THE JUDGES' COUNCIL OF THE SUPREME PEOPLES COURT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No. 01/2010/NQ-HDTP
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Hanoi, October 22, 2010
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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:
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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;
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Example I: In the 39th horse 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.
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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.
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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.
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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.
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- 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.-
ON BEHALF OF THE JUDGES' COUNCIL
PRESIDENT
Truong Hoa Binh