Nghị quyết 03/2022/NQ-HĐTP hướng dẫn áp dụng quy định tại Điều 304, 305, 306, 307 và 308 của Bộ luật Hình sự

THE COUNCIL OF JUDGES THE SUPREME PEOPLE’S COURT -------	SOCIALIST REPUBLIC OF VIETNAM Independence - Freedom – Happiness ---------------
No. 03/2022/NQ-HDTP	Hanoi, September 09, 2022

 

RESOLUTION

ON GUIDELINES FOR CERTAIN REGULATIONS SPECIFIED IN ARTICLES 304, 305, 306, 307 AND 308 OF THE CRIMINAL CODE

THE COUNCIL OF JUDGES OF THE SUPREME PEOPLE’S COURT

Pursuant to the Law on Organization of People’s Court dated November 24, 2014;

For proper and consistent application of certain regulations specified in Articles 304, 305, 306, 307 and 308 of the Criminal Code No. 100/2015/QH13, amended in the Law No. 12/2017/QH14;

With the opinions of the Chief Procurator of the Supreme People’s Procuracy and the Minister of Justice.

HEREBY RESOLVES:

Article 1. Scope

This Resolution provides guidelines for applications of certain Articles 304, 305, 306, 307 and 308 of the Criminal Code No. 100/2015/QH13, amended in the Law No. 12/2017/QH14 (hereinafter referred to as “the Criminal Code”) on crimes related to weapons, explosives, combat gears and technical vehicles.

Article 2. Terms

1. “weapons" mean equipment, vehicles or combination of vehicles manufactured to be capable of causing damage, endangering human life and health, or destroying material structures as prescribed in Clause 1 Article 3 of the Law on Management and Use of Weapons, Explosives and Combat Gears. 

2. “military weapons" mean equipment, vehicles or combination of vehicles prescribed in Clause 2 and Clause 6 Article 3 of the Law on Management and Use of Weapons, Explosives and Combat Gears. 

3. “Military vehicles" mean vehicles, ammunition and other vehicles designed, manufactured and equipped for the armed forces in service of training and combat.

4. “explosives” mean materials specified in Clause 7 Article 3 of the Law on Management and Use of Weapons, Explosives and Combat Gears.

5. “hunting gun” means a gun specified in Clause 3 Article 3 of the Law on Management and Use of Weapons, Explosives and Combat Gears.

6. “cold weapons” mean weapons specified in Clause 4 Article 3 of the Law on Management and Use of Weapons, Explosives and Combat Gears.

7. “sport weapons” mean weapons specified in Clause 5 Article 3 of the Law on Management and Use of Weapons, Explosives and Combat Gears.

8. “combat gears" mean vehicles and police animals prescribed in Clause 11 Article 3 of the Law on Management and Use of Weapons, Explosives and Combat Gears. 

9. “weapon with the same feature and effect as hunting guns, sport weapons and combat gears" means a weapon which is handcrafted or industrially manufactured, is not manufactured according to the technical standard and design of the legal manufacturer, is capable for causing damage, endangering human life and health and destroying material structures like hunting guns, sport weapons and combat gears.

Article 3. Circumstances defined as the basis for determination of a crime

1. “illegal manufacture of a military weapon or military vehicle" provided for in clause 1 Article 304 of the Criminal Code refers to a case where the offender completely renewed the military weapon or military vehicle or assembled its components/parts to be used according to their functions without any permission of the competent authority.

Another case which is also considered illegal manufacture of military weapons and military vehicles is that manufacturers of the armed forces and other manufacturers licensed by competent state authorities which are permitted to manufacture and assemble military weapons and military vehicles (prescribed in the list) manufactured and assembled other military weapons and military vehicles (not prescribed in the list) or manufactured more than the permitted quantity, except for the case that the manufacturer conducted a research on improvement of manufacture of new weapons according to the scientific topics approved by competent authorities.

