Resolution 02/2024/NQ-HDTP guiding the application of a number of provisions of Article 313 of the Penal Code

RESOLUTION

Guiding the application of a number of provisions of Article 313 of the Penal Code

____________

THE JUDICIAL COUNCIL OF THE SUPREME PEOPLE’S COURT

Pursuant to the November 24, 2014 Law on Organization of People’s Courts;

In order to ensure proper and uniform application of a number of provisions of Article 313 of Penal Code No. 100/2015/QH13, which had a number of articles amended and supplemented under Law No. 12/2017/QH14;

After obtaining opinions of the Procurator General of the Supreme People’s Procuracy and the Minister of Justice,

RESOLVES:

Article 1. Scope of regulation

This Resolution guides the application of a number of provisions of Article 313 of Penal Code No. 100/2015/QH13, which had a number of articles amended and supplemented under Law No. 12/2017/QH14 (below referred to as the Penal Code), regarding the crime of violating regulations on fire prevention and fighting.

Article 2. Violations of regulations on fire prevention and fighting

Violations of regulations on fire prevention and fighting specified in Article 313 of the Penal Code include:

1. Acts of violation of regulations on fire prevention and fighting specified in the Law on Fire Prevention and Fighting;

2. Acts of violation of regulations on fire prevention and fighting specified in relevant laws.

Article 3. Examination of penal liability under Clauses 1, 2 and 3, Article 313 of the Penal Code

A person who violates regulations on fire prevention and fighting shall be examined for penal liability under Clause 1, 2 or 3, Article 313 of the Penal Code when falling into the following cases:

1. He/she commits one or more of the acts specified in Article 2 of this Resolution;

2. His/her act of violation causes damage as specified in Clause 1, 2 or 3, Article 313 of the Penal Code; and,

3. There is a causal relationship between his/her act of violation and the damage. That means, the damage is the inevitable consequence of the act of violation and the act of violation is the cause of the damage.

Article 4. Examination of penal liability under Clause 4, Article 313 of the Penal Code

1. “Violating regulations on fire prevention and fighting in case the violation, if not prevented in time, is likely to practically cause a consequence specified at Point a, b or c, Clause 3 of this Article” provided in Clause 4, Article 313 of the Penal Code means an act of violation specified in Article 2 of this Resolution that falls into one of the following cases:

a/ A fire has not yet occurred but, if preventive measures are not applied in time, is certain to occur and will cause the damage specified at Point a, b or c, Clause 3, Article 313 of the Penal Code;

b/ A fire has occurred and will inevitably cause the consequence specified at Point a, b or c, Clause 3, Article 313 of the Penal Code, but, thanks to timely application of preventive measures, the extent of damage is slighter than that specified in Clause 1, Article 313 of the Penal Code.

2. “Timely application of preventive measures” means a case in which an agency, organization or individual takes preventive measures immediately after the commission of an act of violation of regulations on fire prevention and fighting, such as: extinguishing the fire, removing flammable substances from crowded places, removing ignition sources and heat sources from “no fire” places , etc., in order to prevent a fire from occurring, or to keep the extent of damage caused by the fire slighter than that specified in Clause 1, Article 313 of the Penal Code.

For example: A was smoking while filling his gas tank at a filling station (there were 10 people at the filling station at that time). B asked A to move for putting out the cigarette, but A refused to do so and even threw the lighting cigarette onto the ground, thus causing a fire. B immediately used a fire extinguisher to put out the fire, so no consequence was caused. A’s act is the act of "bringing ignition sources to “no fire” places” and, for such act of violation, he shall be examined for penal liability under Clause 4, Article 313 of the Penal Code.

Article 5. Examination of penal liability in a number of specific cases

1. In case a person performs jobs that require compliance with regulations on occupational safety, occupational health and safety in crowded places but, during the job performance, he/she violates regulations on occupational safety, occupational health and safety in crowded places, and such violation causes a fire and damage, he/she shall be examined for penal liability under Article 313 of the Penal Code but not under Article 295 of the Penal Code.

For example: A was hired by B to weld the roofs of karaoke rooms. A did neither use a head shield for protection against heat rays nor monitor the welding process to ensure safety, so metal particles with high temperature are released around, causing a big fire and property damage of VND 1,000,000,000. A’s act is a violation of Section 2.2.12 of the Ministry of Labor, Invalids and Social Affairs’ national technical regulation QCVN 03:2011/BLDTBXH of July 29, 2011, on safe work for electric welding and welding jobs. In this case, A shall be examined for penal liability under Article 313 of the Penal Code.

2. In case a person commits multiple criminal offenses, if each offense involves sufficient elements constituting a crime but he/she has yet to be examined for penal liability while the statute of limitations for examination of penal liability has not expired, he/she shall, in addition to being imposed the penalty corresponding to the total damage caused by such offenses, also be subject to the penal liability-aggravating circumstance of “committing a crime twice or more” as specified at Point g, Clause 1, Article 52 of the Penal Code.

Article 6. Effect

This Resolution was adopted on April 24, 2024, by the Judicial Council of the Supreme People’s Court, and takes effect on June 18, 2024.-

On behalf of the Judicial Council of the Supreme People’s Court
Chief Justice of the Supreme People’s Court
NGUYEN HOA BINH