Nghị quyết 07/2019/NQ-HĐTP hướng dẫn áp dụng Điều 299 và Điều 300 Bộ luật Hình sự

RESOLUTION

Providing guidelines on implementing a number of provisions of Article 299 and Article 300 of the Penal Code

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THE COUNCIL OF JUSTICES
OF THE SUPREME PEOPLE S COURT OF VIETNAM

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

In order to implement correctly and consistently the provisions of Article 299 and Article 300 of the Penal Code;

On the basis of the opinions of the Procurator General of the Supreme People’s Procuracy and the Minister of Justice,

RESOLVES ON:

Article 1. Scope of regulation

This Resolution guides the implementation of a number of provisions of Article 299 on terrorism and Article 300 on the crime of terrorist financing of the Penal Code.

Article 2. Principles of law implementation

The criminal handling of terrorism-related crimes and terrorist financing shall comply with the Penal code, the Criminal Procedure Code, the guidance of this Resolution and other relevant legal documents.

Article 3. Regarding terminologies used to guide the implementation of Article 299 and Article 300 of the Penal Code

1.“Social panic"prescribed in Clause 1, Article 299 of the Penal Code is the psychological state of anxiety, fear and confusion among people about safety of their lives, health, properties and other legitimate rights and interests (for example, an explosion in a bus station makes people worried about the safety of their lives, health and properties when participating in traffic).

To cause panic in the public, acts of terrorism as prescribed in Article 299 of the Penal Code may be carried out in public or crowded places (e.g.: squares, commercial malls, traffic intersections, stations, public vehicles, entertainment facilities, tourism attractions, schools, hospitals, residential areas, buildings, etc.).

Acts that are carried out in isolated places instead of public places (e.g.: at a private houses or office buildings, etc.) with the aims of causing social panic shall be prosecuted as terrorism in accordance with Article 299 of the Penal Code if they satisfy other constituents of this crime.

2."Vandalism targeting agencies, organizations and individuals"as prescribed in Clause 1, Article 299 of the Penal Code is an act of irrecoverably damaging assets.

3."Threatening to commit one of the acts prescribed in Clause 1 of this Article"as prescribed in Clause 3, Article 299 of the Penal Code may be expressed in speech, text messages, images or other means of communication with the aim of informing the agencies, organizations and individuals and making them worry about the safety of their lives, health, properties, other legitimate rights and interests.

4."Other acts of mental intimidation"as prescribed in Clause 3, Article 299 of the Penal Code are acts of manipulating, inciting, encouraging, motivating and creating conditions to threaten or actually threatening to infringe upon life and health, freedom of body, property, honor and dignity of the threatened persons or other acts intended to scare the threatened person or to interfere with the ability to perceive and control their behaviors normally.

5."Mobilizing money and properties in any form for terrorist organizations and individuals"as prescribed in Clause 1, Article 300 of the Penal Code is an act of mobilizing and calling individuals and organizations to provide, donate, lend or acts of mobilizing money and properties to terrorist organizations and individuals.

6."Providing money and properties in any form to terrorist organizations and individuals"as prescribed in Clause 1, Article 300 of the Penal Code is an act of providing, offering, lending or other acts of giving money and properties to terrorist organizations or individuals.

Article 4. Regarding a number of sentencing circumstances

1."Illegal seizure of assets of agencies, organizations and individuals"as prescribed at Point c, Clause 2, Article 299 of the Penal code is an act of illegally appropriating, seizing and manipulating the management, ownership, using and disposing rights upon assets of agencies, organizations and individuals.

2. "Damaging assets of agencies, organizations or individuals"as prescribed at Point c, Clause 2, Article 299 of the Penal Code is an act of intentionally reducing the usability of the assets or unrecoverablydamaging the assets.

3.Attacking or infringing upon computer networks, telecommunication networks or electronic facilities of agencies, organizations or individualsas prescribed at Point d, Clause 2, Article 299 of the Penal Code is an act of abusing cyberspace, information technologies or electronic facilities to sabotage and disrupt the normal, safe and secure operation of computer networks, telecommunications networks and electronic facilities, including one of the following acts:

a) Distributing informatic programs which are harmful to computer networks, telecommunications networks and electronic facilities;

b) Crippling, disrupting or stopping the operation of computer networks, telecommunications networks and electronic facilities;

c) Hacking, damaging or appropriating data stored and transmitted via computer networks, telecommunications networks or electronic facilities;

d) Hacking, creating or taking advantage of vulnerabilities, security holes and system services of computer networks, telecommunications networks or electronic facilities;

dd) Illegally accessing computer networks, telecommunications networks or electronic facilities of essential or classified agencies and organizations (e.g.: the Government, military agencies, police agencies, the State Bank of Vietnam, etc.);

e) Taking over the operational rights against the computer network, telecommunication network and electronic facilities;

dd) Other acts affecting the normal operation of computer networks, telecommunications networks and electronic facilities.

4.Obstructing or disrupting the operation of computer networks, telecommunications networks and electronic facilities of agencies, organizations and individualsas specified at Point d, Clause 2, Article 299 of the Penal Code is an act of deleting, damaging or altering software and electronic data or illegally preventing transmission of data among computer networks, telecommunications networks and electronic facilities or other acts obstructing or disrupting the operation of computer networks, telecommunication networks, electronic facilities of agencies, organizations and individuals.

Article 5. Criminal prosecution in specific cases

1. In case a person committing an offense has the signs of both terrorism and another less serious crime, he or she shall be prosecuted for terrorism.

For example: In order to cause social panic, Nguyen Van A and his accomplices used mines to destroy a number of cars in the yard of Company B. In this case, A and his accomplices shall be prosecuted for terrorism as prescribed in Article 299 of the Penal Code.

2. In case a person commits many criminal acts, including acts of terrorism and other crimes, he or she shall be prosecuted for terrorism and other crimes, if satisfying the constituents of such crimes.

For example: In order to cause social panic, Nguyen Van A and his accomplices used mines to destroy a number of cars in the yard of Company B. After that, Nguyen Van A stole a motorbike worth VND 40 million of Mr. Tran Van C (an employee of Company B) to escape with his accomplices. In this case, A and his accomplices shall be prosecuted for terrorism as prescribed in Article 299 of the Penal Code and property theft as prescribed in Article 173 of the Penal Code.

3. In case a person commits acts of infringing upon others’ lives or destroying properties of agencies, organizations or individuals without the aim of causing social panic, he or she shall not be prosecuted for terrorism but shall be prosecuted for corresponding crimes depending on each specific cases and circumstances.

For example: Due to a personal conflict, Nguyen Van A killed and separated Nguyen Thi C s body into pieces and destroyed the traces of his crime. Nguyen Van A s behavior might cause social panic, but A aimed at revenging himself on C instead of intentionally causing the social panic. Therefore, he shall be prosecuted for murder as prescribed in Article 123 of the Penal code.

Article 6. Effect

This Resolution was adopted by the Council of Justices of the Supreme People s Court on October 16, 2019 and shall take effect from December 01, 2019.