/2008/TTLT-BCA-VKSNDTC-TANDTC guiding the prosecution of criminal responsibility for acts of producing, buying, selling, transporting, storing, and using illegal explosives and firecracker substances.

JOINT CIRCULAR

Guidelines on the prosecution of criminal responsibility for acts of producing, buying, selling, transporting, storing, and using illegal explosives and firecrackers

To ensure that the prosecution of criminal responsibility for acts of producing, buying, selling, transporting, storing, and using illegal explosives and firecrackers is accurate and consistent, the Ministry of Public Security, the Supreme Procuratorate, and the Supreme People's Court provide the following guidelines:

I. GENERAL ISSUES

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a) "Explosives" (regardless of origin or place of production) are products containing firecracker powder inside, which cause an explosion when subjected to external force;

b) "Firecracker powder" (regardless of origin or place of production) is a substance capable of causing a rapid and powerful chemical reaction, releasing heat, gas, and creating an explosion;

1. Explanation of Terms

c) The weight of explosives includes: the casing, firecracker powder, slow-burning fuse, launching tube, and other parts attached to the finished explosive product;

d) "Illegal use of explosives" as defined in this Circular includes: igniting, throwing, breaking, launching, spraying, or any other method that causes an explosion (hereinafter referred to as "igniting explosives").

2. Principles of Handling

a) Criminal offenses related to the production, purchase, sale, transportation, storage, and illegal use of explosives and firecracker powder, or the theft of such items, must be promptly detected and strictly punished according to the provisions of the Penal Code of 1999 (hereinafter referred to as the Penal Code);

b) In all cases, explosives, firecracker powder, and raw materials and tools used to produce explosives and firecracker powder must be confiscated. The discovery, seizure, and handling of evidence as explosives and firecracker powder must comply with the provisions of Article 75 and Article 76 of the Criminal Procedure Code of 2003;

c) For acts of producing, purchasing, selling, transporting, storing, and illegally using other types of fireworks (regardless of origin or place of production but included in the list of goods and services prohibited from trade as stipulated by the Government), they shall also be handled similarly to the acts of producing, purchasing, selling, transporting, storing, and illegally using explosives as guided in this Circular.

II. PROSECUTION OF CRIMINAL RESPONSIBILITY FOR ACTS OF IGNITING EXPLOSIVES

1. Any person who ignites explosives under any of the following circumstances shall be prosecuted for the crime of "disturbing public order" under Clause 1, Article 245 of the Penal Code:

a) Igniting explosives in public places, locations where meetings are taking place, or areas where large crowds gather;

b) Throwing ignited explosives onto roads, at people, at moving vehicles, from high places, or while riding in a vehicle;

c) Igniting explosives causing damage to the health or property of others, but the extent of damage does not reach the level requiring prosecution for another crime;

d) Igniting explosives in quantities equivalent to between 1 kg and less than 5 kg of finished explosives or between 0.1 kg and less than 0.5 kg of firecracker powder;

e) Igniting explosives in quantities less than 1 kg of finished explosives or less than 0.1 kg of firecracker powder, and having been administratively sanctioned for igniting explosives or convicted of this offense without having had their criminal record expunged, and then committing the offense again.

2. Any person who ignites explosives under any of the following circumstances shall be prosecuted under Clause 2, Article 245 of the Penal Code:

a) Having been previously convicted of the crime of "disturbing public order" as provided in Section 1, Part II of this Circular;

b) Inciting or encouraging children or multiple individuals to ignite explosives together;

c) Obstructing or assaulting those who intervene (including law enforcement officers, public order protectors, or others preventing the ignition of explosives);

d) Igniting explosives in quantities equivalent to 5 kg or more of finished explosives or 0.5 kg or more of firecracker powder.

3. Any person who ignites explosives causing serious harm to the lives, health, or property of others shall, in addition to being prosecuted for the crime of "disturbing public order" under Article 245 of the Penal Code, also be subject to prosecution for other crimes specified in this Code corresponding to the severity of the harm caused by the act of igniting explosives. For example, if igniting explosives results in injuries or damage to the health of others requiring criminal prosecution, the offender will be prosecuted both for the crime of "disturbing public order" under Article 245 of the Penal Code and for the crime of "intentionally causing injury or damaging the health of others" under Article 104 of the Penal Code.

III. PROSECUTION OF CRIMINAL RESPONSIBILITY FOR ACTS OF PRODUCING, PURCHASING, TRANSPORTING, AND STORING EXPLOSIVES AND FIRECRACKER POWDER

1. Regarding Offenses

a) Any person who produces or steals explosives; manufactures, stores, transports, uses, purchases, or sells illegally, or steals firecracker powder, shall be prosecuted for the crime of "illegally manufacturing, storing, transporting, using, purchasing, or selling explosives or stealing explosives" under Article 232 of the Penal Code;

b) Any person who illegally trades across borders in explosives shall be prosecuted for the crime of "smuggling" under Article 153 of the Penal Code;

c) Any person who illegally transports across borders explosives shall be prosecuted for the crime of "illegally transporting goods across borders" under Article 154 of the Penal Code;

d) Any person who engages in the illegal purchase, sale, or transport of explosives within the country for the purpose of trading shall be prosecuted for the crime of "trading in prohibited goods" under Article 155 of the Penal Code.

