THE MINISTRY OF THE INTERIOR
THE SUPREME PEOPLE'S PROCURACY
THE SUPREME PEOPLE'S COURT
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SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No.
10-TTLT
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Hanoi
,December 31, 1996
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JOINT CIRCULAR
GUIDING THE
HANDLING OF ILLEGAL MOTORBIKE RACES
At
present, illegal racing, especially motorbike racing, has become more and more
complicated, disturbing public order, violating the regulations on land and
urban traffic order and safety, threatening the life and health of the people,
property of individuals, organizations or the State. In the recent past,
because the criminal handling of such violations of law by the Police, the
Procuracies and the Courts was still disparate and lacked unity, the efficiency
of law in is still limited. For this reason, the Ministry of the Interior, the
Supreme People’s Procuracy and the Supreme People’s Court have reached
agreement to provide the following guidance on handling the acts of illegal
racing:
I.-
HANDLING OF ACTS OF ILLEGAL RACING
1. Illegal racer
An illegal racer referred to in this Circular is
a person who drives a motorbike on a land road with the aim of racing with
another or other motorbike drivers without permission from the competent
agency.
Also regarded as an illegal racer in the
capacity of an accomplice the organizer (who masterminds, heads or commands an
illegal race); the instigator (who incites, induces or instigate) others to
engage in illegal racing; those who assist (providing material or spiritual
conditions) for the illegal race; those who sit together with the illegal racer
with the same intention. For instance, before or after taking his/her seat on
the motorbike a person knows that the driver will take part in the race yet
he/she still sits with intent to take part in the race, or before or after
taking his/her seat on the motorbike the person does not know that the driver
would take part in the race but after the latter begins the race he/she
encourages or cheers on the racer...
If after taking his/her seat on the motorbike a
person does not know that the driver would take part in the race and as they
proceed on the road the driver takes part in the race while he/she has no way
of getting down and does not encourage or cheer on the driver, he/she shall not
be regarded as an illegal racer.
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a/ Any illegal motorbike race with the
participation of two and more motorbikes shall be regarded as an act of causing
public disorder and the illegal racers shall be examined for penal liability on
charge of causing public disorder as stipulated in Clause 1, Article 198 of the
Penal Code.
- The organizer of an illegal motorbike race and
those who instigate others to take part in an illegal race shall be examined
for penal liability under Clause 2, Article 198 of the Penal Code.
b/ In case an illegal racer causes loss of life
and health to another or others or causes serious property damage which,
however, is due to inadvertence, besides being examined for penal liability
under Clause 1, Article 198 of the Penal Code (if he/she is the organizer or
instigator, Clause 2, Article 198 of the Penal Code shall apply), he/she shall
be also examined for penal liability under Article 186 of the Penal Code.
c/ If the racer intentionally causes loss of
life or health to another or others or causes serious property damage, besides
being examined for penal liability under Article 198 of the Penal Code, he/she
shall also examined for penal liability under the corresponding articles of the
Penal Code on this other crime (Article 101, Article 109, Article 138 or
Article 160).
d/ If the illegal race involves betting in money
or in kind the racers shall, beside being examined for penal liability under
Clause 1 or Clause 2 of Article 198 of the Penal Code, also be examined for penal
liability under Article 200 of the Penal Code.
e/ An illegal racer who resists the person on
duty shall, besides being examined for penal liability under Clause 2, Article
198 of the Penal Code, also be examined for penal liability for the crime of resisting
the person on duty under Article 205 of the Penal Code.
f/ An illegal racer who resists the person on
duty and causes injury or death to him/her shall, besides being examined for
penal liability under Clause 2 Article 198 of the Penal Code, be examined for
penal liability under the corresponding articles (Article 101 and Article 109)
of the Penal Code, depending on each specific case.
3. Handling of the motorbike and the driving
license used in an illegal race
a/ Handling of a motorbike used in an illegal
race:
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- If the motorbike used in the illegal race is
not owned or lawfully managed by the racer, the case shall be handled according
to each specific circumstance. More concretely:
+ If the owner knows that the racer uses his/her
motorbike to take part in a race but still lends it to him/her or allows
him/her to use it (for instance, the motorbike belongs to the parents and the
parents allow the child to use it. The child uses the motorbike to take part in
an illegal race. Though they know it the parents continue to allow the child to
use the motorbike). In this case the motorbike shall be confiscated and
remitted to the State fund (as stipulated in Point b, Clause 1, Article 33 of
the Criminal Proceedings Law).
+ If the owner does not know that the racer uses
his/her motorbike to take part in the race the motorbike shall be returned to
the owner (as stipulated in Clause 2, Article 33 of the Penal Code, and Point
b, Clause 2, Article 58 of the Criminal Proceedings Law).
+ If the motorbike used in the race is an appropriated
motorbike, it shall be returned to the owner or the lawful manager (as
stipulated in Clause 2, Article 33 of the Penal Code and Point b, Clause 2,
Article 58 of the Criminal Proceedings Law).
+ If the owner or lawful manager of the
motorbike used in the race cannot be identified, the motorbike shall be
confiscated and remitted to the State fund.
b/ About the driving license:
In all circumstances the illegal racer shall be
stripped of his/her right to use the driving license if he/she has been granted
with one.
4. Some questions concerning the arrest,
temporary custody and temporary detention of an illegal motorbike racer and the
detention of the concerned motorbike
In all circumstances the person taking part in
an illegal motorbike race shall be arrested as stipulated in Article 64 of the
Criminal Proceedings Law concerning the arrest of persons caught in the act of
crime committing. The arrest, temporary custody and temporary detention of an
illegal motorbike racer and the detention of the concerned motorbike must
comply with the provisions of law.
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To help in the fight against illegal motorbike
racing, the Police, the People’s Procuracies and the People’s Courts must be firm
in the handling of this kind of violation of law. Depending on concrete
situations, some of these violations should be classed as typical criminal
cases and shall be dealt with according to the Joint Circular No.01-TTLN of
October 15, 1994 of the Ministry of the Interior, the Supreme People’s
Procuracy and the Supreme People’s Court "Guiding the settlement of
typical criminal cases".
III.-
IMPLEMENTATION EFFECT
1. This Circular takes effect on the date of its
issue.
2. With regard to the acts of illegal racing
which took place prior to the issue of this Circular but of which the
investigation, prosecution and trial had not been finished prior to the issue
of the Circular or their investigation, prosecution and trial are conducted
after the issue of the Circular, this Circular shall apply during the
investigation, prosecution and trial.
3. With regard to the cases which had been tried
at the first instance or appeal court prior to the issue of this Circular, if a
protest has been lodged proposing heavier penalties, the appeal court trial and
retrial shall apply as provided for in this Circular.
4. With regard to the cases which have taken
legal effect before the issue of this Circular and those which have been judged
according to earlier stipulations, the stipulations in this Circular shall not
apply to lodge a protest according to the retrial procedures.
In the process of implementing this Circular,
should any question arises, the investigating, prosecuting and trial agencies
shall immediately report it to the Supreme People’s Court, the Supreme People’s
Procuracy and the Ministry of the Interior with a view to timely guidance.
FOR THE MINISTER OF THE INTERIOR
VICE MINISTER
Le
The Tiem
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FOR THE PRESIDENT OF THE SUPREME PEOPLE’S
COURT
DEPUTY CHIEF JUDGE
Trinh Hong Duong