Nghị quyết 01/2010/NQ-HĐTP của Hội đồng Thẩm phán Toà án Nhân dân tối cao hướng dẫn áp dụng một số quy định tại Điều 248 và Điều 249 của Bộ Luật hình sự

RESOLUTION

GUIDING THE APPLICATION OF PROVISIONS OF ARTICLES 248 AND 249 OF THE PENAL CODE

THE JUDGES COUNCIL OF THE SUPREME PEOPLES COURT

Pursuant to the Law on Organization of People s Courts;

In order to correctly and consistently apply provisions of the Penal Code;

After consulting the Director of the Supreme People s Procuracy and the Minister of Justice,

RESOLVES

Article 1.Regarding provisions of Article 248 of the Penal Code

1. Illegal gambling means gambling acts in whatever form for the purpose of earning winnings in cash or in kind without permission of a competent state agency or with permission of a competent state agency but at variance with the granted license.

2. When identifying criminal liability of a gambler, it is prohibited to calculate total amount of cash or total value of items used for gambling of all gambling times but consideration shall be based on each gambling time, specifically:

a/ In case the total amount of cash or total value of items in each gambling time is below the minimum level subject to penal liability examination (below VND 2.000.000) and such gambling act does not fall into other cases subject to penal liability examination (having been convicted of this crime or a crime defined in Article 249 of the Penal Code but not yet having this criminal record written off when committing the gambling act), the gambler will not be held criminally liable for the gambling crime;

b/ In case the total amount of cash or total value of items in each gambling time is equal to or higher than the minimum level subject to penal liability examination (VND 2,000,000 or more), the gambler shall be examined for penal liability for the gambling crime with respect to this gambling time;

c/ In case of gambling from the second time on involving a total amount of cash or total value of items each time equal to or higher than the minimum level subject to penal liability examination (VND 2,000,000 or more), gamblers shall be examined for penal liability with an aggravating circumstance of "committing the crime more than once" under Point g, Clause 1, Article 48 of the Penal Code;

d/ In case of gambling from the fifth time on involving a total amount of cash or total value of items each time equal to or higher than the minimum level subject to penal liability examination (VND 2,000,000 or more) with such cash or items as a main source of livelihood, gamblers shall be examined for penal liability with a frame setting circumstance of "committing the crime in a professional manner" under Point a, Clause 2, Article 248 of the Penal Code.

3. "Cash or items used for gambling" include:

a/ Cash or items used for gambling seized right at the gambling den;

b/ Cash or items seized through body searches of gamblers for which there is a ground to believe that such cash or items have been used or will be used for gambling;

c/ Cash or items seized elsewhere for which there are sufficient grounds to believe that such cash or items have been used or will be used for gambling;

4. When determining cash arid value of items used for gambling, it is necessary to distinguish:

a/ In case of multiple gamblers, the determination of the amount of cash or value of items used for gambling per gambler as total amount of cash or value of items of such gamblers is guided in Clause 3 of this Article;

b/ In case of gambling in the form of buying so de (betting on the last two numbers of the first lottery prize), soccer betting, horse racing betting.... a time of buying so de, soccer betting or horse racing betting (to be considered a gambling time) is understood as buying so de of a lottery draw, betting in a soccer match or a horse race in which the gambler may plays in multiple rounds. In these cases, the penal liability of a gambler each gambling time shall be determined based on the total amount of cash or value of items used in these rounds.

Example I: In the 39thhorse race, held on July 15, 2010, from 9:00 hrs to 11:00 hrs, A bet on three rounds with VND 500.000 in the first round, VND 1,000,000, the second round, and VND 2.000,000, the third round. In this case A was regarded as gambling once in such horse race with a total cash amount of VND 3.500,000.

Example 2: On July 20, 2010, during 10:00 hrs and 16:00 hrs, B bought three numbers in a specific so de lot, including number 17 at VND 500.000, number 20, VND 2.100,000, and number 25, VND 3,000,000. In this case B was regarded as gambling once.

In the cases of examples 1 and 2. even if the amount of cash used in a horse racing bet or buying so de in each round is VND 2,000,000 or more, the aggravating circumstance of "committing the crime more than once" under Point g. Clause 1, Article 48 of the Penal Code is still not applicable.

