[Vnbiz] FW: FW: Education reform [SEC=UNCLASSIFIED]

Wed Aug 9 00:02:30 PDT 2006

Dear anh Hoanh

Thank you for your very comprehensive analysis. However, before we go
further on this interesting story, please see attached its latest news. It
is quite close to an assumption that I've talked with my friends on the
motivation of the action - possibly Political roots...

That's why we normally say in Vietnam: when we meet a case, step back to
look at it carefully before setting out conclusion.

The provisions on extortion crime (did you mean corruption-style?) is also
attached.

All the best

QA

(See attached file: Case Do Tu Dong_new.pdf)(See attached file: Coruption
crime.pdf)

             "Tran Dinh                                                    
             Hoanh"                                                        
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             m                          Re: [Vnbiz] FW: FW: Education      
                                        reform [SEC=UNCLASSIFIED]          
                                                                     Topic 
             08/08/2006                                                    
             09:01 PM                                                      

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[Vietnam Business Forum]

Dear brother Quang Anh,

Obviously Do Tu Dong's lawyer would have to argue the way you argue.  But
since I am taking the prosecution position, I would argue the other way.

1.  Let's talk about Article 113 ( cuong dam ).  "Whoever uses whatever
scheme to make someone who is depending on him or who is in a difficult
situation to reluctantly have sex intercourse with him ..."   Most of us
would agree that if Do Tu Dong were successful in having sexual intercourse
with VA, he would have been convicted of cuong dam.  I have not heard of
anyone who disagrees with this position in the media.  (He had power over
her, she was under his influence, he used his power of "holding her grade
in his hand" to ask her to go have sex, he did successfully get her into
his hotel room, until she ran out).

The question we have here is: Since he failed in his final goal of sexual
intercourse, would this constitute a violation of Article 113?

Let me go back to the murder example.  If a person shoots someone with the
intent to kill that person, but the bullet missed the victim, the shooter
would be prosecuted and convicted of "murder" in Vietnam.

(Technically, in this example, the crime should be called "attempted
murder" because there is no "murder" yet, i.e., no one dies.  But in the
Vietnamese jurisprudence, the crime is "murder" and the shooter would be
convicted of "murder.")

Now let me go to another example of a typical rape.  If a guy pulls a knife
on the girl in an empty park and forces her to have sex with him, he would
be convicted of "rape."

If when he is about to enter her, the police came to the rescue, he would
be charged and convicted of "rape" under Vietnamese law, even if he did not
have a chance to commit sexual intercourse.

My point here is that in the Vietnamese criminal jurisprudence, you would
be charged and convicted of a crime when you start the course of action and
come close to your final goal, even if you fail in your final goal.

I understand that Article 113 has not been used in a case when the final
sex intercourse didn't occur.  (Probably Article 113 has not been used in
any case at all).  But that is no the reason that it should not be used in
the same way that other articles are used.

(Maybe in a case where the guy has just proposed to the girl:  "Hey, go to
bed with me, I'll give you good grade.  No sex, no graduation" and no other
action has a chance to develop, Article 113 may not be applicable.  But in
this case, all the necessary requirements of Article 113 have already
happened, only the final action did not happen just because she was smart
enough to get away at the last minute).

2.  Now Article 281.  I think all elements of Article 281 has been
fulfilled. "Whoever ... abuses his official position or power to do deviate
from his official duty, creating harm to the government, the society or the
citizen's legal right and interest ..."

In this case, Do Tu Dong had an official position, he abused his position
to lure a female student into sex, he did create harm to the government and
the society (bad bad reputation for the entire education system), he did
violated VA's legal right and interest: The right to have correct grade
according to her ability without agreement to have sex with him, the right
and interest of a woman to be free from sexual extortion.  Her right and
interest have been violated.  There is nothing in article 281 that
requires physical sex.  It is about the rights and interest of the citizen
and the harm to the society.

3.  How about an Article on "extortion"?   This is also an extortion case.
"You go to bed with me and have good grade. (Implying: Refuse and have bad
grade)."   That is an extortion.  I am sure that Vietnamese law has an
article on extortion.  Brother Quang Anh , could you post an Article on
extortion?  Thanks, brother.

Have a good day, brother Quang Anh & all.

Hoanh
_____________________

On 8/8/06, QuangAnh.Nguyen at dfat.gov.au <QuangAnh.Nguyen at dfat.gov.au >
wrote:
[Vietnam Business Forum]

Dear anh Hoanh

Thank you for your comment on the Do Tu Dong case. Actually, I'm not a
criminal specialist, but I think that both Article 113 and Article 281
would not be able to apply for Do Tu Dong case. "Attempted rape" is
normally not applicable to be under Article 113, it is unlike Murder.
Article 281 will only apply for a case, if in that case, there should have
an agreement/compromise and it must have consequence (lost of the
State/lost of the people...).

Unfortunately, Viet Nam hasn't got the provision on "sexual harassment".
There is another similar crime called "Lusty action against children". But
as you see the crime is only be accused once the victim is children, not
adult.

And one important thing to establish a crime under the Criminal Law of
Vietnam is that: there must be a respective action that is regarded
illegally violate the objects of the crime. For example, if it is rape,
there must be sexual intercourse happened, or nearly happened.

Therefore, Mr Dong (or his lawyer) may say, he is a NATO (no action, talk
only) man:-) In other way, that is teasing...and may be regarded as popular
words of many young Don Juans : Should you "afternoon" (chieu) me, or we
break up :-\

All the best
QA

[Vietnam Business Forum]

--
Tran Dinh Hoanh, LLB, JD
Attorney of Law
Washington DC
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