2. “illegal storage of a military weapon or military vehicle" provided for in clause 1 Article 304 of the Criminal Code refers to a case where the offender stored the military weapon or military vehicle without any permission of the competent authority. The military weapon or military vehicle may be stored in a place of residence, a place of work, carried in person, in luggage or any other places that the offender chose.

Another case which is also considered as illegal storage of a military weapon or military vehicle is that the military weapon or military vehicle is obtained in any form (such as giving, donating, sending, borrowing, lending, renting, leasing, pledging, mortgaging, digging, collecting) without any declaration or submission to the competent authority.

3. “illegal transport of a military weapon or military vehicle" provided for in clause 1 Article 304 of the Criminal Code refers to an act that the offender transported the military weapon or military vehicle from one place/position/person/nation to another, or other acts of movement thereof without any order of the competent authority or license for transport of the competent state authority by any vehicle (except appropriation of such weapon/vehicle) for the purpose other than trade thereof.

4. “illegal use of a military weapon or military vehicle" provided for in clause 1 Article 304 of the Criminal Code refers to a case where the offender used the military weapon or military vehicle without any license or permission of the competent person/state authority to bring into play effects of such weapon or vehicle.

 For example: acts of using a military gun include: cock the gun and pull the trigger; acts of using a grenade include: pull the pin out of the grenade and pull the primer of the grenade.

5. “illegal trade of a military weapon or military vehicle" provided for in clause 1 Article 304 of the Criminal Code refers to a case where the offender traded without any license or permission of the competent state authority.

6. “appropriation of a military weapon or military vehicle” provided for in clause 1 Article 304 of the Criminal Code refers to a case where the offender robbed, openly appropriated, embezzled, defrauded to appropriate, abused trust to appropriate or other acts of appropriation.

Another case which is also considered as appropriation of military weapons or military vehicles is that servicemen, employees, defense workers and others who are equipped with military weapons and military vehicles to perform their duties during their working period until being demobilized, retired or transferred to another job and are no longer allowed to use such military weapons and military vehicles still intentionally fail to hand them over in accordance with the State's regulations.

7. “illegal manufacture of an explosive" provided for in clause 1 Article 305 of the Criminal Code refers to a case where the offender processed or mixed to create an explosive without any permission of the competent person/authority.

Another case which is also considered as illegal manufacture of explosives is that establishments and enterprises whose manufacture of explosives is permitted by competent authorities manufactured other explosives outside the list or manufactured more than the permitted quantity.  Except for several special cases to be approved by the competent persons/authorities.

8. For “illegal storage, transport, use, trade or appropriation of an explosive" provided for in clause 1 Article 305 and “illegal storage, transport, use, trade or appropriation of a hunting gun, sport weapon or combat gear” provided for in clause 1 Article 306 of the Criminal Code, the guidelines provided in clauses 2, 3, 4, 5 and 6 of this Article shall be applied.  

9. “Violation of regulations on management of manufacture, repair, equipment, use, preservation, storage, transportation, trade or destruction of a military weapon, hunting gun, sport weapon, explosive or combat gear” provided for in clause 1 Article 307 of the Criminal Code refers to a case that the offender failed to implement or improperly implemented the management of manufacture, repair, equipment, use, preservation, storage, transportation, trade or destruction of such military weapon, hunting gun, sport weapon, explosive or combat gear according to regulations of the Law on Management and Use of Weapons, Explosives and Combat Gears and other relative legislative documents.

