Resolution No. 05/2018/NQ-HDTP dated November 05, 2018 of the Justice Council of People’s Supreme Court on guiding the application of the Penal Code’s Article 234 on the offense of violating regulations on protection of wild animals and Article 244 on the offense of violating regulations on protection of endangered, precious and rare animals

RESOLUTION

Guiding the application of the Penal Code’s Article 234 on the offense of violating regulations on protection of wild animals and Article 244 on the offense of violating regulations on protection of endangered, precious and rare animals[1]

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 apply correctly and uniformly the Penal Code’s Article 234 on the offense of violating regulations on protection of wild animals and Article 244 on the offense of violating regulations on protection of endangered, precious and rare animals, and the Criminal Procedure Code’s Article 106 on disposal of exhibits at the stage of adjudication;

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

RESOLVES:

Article 1.Scope of application

This Resolution guides the application of the Penal Code’s Article 234 on the offense of violating regulations on protection of wild animals and Article 244 on the offense of violating regulations on protection of endangered, precious and rare animals, and the Criminal Procedure Code’s Article 106 on disposal of exhibits at the stage of adjudication.

Article 2.Guidance on application of a number of circumstances for determination of offenses

1.Wildlifeprescribed in Article 234 of the Penal Code means animals on the List of endangered, precious and rare forest plants and animals of group IIB prescribed by the Government or in Annex II to the Convention on International Trade in Endangered Species of Wild Fauna and Flora.

2.Other wildlifeprescribed in Article 234 of the Penal Code means ordinary forest animals prescribed by law and endangered wild animals in Annex III to the Convention on International Trade in Endangered Species of Wild Fauna and Flora.

3.Endangered, precious and rare animalsprescribed in Article 244 of the Penal Code means animals on the List of endangered, precious and rare species prioritized for protection or the List of endangered, precious and rare forest plants and animals of group IB prescribed by the Government or in Annex I to the Convention on International Trade in Endangered Species of Wild Fauna and Flora.

4.Individualmeans a dead or an alive animal. A dead animal which is minus one or more than one body organ shall also be considered an individual (for example, a dead gecko which is minus internal organs or a dead tiger which is minus a leg).

5.Parts inseparable from living bodiesmeans body parts performing specialized functions, the separation of which from an alive animal will lead to the dead of such animal (for example, head, heart, skin, skeleton, liver, etc.).

6.Products of wild animals and endangered, precious and rare animalsmeans products originating from animals (for example, meat, egg, milk, sperm, embryo, blood, internal organs, skin, hair, bone, horn, tusk, leg, hoof, etc.); preliminary processed or processed aquatic animals in complete set; articles with compositions made of processed parts of wild animals or endangered, precious and rare animals (for example, paste processed from bones of wild animals; bags, wallets and belts made of skins of wild animals).

7.Animals of other classesprescribed in Article 244 of the Penal Code means endangered, rare and precious animals which do not belong to the class Mammalia, Aves or Reptilia but are on the List of endangered, precious and rare species prioritized for protection, the List of endangered, precious and rare forest plants and animals of group IB prescribed by the Government or in Annex I to the Convention on International Trade in Endangered Species of Wild Fauna and Flora.

8.Having been administratively sanctioned for one of the acts prescribed in this Articleas prescribed at Point c, Clause 1, Article 234 of the Penal Code means the case in which a person has been administratively sanctioned for one of the acts prescribed in Article 234 of the Penal Code and relapses into one of these acts while the period for being regarded as not having been administratively sanctioned in accordance with the Law on Handling of Administrative Violations has not expired.

9.Having been administratively sanctioned for one of the acts prescribed in this Articleas prescribed at Point e, Clause 1, Article 244 of the Penal Code means the case in which a person has been administratively sanctioned for one of the acts prescribed at Points c, d and dd, Clause 1, Article 244 of the Penal Code and relapses into one of these acts while the period for being regarded as not having been administratively sanctioned in accordance with the Law on Handling of Administrative Violations has not expired.

Article 3.Guidance on application of a number of circumstances for determining  penalty brackets

1.Hunting in no-hunting areasmeans hunting wild animals or endangered, precious and rare animals in conservation areas, national parks, nature reserves, species-habitat conservation areas or landscape protection areas or hunting in other areas where hunting is banned under regulations of competent state agencies.

2.Hunting during no-hunting periodmeans hunting wild animals or endangered, precious and rare animals during their breeding or migration season. The determination of the breeding and migration seasons of each species must comply with regulations of competent agencies.

3.Using prohibited hunting gear or equipmentmeans using weapons, poisoned arrows, explosives or toxins, digging trenches or holes, placing spikes, laying big tripod-traps, spike-traps, javelin traps, electric traps, collapsible traps, big logs, big iron forks or employing other dangerous gear or equipment which are not permitted for use in hunting by competent agencies.

