Mr. Nguyen Van Nhan needs advice: My son H (38 years old) had a land dispute with Mr. A (45 years old). The two sides argued and got into a fight. Mr. A used a bamboo fence post to hit my son. H also pulled out a bamboo post and hit Mr. A on the head, causing bleeding (8% disability rate). H has compensated Mr. A for medical treatment, but he demands that my son be criminally prosecuted. I would like to ask: What is the rate of injury that will result in criminal prosecution?
His question was advised by lawyer Nguyen Van Tang ( Ben Tre Bar Association) as follows:
- According to the law, intentional injury (IAI) depending on the level, nature and consequences will be subject to civil or criminal liability or appropriate administrative sanctions.
According to Article 134 of the 2017 Penal Code, the crime of causing harm to another person's health or causing harm to his or her health is regulated as follows:
1. Anyone who commits a crime or causes harm to the health of another person with a bodily injury rate of 11 - 30% or less than 11% but falls into one of the following cases, shall be subject to non-custodial reform for up to 3 years or imprisonment from 6 months to 3 years:
a) Using weapons, explosives, dangerous weapons or tricks that can harm many people;
b) Using dangerous acids or dangerous chemicals;
c) Against persons under 16 years of age, women known to be pregnant, the elderly, sick or others unable to defend themselves;
i) Has a hooligan nature;
…
According to the above regulations, basically, the act of CYGTT will be prosecuted criminally under Clause 1, Article 134 if the injury level is from 11 - 30%.
In this case, Mr. A suffered a disability of 8% (less than 11%). However, when committing an act of causing injury and meeting one of the conditions specified from point a to point k, clause 1, Article 134, even if the injury level is less than 11%, criminal prosecution can still be initiated.
On the other hand, according to the guidance in sub-sections 2.1 and 2.2, Section 2, Part I of Resolution No. 02/2003/NQ-HDTP dated April 17, 2003 of the Council of Judges of the Supreme People's Court , dangerous weapons are: Weapons or dangerous means capable of causing injury or harm to the health of others. Dangerous means are tools and instruments manufactured to serve human life (in production, in daily life) or objects manufactured by criminals to be used as means to commit crimes or objects available in nature that criminals have and if such tools, instruments or objects are used to attack others, it will endanger the life or health of the person being attacked.
Current law does not list dangerous weapons, but only defines dangerous weapons.
Therefore, in this case, it depends on the investigation agency's conclusion whether the bamboo stake that H used to injure Mr. A is a "dangerous weapon" according to Point a, Clause 1, Article 134 of the Penal Code; or whether H's behavior is "of a hooligan nature" according to Point 1, Clause 1, Article 134 or not, and whether H must bear criminal responsibility or not?
If it is not yet criminally liable, H will be administratively sanctioned with a fine of 500,000 VND to 1 million VND (stipulated in Point a, Clause 2, Article 5 of Decree No. 167/2013/ND-CP of the Government on administrative sanctions for violations in the field of security, social order and safety).
H. Tram (performed)
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