CHUYỂN HÓA TỘI PHẠM TRONG MỘT SỐ TRƯỜNG HỢP / TRANSFORMATION OF CRIMINAL OFFENSES IN CERTAIN CASES

1. Overview of the transformation of criminal offenses

Vietnamese criminal law does not provide a specific statutory provision directly regulating the transformation of criminal offenses. However, this phenomenon is commonly encountered and recognized in judicial practice, based on the principle that the determination of charges must be grounded on the objective acts actually committed. The transformation of a criminal offense may be understood as a concept referring to cases in which a criminal act is in progress but not yet completed, i.e., it has not yet fulfilled all the elements constituting the intended offense, and during this process, there is a change or shift in the perpetrator’s conduct (objective aspect) or in both the conduct and the intent (objective and subjective elements). As a result, the originally intended offense is transformed into a different offense, and this new offense is completed, meaning it meets all the legal elements required to constitute a consummated crime.

The nature of the transformation lies in the change of external circumstances, criminal intent, or the perpetrator’s will, or in the shift from an initial intention to actual conduct, thereby leading to a change in the legal characterization of the offense. Depending on the manner and extent of such change, different forms of transformation may occur. For example, an offense of theft may be transformed into robbery or intentional infliction of bodily harm, depending on the perpetrator’s volition at the time of commission.

The transformation of criminal offenses is an important concept in criminal law and criminology, reflecting the evolution of criminal conduct in various dimensions. Its significance can be analyzed from multiple perspectives, including legal theory, the practical aspects of crime prevention and control, and criminal policy formulation.

This phenomenon exhibits several key characteristics:

It must originate from conduct bearing elements of a criminal offense: the perpetrator must have initiated an act that contains the constituent elements of a specific crime. However, this conduct then develops or shifts, resulting in the commission of a different offense;

The final offense, to which the conduct transforms, may carry more severe legal consequences or involve greater harm.

Criminal liability is imposed only for the final offense: the offender shall not be prosecuted or punished for both offenses. Criminal liability attaches solely to the consummated, transformed offense.

The transformation may be subjective or objective: the shift in criminal conduct may result from a change in the offender’s intent or volition (subjective transformation) or from external circumstances that cause the behavior to escalate or evolve into a different offense (objective transformation).

2. Certain issues regarding the transformation of charges in the application of criminal law

In practice, the transformation of criminal offenses frequently occurs in cases involving property-related crimes, such as the transformation from theft to robbery, from theft to extortion, or from snatching or public appropriation to robbery, depending on how the criminal conduct develops during its commission.

First, on the legal basis for the transformation of charges:

At present, Vietnamese criminal law does not contain any explicit provision regulating the transformation of charges. However, the determination and recognition of such transformation have been guided through various sub-law documents. For instance, under Resolution No. 01-HĐTP/NQ dated April 19, 1989 (now repealed), which provided guidance on the application of certain provisions of the Penal Code, the transformation of offenses was discussed as follows: "Judicial practice shows that courts have rendered inconsistent judgments in cases where perpetrators of property appropriation offenses (such as snatching, public appropriation, theft, or fraud) employed violence either to obtain the targeted property or to escape. Some courts classified all such cases as robbery, whereas others treated the use of violence merely as an aggravating circumstance of the underlying property offense, without reclassifying the offense as robbery.

It is now necessary to adopt a consistent approach as follows:

a) In cases where the offender has not yet appropriated the property but uses violence or threatens to use immediate violence in order to obtain the property at all costs, the act shall be classified as robbery.

b) In cases where the offender has already appropriated the property, but the owner or another person retrieves or attempts to retrieve the property that remains within the offender’s control, and the offender then uses violence or threatens to use immediate violence to retain or re-appropriate the property, the act shall also be classified as robbery

In the aforementioned situations, the offender shall be convicted of a single offense that is robbery. The prior act of appropriation (whether completed or incomplete) shall be regarded as part of the factual development of the offense and not as a separate offense.”

According to the guidance under Section 6, Part I of Joint Circular No. 02/2001/TTLT-TANDTC-VKSNDTC-BCA-BTP (which is now no longer in effect), concerning the aggravating circumstance of “assaulting in order to escape” in theft-related offenses, the provision states: When applying the aggravating circumstance of "assaulting in order to escape" (as provided at Point d Clause 2 Article 136, Point a Clause 2 Article 137, and Point d Clause 2 Article 138 of the Penal Code), special attention should be paid to the following:

...6.2. If the offender has not yet appropriated the property or has appropriated it but it is then recovered by the victim or another person, and the offender subsequently uses violence or threatens to immediately use violence to attack the victim or another person in order to re-appropriate the property, then this case shall not be considered “assaulting in order to escape” but shall instead meet all the constituent elements of the offense of robbery.”

