DISCUSSION ON CASE LAW NO. 47/2021/AL REGARDING THE DETERMINATION OF THE CRIME IN CASES WHERE THE AC

The reasoning and conclusions of a court judgment or decision that has legal force in a particular case are known as case law. These are chosen by the Supreme People's Court's Council of Justices and published by the Chief Justice of the Supreme People's Court for courts to review and use when making decisions. In order to ensure that cases with comparable legal situations are decided consistently, judges and jurors must research and utilize case laws while making decisions. If a case involves similar legal circumstances but the court does not apply the case law, it must clearly state the reasons in the court’s judgment or decision. If the court applies a case law to resolve a case, the case law number, name, legal situation, legal solution in the case law, and the legal situation of the case being resolved must be cited and analyzed in the “Court’s Findings” section. Depending on the specific case, the court may quote the entire or part of the content of the case law to clarify its stance in adjudicating and resolving similar cases.

At this moment, the Council of Justices of the Supreme People’s Court has published 72 case laws covering various types of cases, including criminal, civil, marriage and family, administrative matters, and others. These case laws have contributed to the timely and accurate resolution of cases, ensuring that the law is strictly and uniformly observed, and playing a crucial role in struggling against violations, crimes, and maintaining social order, security, and safety.

Case Law No. 47/2021/AL, one of the published case laws, is concerning the determination of the offense in cases where the accused uses a dangerous weapon to stab a vital part of the victim’s body. This case law was adopted by the Council of Justices of the Supreme People’s Court on November 25, 2021, and was published under Decision No. 594/QĐ-CA on December 31, 2021, by the Chief Justice of the Supreme People’s Court. The legal situation in this case law is: "The accused used a knife, a dangerous weapon, to stab the victim’s abdomen, a vital part of the human body. The victim’s survival was beyond the accused’s subjective intent." The legal solution provided is: "In this case, the court must hold the accused criminally liable for the crime of Murder."

The practical application of Case law No. 47/2021/AL has ensured strict punishment for individuals who use dangerous weapons to attack vital parts of the human body, considering such actions as constituting the crime of Murder, a particularly serious offense with penalties ranging up to life imprisonment or the death penalty. This has contributed to the deterrence and prevention of such crimes, particularly as the trend of groups, especially youths, gathering and inciting each other to use weapons for retaliatory assaults is on the rise. Additionally, Case law No. 47/2021/AL has significant practical relevance, as the legal situation it addresses is commonly encountered in reality. Therefore, in cases with similar legal circumstances, the application of this case law facilitates the swift and effective resolution of cases, helping to promptly overcome difficulties and obstacles in handling this type of crime.

However, the practical application of Case law 47/2021/AL has faced certain difficulties and obstacles. The case law provides the following legal situation: "The accused used a knife, a dangerous weapon, to stab the victim's abdomen, which is a vital part of the human body. The victim's survival was beyond the accused's subjective intent." The guidance given by the case law remains somewhat general, without specific clarification regarding the type of dangerous weapon, the vital parts of the human body, or the extent of the victim's health damage. Consequently, the application of Case law No. 47/2021/AL by judicial authorities has, in some cases, led to confusion and differing viewpoints. In many cases, an incorrect assessment of the nature and severity of the offense has resulted in the determination of the crime of intentional injury instead of murder, and vice versa. In several first-instance trials, the mechanical application of Case law No. 47 has led to a surge in convictions for the crime of "Murder." Some cases were dismissed only to be later reopened. In many instances, lower-level judicial authorities deemed there were signs of murder, sought guidance from higher authorities, or transferred the case to a higher court, only for it to later be determined that the offense did not constitute murder.

To ensure consistency in understanding the application of Case law No. 47, the Supreme People’s Court and the Supreme People’s Procuracy have issued specific guidelines, including: Official Dispatch No. 49/TANDTC-PC dated March 22, 2023, addressing 15 issues regarding criminal matters, criminal procedure, and the execution of criminal judgments; Official Dispatch No. 100/TANDTC-PC dated June 13, 2023, from the Supreme People’s Court concerning the application of Case law No. 47/2021/AL; and Official Dispatch No. 721/V14 dated November 25, 2022, from Division 14 of the Supreme People’s Procuracy, providing feedback on handling cases involving health infringements related to Case law No. 47.

