Precedent No. 46/2021/AL was adopted by the Judicial Council of the Supreme People’s Court on November 25, 2021, and promulgated under Decision No. 594/QD-CA dated December 31, 2021, by the Chief Justice of the Supreme People’s Court.
1. What is a Precedent?
Precedents are arguments and rulings in legally effective judgments and decisions of the Court regarding specific cases selected by the Judicial Council of the Supreme People’s Court and promulgated by the Chief Justice of the Supreme People’s Court as precedents for Courts to study and apply in adjudication. (Article 1 of Resolution 04/2019/NQ-HDTP)
A selected precedent must meet the following criteria:
– Contain value in clarifying legal provisions that have different interpretations; analyze and explain legal issues and events; and point out principles, handling directions, and legal norms to be applied in a specific case or demonstrate fairness toward issues not yet specifically regulated by law;
– Be exemplary;
– Have guidance value for the uniform application of law in adjudication.
2. Precedent No. 46/2021/AL on determining the penalty framing circumstance “Against a child for whom the offender has educational responsibility” in the crime of “Indecent acts against children”
2.1. Source of the Precedent
Cassation Decision No. 12/2020/HS-GDT dated August 7, 2020, of the Judicial Council of the Supreme People’s Court regarding the case of “Indecent acts against children” against defendant Dinh Quang D.
Location of the precedent content:
Paragraphs 3 and 4 of the “Court’s Assessment” section.
2.2. Summary of the Precedent Content
– Precedent situation:
The defendant is a teacher at the school where the child victim attends, does not directly teach the victim, and commits indecent acts against the victim.
– Legal solution:
In this case, the Court must determine that the defendant committed the crime of “Indecent acts against children” under Point c, Clause 2, Article 116 of the 1999 Penal Code with the penalty framing circumstance “Against a child for whom the offender has educational responsibility” (corresponding to Point d, Clause 2, Article 146 of the 2015 Penal Code on the crime of “Indecent acts against persons under 16 years of age” with the penalty framing circumstance “Against a person for whom the offender has educational responsibility”).
Legal provisions related to the precedent:
– Point c, Clause 2, Article 116 of the Penal Code of Vietnam 1999 on the crime of “Indecent acts against children” (corresponding to Clause 1, Point d, Clause 2, Article 146 of the Criminal Code of Vietnam 2015 amended and supplemented in 2017 on the crime of “Indecent acts against persons under 16 years of age”);
– Points dd and e, Clause 1, Article 31 of Circular No. 12/2011/TT-BGDDT dated March 28, 2011, of the Ministry of Education and Training promulgating the Charter of Lower Secondary Schools, Upper Secondary Schools, and Multi-level Schools.
Keywords of the precedent:
“Teacher at the school where the child victim attends”; “Indecent acts against children”; “Indecent acts against persons under 16 years of age”; “Offender having educational responsibility”.
CASE CONTENT:
Due to prior acquaintance, at around 07:30 AM on April 2, 2017, Nguyen Thi T (born August 3, 2001), a 10th-grade student at L High School, used her phone to text Dinh Quang D, a teacher at the school, and made an appointment to visit D’s room.
After the appointment, T walked to D’s room in the teacher’s collective housing area. At D’s room, being hesitant about people passing by, D closed the door and then held T’s hand to read her palm. At this time, D put his arm around T’s shoulder and waist. Seeing that T did not react, D developed the intention to get close to T to satisfy his personal needs. D kissed T, pulled T down onto the bed, and lay on the bed with T, continuing to kiss her, touched her stomach and chest, then used his hand to unbutton and unzip T’s pants. D used his left hand to touch T’s genitals. T did not consent, so she pulled D’s hand away and zipped up her pants. D continued to unzip T’s pants and pulled down the front part of the pants he was wearing to expose part of his penis, touching T’s hip. When T pushed D away, D’s pants popped up on their own, pushing his penis back inside. D continued to sit on T’s lap and used both hands to rub T’s cheeks, but T pushed D away, stood up, fixed her hair and clothes, and demanded to leave. D went behind T, hugged her, then opened the door for T to leave. Afterward, T told her family about being sexually abused by D. On April 3, 2017, Mrs. Tran Thi H, T’s mother, denounced Dinh Quang D’s actions.
In Forensic Examination Conclusion No. 166/TTPY dated July 7, 2017, the Forensic Examination Center of Province G concluded: Nguyen Thi T did not suffer physical harm.
In First-instance Criminal Judgment No. 55/2017/HSST dated October 2, 2017, the People’s Court of Chu Prong District applied Clause 1, Article 116; Points h, p, s, Clause 1, and Clause 2, Article 46 of the 1999 Penal Code, sentencing Dinh Quang D to 7 months in prison for the crime of “Indecent acts against children”.
On October 2, 2017, Dinh Quang D appealed for a reduced sentence and a suspended sentence.
