Chương XII Bộ luật Tố tụng Hình sự 2003: Khám xét, thu giữ, tạm giữ, kê biên tài sản

Chapter XII: SEARCH, FORFEITURE, SEIZURE, DISTRAINMENT OF PROPERTY

Article 140.- Grounds for body search, search of residences, working places, premises, objects, correspondence, telegraphs, postal parcels and matters

1. Body search, search of residences, working places and premises shall be conducted only when there are grounds to judge that on the bodies, in the residences, working places and/or premises of persons there are instruments and means of offense commission, objects and property acquired from offense commission or other objects and documents related to the cases.

Search of residences, working places or premises shall also be conducted in case of necessity to detect wanted persons.

2. In case of necessity to collect documents and objects related to the cases, correspondence, telegraphs, postal parcels and matters may be searched.

Article 141.- Competence to issue search warrants

1. The persons defined in Clause 1, Article 80 of this Code shall have the right to issue search warrants in all cases. Search warrants of the persons defined at Point d, Clause 1, Article 80 of this Code must be approved by the procuracies of the same level before they are executed.

2. In case of urgency, the persons defined in Clause 2, Article 81 of this Code shall have the right to issue search warrants. Within 24 hours after the completion of the search, the search warrant issuers must notify in writing the procuracies of the same level thereof.

Article 142.- Body search

1. To start a body search, the search warrant must be read and handed to the to be-searched person for reading; the to be-searched person and other persons present shall be informed of their rights and obligations.

The persons conducting the search must request the to be-searched persons to give out objects and documents related to the cases; if the to be-searched persons disobey, they shall be searched.

2. The search of a person must be conducted by a person of the same sex and to the witness of a person also of the same sex.

3. Body search may be conducted without a search warrant in case of arrest or when there are grounds to confirm that the person present at the searched place hides on his/her body objects and documents required to be seized.

Article 143.- Search of residences, working places, premises

1. Search of residences, working places or premises shall be conducted in accordance with the provisions of Articles 140, 141 and 142 of this Code.

2. Search of residences or premises must be conducted in the presence of the owners or their families’ adult members, the representatives of the commune, ward or township administrations and neighbors as witnesses; in cases where the involved persons and their families’ members are deliberately absent, have escaped or have been away for a long time while the search cannot be delayed, the search must be witnessed by the local administrations’ representatives and two neighbors.

3. Search of residences must not be conducted at night, except where it cannot be delayed, provided that the reasons therefor must be clearly stated in the minutes.

4. Search of working places must be conducted in the presence of such persons, except where it cannot be delayed, provided that the reason therefor must be clearly stated in the minutes.

Search of working places of persons must be witnessed by the representatives of the agencies or organizations where such persons work.

5. When the search of residences, working places or premises is taking place, the persons present must neither leave the searched places without permission nor contact, discuss with one another or with other persons until the search completes.

Article 144.- Forfeiture of correspondence, telegraphs, postal parcels and matters at post offices

In case of necessity to forfeit correspondence, telegraphs, postal parcels and matters at post offices, the investigating bodies shall issue forfeiture warrants. These warrants must be approved by the procuracies of the same level before they are executed, except for cases where the execution thereof cannot be delayed, provided that the reasons therefor must be clearly stated in the minutes and the forfeiture, once completed, be immediately notified to the procuracies of the same level.

Before effecting the forfeiture, the executors of forfeiture warrants must notify such to the persons in charge of the post offices concerned. The persons in charge of the post offices concerned must assist the executors of seizure warrants in fulfilling their tasks.

The forfeiture of correspondence, telegraphs, postal parcels and matters must be witnessed by the representatives of the post offices, who shall sign for certification the minutes thereof.

The forfeiture warrant-issuing bodies must notify the persons having the to be forfeited correspondence, telegraphs, postal parcels and/or matters of the forfeiture warrants. If such notification will impede the investigation, immediately after such impediment no longer exists, the forfeiture warrant-issuing bodies must make such notification.

Article 145.- Seizure of objects and documents during a search

While conducting search, investigators may seize objects which are exhibits as well as documents directly related to the cases. For objects falling into the categories banned from storage or circulation, they must be forfeited and immediately delivered to competent management bodies. In case of necessity to seal objects up, such sealing must be conducted in the presence of the owners of such objects or their families’ representatives, the administration’s representatives as well as witnesses.

The seizure of objects and documents during a search must be recorded in a minutes. Seizure minutes must be made in four copies, one of which to be handed to the owner of the objects and/or documents, one to be put in the case files; one to be sent to the procuracy of the same level, and one to the agency managing the seized objects and/or documents.

Article 146.- Distrainment of property

1. Distrainment of property shall only apply to the accused or defendants charged with offenses which, as prescribed by the Penal Code, may be subject to property confiscation or fine penalty as well as to persons liable to pay damage compensation according to law provisions.

The competent persons defined in Clause 1, Article 80 of this Code shall have the right to issue property distrainment warrants. Distrainment warrants of persons defined at Point d, Clause 1, Article 80 of this Code must be immediately notified to the procuracies of the same level before they are executed.

2. Distrainment shall be made only of a portion of property corresponding to the amount likely to be confiscated, to the pecuniary fine or the damage compensation.

Distrained property shall be assigned to their owners or their relatives for preservation. If the persons assigned to preserve such property commit acts of consuming, transferring, fraudulently swapping, concealing or destroying the distrained property, they shall bear penal liability under the provisions of Article 310 of the Penal Code.

3. Property distrainment must be witnessed by the involved persons or their families’ adult members, representatives of the commune, ward or township administrations and neighbors. The distraining persons must make the minutes, clearly stating the name and condition of each distrained property item. Such minutes must be made according to Articles 95 and 125 of this Code, read to the involved persons and other present persons, and signed by these persons. Any complaints of the involved persons shall be recorded in the minutes, with the signatures for certification of such persons and the distraining persons.

A distrainment minutes shall be made in three copies, one to be handed to the involved person immediately after the distrainment is completed, one to be sent to the procuracy of the same level, and one to be put in the case file.

4. When deeming that distrainment is no longer necessary, the competent persons defined in Clause 1, Article 80 of this Code must issue in time decisions to cancel distrainment warrants.

Article 147.- Responsibility to preserve objects, documents, correspondence, telegraphs, postal parcels and/or matters which are forfeited, seized or sealed up

Objects, documents, correspondence, telegraphs, postal parcels and/or matters which are forfeited, seized or sealed up under the provisions of Articles 75, 144 and 145 of this Code must be preserved intact.

If persons assigned to preserve property break up seals, consume, transfer, fraudulently swap or destroy such property, they shall bear penal liability under Article 310 of the Penal Code.

Article 148.- Minutes of search, forfeiture, seizure of objects, documents, correspondence, telegraphs, postal parcels and matters

The search, forfeiture or seizure of objects, documents, telegraphs, postal parcels and/or matters must be recorded in the minutes prescribed in Articles 95 and 125 of this Code.

Article 149.- Responsibilities of issuers and executors of warrants to search, distrain property, forfeit or seize objects, documents, correspon-dence, telegraphs, postal parcels and matters

Persons who have illegally issued and persons who have illegally executed warrants to search or distrain property, forfeiture or seize objects, documents, correspondence, telegraphs, postal parcels and/or matters shall, depending on the seriousness of their violations, be disciplined or examined for penal liability.