5. The amount of cash or value of items used by bettors and so de sellers or bookies in the form of buying so de or soccer or horse racing betting shall be determined as follows:

5.1. Determining the amount of cash or value of items used by bettors

a/ In case the bettor wins, the amount of cash used by such person in gambling is the total amount of cash he/she used to buy so de or make a bet plus the amount of cash he/she actually received from the so de seller or bookie.

Example: B bought 5 so de numbers with a total amount of VND 100,000 at the odds of 70 to 1. including 4 numbers at VND 10.000 each and J number at VND 60,000. B’s act was detected after the lottery draw, soccer match or horse racing results were available, and B won the so de number bought at VND 60,000, then the amount of cash B used in gambling in this case was VND 100.000 + (VND 60,000 x 70 times) = VND 4,300,000.

b/ In case the bettor loses or his/her bet is detected or prevented before results are available, the amount of cash he/she uses for gambling is the total amount he/she uses to buy so de numbers or make a bet.

Example 1: Using the example at Item a. Point 5.1, Clause 5 of this Article, if B did not win any number, then the amount of cash B used for gambling in this case was VND 100,000.

Example 2: Using the example at Item a, Point 5.1, Clause 5 of this Article, if B s bet was detected and prevented before lottery draw results were available, then the amount of cash B used for gambling in this case was VND 100,000, regardless of whether B lost or won.

5.2. Determining the amount of cash or value of items used by so de sellers or bookies for gambling

a/ If there is a winning bettor, the amount of cash used by the so de seller or bookie in gambling is the total amount of cash actually received by such so de seller or bookie from bettors, plus the amount of cash he/she paid to the winner.

Example: D illegally sold so de numbers to 5 different bettors, each buying a number at VND 50,000 (totaling VND 250,000) at the odds of 70 to 1; and two of these bettors won. The amount of cash used by D for gambling in this case was VND 250.000 + (VND 50,000 x 2 bettors) = VND 7,250,000.

b/ If no bettor wins or their gambling act is detected or prevented before lottery draw, soccer match or horse racing results are available, the amount of cash used by the so de seller or bookie for gambling is the total amount of cash received by such so de seller or bookie from bettors.

Example 1: Using the example at Item a, Point 5.2, Clause 5 of this Article, if all 5 bettors lost, then the amount of cash used by D for gambling was VND 50,000 x 5 bettors = VND 250,000.

Example 2: Using the example at Item a. Point 5.2. Clause 5 of this Article, if D s act was detected and prevented before lottery draw results were available, then the amount of cash used by D for gambling in this case was VND 50,000 x 5 bettors = VND 250,000, regardless of whether any bettor won after lottery draw results were available.

Article 2.Regarding provisions of Article 249 of the Penal Code

1. Organizing gambling or a gambling den is considered "on a large scale" in any of the following cases:

a/ Organizing gambling or a gambling den at a time for ten or more gamblers or for two or more gambling dens and the amount of cash or value of items used for gambling is between VND 2,000,000 and under 50,000,000.

b/ Organizing a property pledging place for gamblers; installing gambling equipment; assigning guards and servants, arranging exits for use in case of police besiege, using such vehicles and equipment as cars, motorcycles, bicycles, telephones., to aid the gambling.

c/ The total amount of cash or value of items used for gambling at a time is VND 20,000,000 or more.

2. For organizers of gambling or gambling dens in lesser cases other than those guided at Points a. b and c. Clause 1 of this Article, if the total amount of money or value of items used in gambling is between VND 2,000.000 and under VND 50,000.000, though they will not be held criminally liable for the crime of organizing gambling or a gambling den, they will be held criminally liable as accomplices in gambling.

3. "Earning large, very large or exceptionally large illicit profits" is defined as follows:

a/ Earning illicit profits of between VND 10,000,000 and under VND 30,000,000 is earning large illicit profits.

b/ Earning illicit profits of between VND 30,000,000 and under VND 90,000,000 is earning very large illicit profits.

c/ Earning illicit profits of between VND 90,000,000 or more is earning exceptionally large illicit profits.

Article 3.Effect

1. This Resolution was adopted by the Judges Council of the Supreme People s Court on September 23, 2010, and takes effect 45 days from the date of its signing for promulgation.