4.Abusing positions and powersas prescribed at Point b, Clause 2, Article 234 of the Penal Code means the case in which a person with position and powers abuses his/her position and powers to commit one of the acts prescribed in Clause 1, Article 234 of the Penal Code.

5.Abusing positions and powersas prescribed at Point e, Clause 2, Article 244 of the Penal Code means the case in which a person with position and powers abuses his/her position and powers to commit one of the acts prescribed in Clause 1, Article 244 of the Penal Code.

6.Cross-border transportation or tradingmeans the case in which an offender has completed or is conducting the transportation of wild animals or endangered, precious and rare animals or their body parts or products out of the national border of the Socialist Republic of Vietnam by land, sea, air or underground or vice versa. Cases in which customs clearance procedures for wild animals or endangered, precious and rare animals or their body parts or products have been completed will also be regarded as cross-border transportation or trading.

Article 4.Acts of stockpiling individuals, parts inseparable from living bodies or products of wild animals or endangered, precious and rare animals

1. From 0:00 hours of January 1, 2018 (the effective date of the Penal Code) onwards, acts of illegally stockpiling individuals, parts inseparable from living bodies or products of wild animals or endangered, precious and rare animals shall be subject to examination for penal liability under Article 234 or 244 of the Penal Code on a case-by-case basis, if there are sufficient crime constituents.

2. Acts of illegally stockpiling individuals, parts inseparable from living bodies or products of wild animals or endangered, precious and rare animals committed before January 1, 2018, shall not be subject to examination for penal liability, except cases of stockpiling individuals, parts inseparable from living bodies or products of wild animals or endangered, precious and rare animals for the purpose of trading for gaining illicit profits.

Article 5.Acts of appropriating individuals, parts inseparable from living bodies or products of wild animals or endangered, precious and rare animals

1. If there are sufficient crime constituents, a person who commits the act of appropriating individuals, parts inseparable from living bodies or products of wild animals or endangered, precious and rare animals of another person shall be examined for penal liability for the relevant offense of appropriation prescribed in the Penal Code’s Chapter on offenses of ownership infringement on a case-by-case basis.

2. If there are sufficient crime constituents, a person who commits the act of appropriating individuals, parts inseparable from living bodies or products of wild animals or endangered, precious and rare animals of another person and then commits one of the offenses prescribed in Article 234 or 244 of the Penal Code shall also be examined for penal liability for the offense of violating regulations on protection of wild animals or the offense of violating regulations on protection of endangered, precious and rare animals on a case-by-case basis.

Example 1: Nguyen Van A stole 10 kilograms of ivory valued at VND 130 million and then was caught red handed while he was selling ivory to Nguyen Van B. In this case, A will be examined for penal liability for the offense of thievery and the offense of violating regulations on protection of endangered, precious and rare animals.

Example 2: Nguyen Van C stole 10 kilograms of ivory valued at VND 130 million. He was arrested while transporting ivory for hiding. In this case, C will only be examined for penal liability for the offense of thievery.

Article 6.Cases in which endangered, precious and rare animals of different classes are seized

For a case in which animals of classes Mammalia, Aves and Reptilia and other classes on the List of endangered, precious and rare forest plants and animals of group IB or Annex I to the Convention on International Trade in Endangered Species of Wild Fauna and Flora are seized but the number of individual animals of each class is less than that prescribed in Article 244 of the Penal Code, the person committing the act of violating regulations on protection of endangered, precious and rare animals shall not be examined for penal liability for the offense of violating regulations on protection of endangered, precious and rare animals.

Article 7.Disposal of exhibits

1. Exhibits being wild animals or endangered, precious and rare animals or their products shall be disposed of as follows:

a/ In case exhibits being wild animals or endangered, precious and rare animals are still alive, right after assessment conclusions are made these animals shall be handed over to specialized management agencies for release to nature or handed over to rescue centers, nature conservation areas or national parks or to other organizations in accordance with law;

b/ In case exhibits are dead individuals or perishable or difficult-to-preserve products of wild animals or endangered, precious and rare animals, they shall be destroyed or handed over to specialized management agencies for disposal in accordance with law.

c/ Exhibits other than those prescribed at Points a and b, Clause 1 of this Article shall be confiscated or destroyed in accordance with law.

2. For cases in which exhibits are disposed of under the guidance at Point a or b, Clause 1 of this Article, during the adjudication, courts shall base themselves on records of seizure, photos, electronic data, assessment records, records of delivery and receipt, decisions on disposal of exhibits, and other documents included in case files to settle the cases.

3. The competence, order and procedures for disposing of exhibits being wild animals or endangered, precious and rare animals or their products must comply with the Criminal Procedure Code and its guiding documents.

Article 8.Effect

This Resolution was adopted by the Judicial Council of the Supreme People’s Court on September 27, 2018, and takes effect on December 1, 2018.-

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