2. Regarding the Quantity of Illicit Items as Basis for Prosecution

2.1. Any person who produces or steals explosives in quantities from 2 kg to less than 30 kg; manufactures, stores, transports, uses, purchases, or sells illegally, or steals firecracker powder in quantities from 1 kg to less than 15 kg, or less than these quantities, but has been administratively sanctioned or caused serious consequences, shall be prosecuted under Clause 1, Article 232 of the Penal Code; if transported or traded illegally across borders, they shall be prosecuted under Point c, Clause 2, Article 232 of the Penal Code.

2. Regarding the quantity of illegal items serving as grounds for pursuing criminal responsibility

2.1. Any person who produces or appropriates explosive fireworks in quantities from 2 kg to less than 30 kg; manufactures, stores, transports, uses, illegally trades in or appropriates explosive firework substances in quantities from 1 kg to less than 15 kg or below that amount, but has been administratively sanctioned or caused serious consequences, shall be pursued for criminal responsibility under Clause 1, Article 232 of the Penal Code; if transporting or illegally trading across borders, they shall be pursued for criminal responsibility under Point c, Clause 2, Article 232 of the Penal Code.

2. Any person who produces or appropriates explosive fireworks; manufactures, stores, transports, uses, buys, or sells illegally or appropriates explosive firework substances in quantities below those specified shall be criminally liable under Clauses 2, 3, and 4 of Article 232 of the Penal Code accordingly.

a) Explosive fireworks in quantities from 30 kg to less than 90 kg; explosive firework substances in quantities from 15 kg to less than 75 kg (Clause 2 of Article 232 of the Penal Code).

b) Explosive fireworks in quantities from 90 kg to less than 300 kg; explosive firework substances in quantities from 75 kg to less than 200 kg (Clause 3 of Article 232 of the Penal Code).

c) Explosive fireworks in quantities of 300 kg or more; explosive firework substances in quantities of 200 kg or more (Clause 4 of Article 232 of the Penal Code).

2. Any person who buys, transports, or stores illegally explosive fireworks in quantities from 10 kg to less than 50 kg (considered a large quantity) or less than that amount but has been administratively punished or caused serious consequences shall be criminally liable under Clause 1 of Article 153, Article 154, or Article 155 of the Penal Code accordingly.

2. Any person who buys, transports, or stores illegally explosive fireworks in quantities from 50 kg to less than 150 kg (considered a very large quantity) shall be criminally liable under Clause 2 of Article 153, Article 154, or Article 155 of the Penal Code accordingly.

2. Any person who buys, transports, or stores illegally explosive fireworks in quantities of 150 kg or more (considered an exceptionally large quantity) shall be criminally liable under Clause 3 of Article 153, Article 154, or Article 155 of the Penal Code accordingly.

2. If a person commits multiple offenses stipulated in one of Articles 153, 154, 155, and 232 of the Penal Code or simultaneously commits multiple offenses stipulated in different articles (for example, committing an offense stipulated in Article 232 while also committing an offense stipulated in Article 153 or committing all four offenses stipulated in Articles 153, 154, 155, and 232 of the Penal Code), they must be sentenced with the highest penalty within the prescribed sentencing range for each offense.

EFFECTIVE DATE OF IMPLEMENTATION

1. This Circular takes effect fifteen days after its publication in the Official Gazette; previous directives issued by the Ministry of Public Security, the Supreme People's Procuracy, and the Supreme People's Court that conflict with this Circular are hereby abolished.

2. All levels of public security agencies, procuracies, and courts must closely cooperate in investigation, prosecution, and trial to strictly and promptly handle criminal acts related to illegal production, buying, transporting, storing, using, or appropriating explosive fireworks and explosive firework substances according to the provisions of the Penal Code and the guidelines set forth in this Circular.

3. For cases currently under investigation, prosecution, or trial involving criminal acts related to illegal production, buying, transporting, storing, or using explosive fireworks and explosive firework substances, or appropriating explosive fireworks and explosive firework substances, this Circular shall apply.

4. For cases that have been convicted based on previous guiding documents regarding criminal acts related to illegal production, buying, transporting, storing, or using explosive fireworks and explosive firework substances, or appropriating explosive fireworks and explosive firework substances which have become legally effective, these cases will not be appealed based on the guidelines in this Circular through the cassation or retrial procedures unless there are other grounds for appeal.

5. During implementation, if any issues arise requiring clarification or supplementary guidance, please report to the Ministry of Public Security, the Supreme People's Procuracy, and the Supreme People's Court for timely clarification or supplementary guidance.