Accordingly, the moment of completion of the act of appropriation is generally determined to occur once the property is no longer under the conscious control of its lawful custodian. In such cases, the offender has already performed an act of appropriation, regardless of whether the property has actually been appropriated. Thus, from a legal standpoint, the act may already satisfy the constituent elements of a criminal offense. However, if the property is subsequently recovered by the victim or another person, and the offender then uses violence or threatens to immediately use violence against the victim or another person to reappropriate the property at all costs, such conduct shall not be deemed “assaulting in order to escape,” but rather, it meets all the constituent elements of the offense of robbery. In other words, the legal classification of the offense has been transformed from the original charge into the offense of robbery.

For instance, A sneaks into B’s house at night to commit theft. While A is taking the property, B discovers the act. A then uses a knife to threaten and restrain B in order to retain the appropriated property and escape. In this situation, A’s conduct no longer constitutes theft but has transformed into robbery because at the moment of discovery, A is still inside B’s house, and the property remains within B’s domain of control. B still has the practical ability to recover the property, meaning that A’s act of appropriation has not yet been completed. Therefore, A’s act of using a knife to restrain B with the intent to retain control of the property and remove it from B’s control constitutes the core element of robbery.

Secondly, distinguishing between the transformation of crimes and the aggravating circumstance of “assaulting in order to escape”

According to Joint Circular No. 02/2001/TTLT-TANDTC-VKSNDTC-BCA-BTP, in order to differentiate between the transformation of charges and the aggravating circumstance of “assaulting in order to escape,” the following criteria should be considered:

(i) In the transformation of charges, there must be a clear indication of an attempt by the victim or another person to recover the property from the offender. In contrast, assaulting in order to escape does not involve such a struggle for recovery of the property.

(ii) The transformation of charges results in the establishment of a separate, independent offense, where the original charge is replaced by a new charge. In contrast, assaulting in order to escape is merely a sentencing aggravation factor, not a distinct criminal offense.

(iii) The purpose of the offender, in cases of transformation, when using violence or threatening immediate violence against the victim or another person, is to complete the appropriation of property at all costs. Whereas in cases of assaulting in order to escape, the offender’s actions (such as striking, slashing, shooting, pushing, etc.) are aimed solely at escaping apprehension or pursuit, not at appropriating the property.

Thirdly, key considerations in cases of transformation of crimes

(i) In cases where the offender uses violence against the victim or another person, causing death or bodily harm with the intent to appropriate property at all costs, criminal liability shall be determined based on the principle of multiple offenses or with the inclusion of aggravating sentencing factors, depending on the specific circumstances.

(ii) It is essential to distinguish between the transformation of charges under substantive criminal law and the change of crimes during criminal proceedings. The transformation of charges under substantive criminal law involves reclassifying the offense based on the actual criminal conduct committed, as it aligns with the elements of a different offense than initially intended. The change of crimes during criminal procedure is governed by Article 156 of the 2015 Criminal Procedure Code, which stipulates that “The investigating authority, the agency assigned to carry out certain investigative activities, or the Procuracy shall issue a decision to amend the decision to prosecute a criminal case when there are grounds to determine that the offense initially prosecuted does not correspond to the actual criminal act committed. A decision to supplement the prosecution shall be issued when there are grounds to determine that another offense has been committed but has not yet been prosecuted.” Under this provision, when there are grounds to determine that the initially prosecuted charge was incorrect, the competent authority that issued the original decision must issue a new decision to amend the previously issued decision to prosecute. Therefore, the nature of these two cases is fundamentally different.

3. Practical significance of identifying the transformation of criminal offenses

Proper identification of the phenomenon of offense transformation holds significant importance for criminal procedure authorities, for the following reasons: 

Prevention of multiple prosecutions for the same act: It helps distinguish clearly between the transformation of offenses and the commission of multiple offenses, thereby upholding the principle that no one shall be convicted twice for the same act.

Ensuring accurate prosecution of the correct person with the correct charge: A clear understanding of the nature of the conduct allows authorities to assign the correct charge that accurately reflects the degree of social danger, leading to the imposition of a proportionate and appropriate penalty.

Guiding criminal policy and prevention strategies: Recognizing scenarios where transformation is likely to occur enables authorities to adopt better preventive measures, especially in situations prone to escalation of violent behavior.

The transformation of criminal offenses is a legally significant phenomenon, reflecting the evolution of criminal conduct from less serious offenses to more serious ones. Although it is not explicitly codified in the Penal Code, the identification and proper handling of such cases in procedural and judicial practice plays a vital role in safeguarding criminal justice. Authorities responsible for criminal proceedings must exercise comprehensive observation and thorough evaluation of both objective and subjective elements in order to determine the correct offense, thereby ensuring the rigor and fairness of the law.

Lawyer Phạm Thị Thảo - FDVN Law Firm