Article 4. Circumstances as the basis for determination of sentence bracket

1. “illegal items with great quantities or great values” provided for in point g clause 2 Article 304 of the Criminal Code:

a) Handguns, rifles, submachine guns: from 3 to 10 guns;

b) Infantry cartridges sized 11.43 mm or less: from 301 to 1.000 rounds;

c) 12,7mm to 25mm caliber antiaircraft machine-gun ammunition: from 201 to 600 rounds;

d) Bombs, mines, grenades: from 06 to 20 explosive rounds;

dd) Light machine guns, anti-tank guns, grenade launchers: from 01 to 05 guns;

e) Heavy machine guns, mortars, DKZ guns, anti-aircraft machine guns, personal anti-tank missiles: from 01 to 02 guns;

g) Mortar shells, artillery shells: from 01 to 10 shells;

h) Naval mines: from 01 to 02 mines;

i) Illegal items with a value of from VND 10.000.000 to less than VND 200.000.000;

k) Other illegal items with great quantities under regulations of law.

2. “illegal items with very great quantities or very great values” provided for in point dd clause 3 Article 304 of the Criminal Code:

a) Handguns, rifles, submachine guns: from 11 to 30 guns;

b) Infantry cartridges sized 11,43 mm or less: from 1.001 to 3.000 rounds;

c) 12,7mm to 25mm caliber antiaircraft machine-gun ammunition: from 601 to 2.000 rounds;

d) Bombs, mines, grenades: from 21 to 50 explosive rounds;

dd) Light machine guns, anti-tank guns, grenade launchers: from 06 to 30 guns;

e) Heavy machine guns, mortars, DKZ guns, anti-aircraft machine guns, personal anti-tank missiles: from 03 to 20 guns;

g) Mortar shells, artillery shells: from 11 to 30 shells;

h) Naval mines: from 03 to 10 mines;

i) Torpedoes: from 01 to 02 torpedoes;

k) Ground artillery, anti-aircraft artillery: from 01 to 02 artillery pieces;

l) Illegal items with a value of from VND 200.000.000 to less than VND 1.000.000.000;

m) Other illegal items with very great quantities under regulations of law.

3. “illegal items with vast quantities or tremendous values” provided for in point dd clause 4 Article 304 of the Criminal Code:

a) Handguns, rifles, submachine guns: from 31 guns or more;

b) Infantry cartridges sized 11,43 mm or less: from 3.001 rounds or more;

c) 12,7mm to 25mm caliber antiaircraft machine-gun ammunition: from 2.001 rounds or more;

d) Bombs, mines, grenades: from 51 explosive rounds or more;

dd) Light machine guns, anti-tank guns, grenade launchers: from 31 guns or more;

e) Heavy machine guns, mortars, DKZ guns, anti-aircraft machine guns, personal anti-tank missiles: from 21 guns or more;

g) Mortar shells, artillery shells: from 31 shells or more;

h) Naval mines: from 11 mines or more;

i) Torpedoes: from 03 torpedoes or more;

k) Ground artillery, anti-aircraft artillery: from 03 artillery pieces or more;

l) Jet fighters, armed helicopters: from 01 craft or more;

m) Tanks, armoured fighting vehicles: from 01 vehicle or more;

n) Warships, submarines: from 01 vessel or more;

o) Missiles: from 01 rocket or more;

p) Illegal items with a value of VND 1.000.000.000 or more;

q) Other illegal items with vast quantities under regulations of law.

4. “Types of blasting accessories in large quantities” provided for in point c clause 2 Article 305 of the Criminal Code:

a) Safety fuses, detonating cords: from 3.000 meters to under 15.000 meters;

b) Detonators, primers: from 1.001 to 10.000 pieces;

c) Other blasting accessories with great quantities under regulations of law.

5. “Types of blasting accessories in very large quantities” provided for in point b clause 3 Article 305 of the Criminal Code:

a) Safety fuse, detonating cord: from 15.000 meters to under 50.000 meters;

b) Detonators, primers: from 10.001 to 30.000 pieces;

c) Other blasting accessories in very large quantities under regulations of law.

6. “Types of blasting accessories with enormous quantities” provided for in point b clause 4 Article 305 of the Criminal Code:

a) Safety fuse, detonating cord: 50.000 meters or more;

b) Detonators, primers: 30.001 pieces or more;

c) Other blasting accessories with enormous quantities under regulations of law.