2. Sections 6 and 7, Part I of Resolution No. 02/2003/NQ-HDTP of April 17, 2003, of the Judges Council of the Supreme People s Court, guiding the application of some provisions of the Penal Code and Section 9 of Resolution No. 01/ 2006/NQ-HDTP of May 12,2006, of the Judges Council of the Supreme People s Court, guiding the application of some provisions of the Penal Code cease to be effective on the date this Resolution takes effect.

3. From the date this Resolution takes effect, if a person commits any of acts specified in Articles 248 and 249 of the Penal Code for which, under this Resolution, he/she is not held criminally liable, and the case is in the process of first-instance trial or appellate trial, the following should be distinguished:

a/ If the procuracy files an official letter to withdraw the case file for additional investigation to clarify the penal liability of the defendant for which the first-instance court saw there is ground, the court shall apply Point b, Clause 2, Article 176 of the Criminal Procedure Code to decide to return the case file to the procuracy;

b/ If the procuracy files an official letter (or a decision) to withdraw the prosecution decision and propose the court to terminate the case, the judge assigned to preside over the hearing trying this case shall apply Article 181 of the Criminal Procedure Code to decide to terminate the case;

c/ If the procuracy upholds the prosecution decision, the competent court shall issue a decision to hold a hearing and the trial panel shall apply Clause 1, Article 25 of the Penal Code to exempt the defendant from penal liability; if the defendant is currently held in temporary detention, to apply Clause 2, Article 227 of the Criminal Procedure Code to set free the defendant;

d/ If the case is in the process of appellate trial, the appellate court shall open a hearing and the trial panel shall apply Clause 1, Article 25 of the Penal Code and Point a, Clause 1, Article 249 of the Criminal Procedure Code to modify the first-instance judgment, exempting the defendant from penal liability;

e/ For terminated cases guided at Point b or cases exempted from penal liability guided at Points c and d of this Clause 3, if defendants are still held responsible for other matters such as damage compensation, disposal of exhibit (including administrative sanction or disciplining) or are tried for another crime (if any), they shall still be handled under general procedures.

4. If the offender was convicted before this Resolution takes effect strictly according to previous documents and his/her judgment already took legal effect, a protest may not be lodged in pursuance to this Resolution according to cassation or re-opening procedures, unless there are other grounds for lodging; if, under this Resolution, such person bears no penal liability, his/her case shall be settled according to penalty exemption procedures, which shall be carried out as follows:

a/ If such person is currently in prison, the president of the provincial-level people s court of the place in which he/she is serving his/her prison sentence shall, at the proposal of the director of the people s procuracy of the same level, issue a decision to exempt him/her from serving the remainder of his/her sentence.

b/ If such person is serving or is going to serve the non-custodial reform sentence or is subject to a suspended sentence and serving his/her probation period, the president of the district-level people s court of the place in which he/she is serving his/her sentence or probation period shall, at the proposal of the director of the people s procuracy of the same level, issue a decision to exempt him/her from serving the whole or remainder of his/her sentence.

c/ If such person is sentenced to prison and is suspended or postponed from serving his/her prison sentence or does not yet serve his/her prison sentence, the president of the provincial-level people s court of the place in which he/she resides or works shall, at the proposal of the director of the people s procuracy of the same level, issue a decision to exempt him/her from serving the whole or remainder of his/her sentence.

d/ If such person is convicted of more than one crime (under the same judgment or different judgments), including a crime which, as guided in this Resolution, is no longer considered a crime, the exemption from serving the penalty for this crime shall be carried out as follows:

- If such person does not yet serve the penalty or has served the penalty for a period not exceeding the penalty level handed down by the court on the crime outside the cases guided in this Resolution, such person shall be exempted from serving the whole penalty for the crime which, as guided in this Resolution, is no longer a crime.

- If such person has served the penalty for a period equal to or exceeding the penalty level handed down by the court on the crime outside the cases guided in this Resolution, such person shall be exempted from serving the remainder of the penalty.

5. When terminating a case, exempting from penal liability or from serving a penalty, the court which has issued a decision to this effect should explain to the person concerned that such termination or exemption is granted in accordance with a new humanitarian criminal policy of the State, but not for redressing an injustice done by procedure-conducting agencies; therefore, such person is not entitled to claim damages under the Law on Compensation Liability of the State.

6. Any problems that arise in the course of implementation requiring explanation or additional guidance should be reported to the Supreme People s Court for timely explanation and guidance.-