Official Dispatch No. 100/TANDTC-PC dated June 13, 2023, from the Supreme People’s Court regarding the application of Case law No. 47/2021/AL states that: "To apply this case law, it is first necessary to determine the vital parts of the human body, which are those areas containing crucial organs that are essential to human life (e.g., heart, liver, kidneys, brain, aorta...). If these areas are harmed, and the injured person is not given timely medical assistance, they will die. Therefore, in addition to proving that the accused used a dangerous weapon to attack a vital part of the victim’s body, it is necessary to comprehensively review and evaluate the case’s documents and evidence, including the nature and severity of the act, the mechanism of the injury, the determination in carrying out the act, and the body part that the accused intended to attack. This is to prove the accused's subjective intent to deliberately commit an act that endangered the victim’s life. The accused's actions must demonstrate aggression, brutality, and a disregard for human life, where the fact that the victim did not die was beyond the accused’s subjective intent or desire." Therefore, the implementation of Case law No. 47/2021/AL is not always justified in cases when the accused attacks a vital part of the victim's body with a harmful weapon. Only when the accused's conduct completely satisfies the requirements for the crime of "Murder," and the accused is found guilty of "Murder" as an attempted crime, should the case law be followed.

According to the Supreme People's Procuracy, in order to apply and implement Case law No. 47, it is necessary to thoroughly consider and evaluate all case developments and circumstances, including the severity of the attack, the nature and nature of the act, the mechanism by which the injury was formed, the decision made during the act's execution, and the victim's body part that the accused intended to attack. This is in addition to demonstrating that the accused used a dangerous weapon to attack a vital part of the victim's body. Furthermore, in order to prevent erroneous convictions or mistakes, the prosecution must make sure that the evidence is sufficiently supported to support proper handling; Case law No. 47 should only be applied in cases with comparable facts and circumstances; it should not be used to "cut" moments or instances of the act occurring for the purposes of application and resolution.

Based on the material above, the author makes the following suggestions for the proper execution of Case law No. 47 in line with the legal spirit that the Supreme People's Court Council of Judges is striving for as follows:

First, it is necessary to strengthen leadership and direction in the process of handling reports of crimes and criminal cases, especially in cases of Intentional Injury and Homicide. Leaders of the judicial agencies should continue to ensure that officials and staff in their units thoroughly understand the contents of Case law No. 47 and the guiding documents for its application. Accordingly, to apply and implement Case law No. 47, in addition to proving that the accused used a dangerous weapon to attack a vital part of the victim's body, it is essential to demonstrate the accused's intention to deprive the victim of life or to show an attitude of indifference or disregard for the consequences, demonstrating a lack of concern for the victim's life. This can be reflected through other circumstances such as the nature, degree, intensity of the attack, the power dynamics between the two parties, the determination in committing the offense, the reception of the will during the commission of the act, and the identification of intentional fault when performing the act. In this context, the consequence of the victim not dying is considered outside the subjective intention of the accused.

Second, the judicial agencies must further enhance their responsibilities in the process of handling reports of crimes and criminal cases concerning Intentional Injury and Homicide, especially during the stages of receiving and addressing denunciations and crime reports in accordance with the requirements for combating crime. They should strengthen the spirit of responsibility and promote proactivity in verifying and investigating to collect sufficient and timely documentation and evidence for case resolution. It is essential to be serious and cautious in reviewing case files to establish quality verification requests that closely align with the case's content.

Third, there should be an enhancement of inter-agency coordination, promptly analyzing and assessing arising difficulties, thereby reaching a consensus on implementation solutions. For cases where Investigators, Prosecutors, and Judges identify challenges in evaluating evidence or determining charges, they should promptly report to their unit leaders to organize inter-agency meetings at the same level to achieve a unified perspective on resolution. In cases where consensus cannot be reached, it is necessary to report to seek guidance from higher inter-agency authorities to ensure a uniform understanding in evaluating evidence and applying Case law No. 47 to determine Homicide charges in cases of attempted homicide involving the use of dangerous weapons to attack vital areas of the victim's body, thereby avoiding prolonged litigation or wrongful outcomes during the case resolution process.

Fourth, increasing training and development initiatives is crucial to raising the professional and technical proficiency of judicial agency staff. The experience reports from higher authorities during the management of certain instances should be updated and distributed to officials within the unit for study and practical application, improving their abilities and experience in carrying out their tasks.

Lawyer Nguyễn Loan - FDVN Law Firm

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