7. “illegal items with large quantities” provided for in point b clause 2 Article 306 of the Criminal Code:

a) From 11 to 100 units of hunting guns, cold weapons, sport weapons, combat gears or weapons which are not put on the list promulgated by a state competent authority

k) Other illegal items with great quantity under regulations of law. 

8. “illegal items with very large quantities or enormous values” provided for in point a clause 3 Article 306 of the Criminal Code:

a) 101 units of hunting guns, cold weapons, sport weapons, combat gears or weapons which are not put on the list promulgated by a state competent authority but have the same characteristics and functions as military weapons or more;

b) Other illegal items with very large quantities or enormous quantities under regulations of law.

9. “transporting and trading across the border" provided for in clause 2 of Articles 302, 305 and 306 of the Criminal Code refers to a case where the offender has carried or are carrying their military weapons, military vehicles, explosives, hunting guns, cold weapons, sport weapons or combat gears out of the national borders on land, at sea, in the air and in the ground of the Socialist Republic of Vietnam or vice versa.

It will also be considered as “transporting and trading across the border" if procedures for customs clearance for military weapons, military vehicles, explosives, hunting guns, cold weapons, sport weapons or combat gears have been completed.

Article 5.  Criminal prosecution in cases where there is a real possibility of causing damage to the life, health and property of another person as prescribed in Clause 4 Article 307 of the Criminal Code

Whoever commits one of the violations specified in Clause 9 Article 3 hereof in a manner that might lead to consequences prescribed in Clause 3 Article 307 of the Criminal Code or without being stopped by agencies, organizations or individuals, he/she shall be prosecuted according to regulations in clause 4 Article 307 of the Criminal Code.

Article 6. Criminal prosecution in a number of specific cases

1. In case the offender illegally manufactured, stored, transported, used, traded or  appropriated military weapons, military vehicles, explosives, hunting guns, cold weapons, sport weapons or combat gears, thereby causing fatal consequences, harming the health of others, causing serious losses of assets shall only be prosecuted according to Articles 2304, 205 and 306 of the Criminal Code with  the circumstances as the basis for determination of the corresponding sentence bracket but shall not be prosecuted for crimes prescribed in Articles 128, 138 and 180 of the Criminal Code.

2. In case users of military weapons and military vehicles are licensed to use or are permitted to use them by competent persons or agencies, if they are people prescribed in Article 392 of the Criminal Code and commit violations against regulations on use of weapons causing serious consequences, they shall be prosecuted according to Article 412 of the Criminal Code; if they are not the people prescribed in Article 392 of the Criminal Code, they shall be prosecuted according to Article 128 of the Criminal Code but shall not be prosecuted according to Article 304 of the Criminal Code.

In case people who are equipped with military weapons have illegally used the equipped weapons to commit crimes or other people who are not equipped with military weapons have used military weapons to commit crimes, they shall face criminal prosecution according to Article 304 of the Criminal Code and the corresponding Articles of the Criminal Code.  If the use of weapons is a factor that determines the sentence bracket, corresponding clauses of the Criminal Code shall be applied during criminal prosecution.

3. Whoever commits an offence specified in Articles 304, 305 and 306 of the Criminal Code for the purpose of preparation of tools and vehicles for committing an offence specified in Articles 108, 109, 110, 111, 112, 114, 115, 116, 117, 118, 119, 120, 121, 123, 134, 168, 169, 207, 301, 302, 303 and 324 of the Criminal Code shall be prosecuted for both of the above crimes.

4. In case an offender has committed multiple different offences prescribed in Articles 304, 305 and 306 of the Criminal Code, on the basis of each specific case, the offender may be prosecuted for 01 crime or multiple separate crimes for each offence committed. When a penalty is decided, the Court shall apply Article 55 of the Criminal Code to consolidate a general penalty. To be specific:

a) If an offender has committed multiple offences that are strictly related to each other (one of such offences is a condition to commit another offence as well as a corollary to another offence) against one or multiple people, he/she shall be prosecuted for only one crime with the name of crime involving all offences that he/she had committed.