In Appellate Criminal Judgment No. 97/2017/HSPT dated December 29, 2017, the People’s Court of Gia Lai Province accepted the appeal of defendant Dinh Quang D; applied Clause 1, Article 116; Points h, p, s, Clause 1, and Clause 2, Article 46; Article 60 of the 1999 Penal Code; additionally applied Point x, Clause 1, Article 51 of the 2015 Penal Code, modified the first-instance criminal judgment, and sentenced Dinh Quang D to 7 months in prison but granted a suspended sentence.
On April 6, 2018, the Chief Procurator of the High-level People’s Procuracy in Da Nang issued Cassation Protest Decision No. 48/QD-VC2 requesting the annulment of the first-instance and appellate criminal judgments, arguing that Dinh Quang D’s criminal act must be tried with the aggravating framing circumstance “Against a child for whom the offender has educational responsibility” as prescribed in Point c, Clause 2, Article 116 of the 1999 Penal Code.
In Cassation Decision No. 55/2018/HS-GĐT dated October 23, 2018, the Judges’ Committee of the High-level People’s Court in Da Nang upheld the appellate criminal judgment.
In Protest No. 13/QD-VKSTC-V7 dated October 23, 2019, the Chief Procurator of the Supreme People’s Procuracy decided to: Protest against Cassation Decision No. 55/2018/HS-GĐT dated October 23, 2018, of the High-level People’s Court in Da Nang and Appellate Criminal Judgment No. 97/2017/HSPT dated December 29, 2017, of the People’s Court of Gia Lai Province. Requested the Judicial Council of the Supreme People’s Court to conduct cassation proceedings to annul First-instance Criminal Judgment No. 55/2017/HSST dated October 2, 2017, of the People’s Court of Chu Prong District, Appellate Criminal Judgment No. 97/2017/HSPT dated December 29, 2017, of the People’s Court of Gia Lai Province, and Cassation Decision No. 55/2018/HS-GĐT dated October 23, 2018, of the High-level People’s Court in Da Nang for a re-trial in accordance with the law. The reasons were as follows:
“The High-level People’s Court in Da Nang observed: The circumstance ‘Person with educational responsibility’ prescribed in Point c, Clause 2, Article 116 of the 1999 Penal Code is understood as a teacher directly teaching or being the homeroom teacher of the victim. In this case, defendant Dinh Quang D is a teacher, and Nguyen Thi T—the victim—is a student; however, the two do not have a direct teacher-student relationship, so Clause 1, Article 116 of the 1999 Penal Code was applied to punish Dinh Quang D. The above observation and decision by the High-level People’s Court in Da Nang constitute a serious error in the application of the Penal Code because: Dinh Quang D is a geography teacher at L High School, where Nguyen Thi T is a student. According to the provisions in Points dd and e, Clause 1, Article 31 of Circular 12/2011/TT-BGDĐT dated March 28, 2011, of the Ministry of Education and Training, issued with the Charter of Lower Secondary Schools, Upper Secondary Schools, and Multi-level Schools, the duty of a subject teacher is to protect the legitimate rights and interests of students and to coordinate with the homeroom teacher and other teachers in teaching and educating students. Therefore, in his capacity as a teacher of the school, D has the responsibility to educate all students of the school, including Nguyen Thi T. Dinh Quang D’s criminal act seriously affected the reputation of all teachers at L High School. Therefore, Dinh Quang D’s criminal act must be prosecuted and tried with the framing circumstance ‘Against a child for whom the offender has educational responsibility’ as prescribed in Point c, Clause 2, Article 116 of the Penal Code.
The People’s Court of Chu Prong District applied Clause 1, Article 116 of the 1999 Penal Code to sentence Dinh Quang D to 7 months in prison, which is not commensurate with the nature and dangerousness of the act committed by the defendant. The appellate judgment and the cassation decision additionally applying Point x, Clause 1, Article 51 of the 2015 Penal Code to defendant D is incorrect because the defendant’s father is not a martyr; furthermore, granting defendant D a suspended sentence does not meet the requirements for combating crimes of child sexual abuse, which are currently complex and of particular concern to public opinion.”
At the cassation hearing, the representative of the Supreme People’s Procuracy requested the Judicial Council of the Supreme People’s Court to accept the protest of the Chief Procurator of the Supreme People’s Procuracy; annul First-instance Criminal Judgment No. 55/2017/HSST dated October 2, 2017, of the People’s Court of Chu Prong District, Appellate Criminal Judgment No. 97/2017/HSPT dated December 29, 2017, of the People’s Court of Gia Lai Province, and Cassation Decision No. 55/2018/HS-GĐT dated October 23, 2018, of the High-level People’s Court in Da Nang for a re-trial in accordance with the law.
COURT’S ASSESSMENT:
[1] Based on the documents in the case file, the first-instance and appellate courts’ trial of Dinh Quang D for the “Crime of indecent acts against children” is well-founded and in accordance with the law.
[2] Regarding the penalty framing circumstance: The Judges’ Committee of the High-level People’s Court in Da Nang held that since D was not the teacher directly teaching Nguyen Thi T, the aggravating framing circumstance “Against a child for whom the offender has educational responsibility” prescribed in Point c, Clause 2, Article 116 of the 1999 Penal Code was not applied, which is contrary to the law.
[3] Dinh Quang D is a geography teacher at L High School. On March 26, 2017, D went to the boarding student area for ethnic minorities to ask male students to help him chop bananas behind D’s collective housing. He met T playing in the female students’ room and learned that T was in the 10th grade. From then on, D and T frequently texted each other. On April 2, 2017, T texted to visit D’s room, and D committed indecent acts against T. Therefore, D had known T for about one week and knew that T was a student at L High School.
[4] According to the provisions in Points dd and e, Clause 1, Article 31 of Circular 12/2011/TT-BGDĐT dated March 28, 2011, of the Ministry of Education and Training, issued with the Charter of Lower Secondary Schools, Upper Secondary Schools, and Multi-level Schools, the duty of a subject teacher is to protect the legitimate rights and interests of students and to coordinate with the homeroom teacher and other teachers in teaching and educating students. Therefore, in his capacity as a teacher of the school, D has the responsibility to educate all students of the school, including Nguyen Thi T. Consequently, the aggravating framing circumstance “Against a child for whom the offender has educational responsibility” prescribed in Point c, Clause 2, Article 116 of the 1999 Penal Code must be applied to D for it to be lawful.
[5] The People’s Court of Chu Prong District applied Clause 1, Article 116 of the 1999 Penal Code to sentence Dinh Quang D to 7 months in prison, which is not commensurate with the nature and dangerousness of the act committed by the defendant. The appellate judgment and the cassation decision additionally applying Point x, Clause 1, Article 51 of the 2015 Penal Code to defendant D is incorrect because, according to the veteran’s profile, the defendant’s father is not a martyr; furthermore, granting defendant D a suspended sentence does not meet the requirements for combating crimes of child sexual abuse, which are currently complex and of particular concern to public opinion.
[6] Therefore, Cassation Protest No. 13/QD-VKSTC-V7 dated October 23, 2019, of the Chief Procurator of the Supreme People’s Procuracy against Cassation Decision No. 55/2018/HS-GĐT dated October 23, 2018, of the High-level People’s Court in Da Nang and Appellate Criminal Judgment No. 97/2017/HSPT dated December 29, 2017, of the People’s Court of Gia Lai Province is necessary; it is required to annul First-instance Criminal Judgment No. 55/2017/HSST dated October 2, 2017, of the People’s Court of Chu Prong District, Appellate Criminal Judgment No. 97/2017/HSPT dated December 29, 2017, of the People’s Court of Gia Lai Province, and Cassation Decision No. 55/2018/HS-GĐT dated October 23, 2018, of the High-level People’s Court in Da Nang for a re-trial in accordance with the law.
For these reasons,
DECISION:
Pursuant to Clause 3, Article 388; Article 391; and Article 394 of the 2015 Criminal Procedure Code:
1. Accept Cassation Protest No. 13/QD-VKSTC-V7 dated October 23, 2019, of the Chief Procurator of the Supreme People’s Procuracy against Cassation Decision No. 55/2018/HS-GĐT dated October 23, 2018, of the High-level People’s Court in Da Nang and Appellate Criminal Judgment No. 97/2017/HSPT dated December 29, 2017, of the People’s Court of Gia Lai Province.
2. Annul First-instance Criminal Judgment No. 55/2017/HSST dated October 2, 2017, of the People’s Court of Chu Prong District, Appellate Criminal Judgment No. 97/2017/HSPT dated December 29, 2017, of the People’s Court of Gia Lai Province, and Cassation Decision No. 55/2018/HS-GĐT dated October 23, 2018, of the High-level People’s Court in Da Nang for a re-trial in accordance with the law.
3. Transfer the case file to the People’s Court of Chu Prong District, Gia Lai Province for a re-trial.
PRECEDENT CONTENT
“[3] Dinh Quang D is a geography teacher at L High School. On March 26, 2017, D went to the boarding student area for ethnic minorities to ask male students to help him chop bananas behind D’s collective housing. He met T playing in the female students’ room and learned that T was in the 10th grade. From then on, D and T frequently texted each other. On April 2, 2017, T texted to visit D’s room, and D committed indecent acts against T. Therefore, D had known T for about one week and knew that T was a student at L High School.
[4] According to the provisions in Points dd and e, Clause 1, Article 31 of Circular 12/2011/TT-BGDĐT dated March 28, 2011, of the Ministry of Education and Training, issued with the Charter of Lower Secondary Schools, Upper Secondary Schools, and Multi-level Schools, the duty of a subject teacher is to protect the legitimate rights and interests of students and to coordinate with the homeroom teacher and other teachers in teaching and educating students. Therefore, in his capacity as a teacher of the school, D has the responsibility to educate all students of the school, including Nguyen Thi T. Consequently, the aggravating framing circumstance “Against a child for whom the offender has educational responsibility” prescribed in Point c, Clause 2, Article 116 of the 1999 Penal Code must be applied to D for it to be lawful.