For example: A person manufacturing military weapons then storing and using them shall be prosecuted for "illegal manufacture, storage and use of military weapons".

b) If an offender commits multiple independent offences against different independent entities shall be prosecuted for multiple separate crimes for each independent offence that he/she had committed.

For example: A person storing 02 military guns and purchasing 05 grenades shall be prosecuted for "illegal storage of military weapons" and “illegal trade of military weapons”.

5. An offender intending to exchange or trade artificial military weapons, military vehicles, explosives, hunting guns, cold weapons, sport weapons or combat gears shall not be prosecuted according to Articles 304, 305 and 306 of the Criminal Code but he/she shall be prosecuted according to Articles 174 of the Criminal Code if the offence constitutes a crime.

6. Whoever had stored or transported military weapons, military vehicles, explosives, hunting guns, cold weapons, sport weapons or combat gears for a specific period before handed over them under mobilization of the local government shall be handled depending on each specific case as follows:

a) Whoever had stored or transported military weapons, military vehicles, explosives, hunting guns, cold weapons, sport weapons or combat gears according to Articles 63 and 67 of the Law on Management and Use of Weapons, Explosives and Combat Gears shall not be prosecuted;  

b) In case an offender illegally manufactured, stored, transported, used, traded or appropriated military weapons, military vehicles, explosives, hunting guns, cold weapons, sport weapons or combat gears related to other criminal offences shall be prosecuted according to regulations of the Criminal Code if the offence constitutes a crime.

7. The costs of illegal items shall not be included in losses caused by manufacture, storage, transport, use, trade or appropriation of military weapons and military vehicles, prescribed in Article 304 of the Criminal Code. In case an offender not only illegally manufactures, stores, transports, uses, trades or appropriates valuable military weapons and military vehicles but also causes losses of assets and the values of the illegal items and the losses are both above the minimum level that is subject to criminal prosecution, the following penalties shall be imposed:  

a) If values of illegal items and losses of assets all fall under the basic sentence bracket, the basic sentence bracket shall apply;

b) If values of illegal items and losses of assets all fall under varied sentence brackets, the higher sentence bracket shall apply;

c) If values of illegal items and losses of assets all fall under the same aggravating sentence bracket, both aggravating circumstances for sentence bracket shall apply.

8. Offences against manufacture, storage, transport, use, trade or appropriation of bombs and mines left after the war shall be handled as follows:

a) If parts (detonators, explosives) of booms and mines have not been disassembled and the results of the assessment conclude that the functions and effects of such military weapons are still intact, it shall be determined as an offence of illegal manufacture, storage, transport, use, trade or appropriation of military weapons and military vehicles according to Article 304 of the Criminal Code;

b) If parts (detonators, explosives) of booms and mines have been disassembled but the results of the assessment conclude that the functions and effects of such military weapons are still intact, it shall be determined as a crime of illegal manufacture, storage, transport, use, trade or appropriation of explosives according to Article 305 of the Criminal Code.

9. In case an offender illegally manufactures, stores, transports, uses, trades or appropriates explosives, blasting accessories, infantry cartridges, safety fuses and detonating cords with small quantities or values so danger to society is insignificant, he/she may be exempted from criminal prosecution, penalties or other measures.

Article 7. Effect

1. This Resolution is adopted on September 09, 2022 by the Council of Judges of the Supreme People's Court and it comes into force from November 01, 2022.

2. If offenders had been tried before the date on which this Resolution comes into force according to previous regulations and guidelines and applicable judgments, this Resolution shall not apply in the appeal according to procedures for reconsideration and review.

 

ON BEHALF OF. THE COUNCIL OF JUDGES CHIEF JUSTICE Nguyen Hoa Binh