'Exoneration' for firecracker traders arrested before January 1

From July 1, 2015 to January 1, 2017, the act of trading in fireworks is not considered a crime and the perpetrator is not subject to criminal liability.

According to Decree No. 59/2006/ND-CP, “fireworks” are on the List of prohibited goods for trading, meaning that fireworks are prohibited goods. Therefore, according to Article 155 of the 1999 Penal Code, the act of manufacturing, storing, transporting, and trading in fireworks can be prosecuted for criminal liability for the crime of Manufacturing, storing, transporting, and trading in prohibited goods.

However, the promulgation of the Investment Law 2014, effective from July 1, 2016, has changed the legality of trading in fireworks and explosives.Criminal prosecution for trading in fireworks and explosives also has significant changes, depending on the time of committing the act corresponding to the effective time of the 2014 Investment Law and the Law amending and supplementing the 2014 Investment Law.

A firecracker trafficking case was arrested by Nghe An Provincial Police. Photo: File

Because according to Appendix IV of the 2014 Investment Law, “trading in fireworks” is defined as a conditional investment and business sector. That means from the time the 2014 Investment Law takes effect, fireworks are no longer considered prohibited goods and the act of trading in fireworks and explosives (manufacturing, storing, transporting, trading) is no longer subject to criminal liability as prescribed in Article 155 of the Penal Code.

However,On November 22, 2016, the National Assembly passed the Law amending and supplementing Article 6 and Appendix 4 on the List of conditional investment and business sectors of the 2014 Investment Law (Law amending and supplementing the 2014 Investment Law), which added the provision "fireworks business" to the prohibited investment and business sectors (Article 6).

This regulation takes effect from January 1, 2017. Thus, from this point on, “firecrackers” are considered prohibited goods as previously regulated. Therefore, the act of trading in firecrackers can still be prosecuted for criminal liability for the crime of Manufacturing, storing, transporting, and trading in prohibited goods according to the provisions of the Penal Code. This regulation only prohibits investment and trading in “firecrackers”, not all types of firecrackers in general. Therefore, only “firecrackers” are considered prohibited goods according to the provisions of law, not all types of firecrackers are prohibited goods.

With the above changes in law, the handling and prosecution of criminal liability for the act of trading in explosives also have significant differences in each period. In order to correctly and consistently apply the provisions of the law in handling acts of storing, transporting and trading explosives domestically, on April 28, 2017, the Supreme People's Court issued Official Dispatch No. 91/TANDTC-PC guiding the handling of acts of storing, transporting and trading explosives domestically.

Accordingly, from July 1, 2015 (the effective date of the 2014 Investment Law) to January 1, 2017 (the effective date of the Law amending and supplementing the 2014 Investment Law), firecrackers are not defined as prohibited goods and there is no criminal prosecution for the act of storing, transporting, and trading firecrackers domestically as prescribed in Article 155 of the Penal Code.. Specifically:

- For acts of storing, transporting, and trading in domestic firecrackers that occurred before 0:00 on July 1, 2015, if the case is in the trial stage, the Court must open a trial and, based on Article 25 of the 1999 Penal Code, exempt the offender from criminal liability.

When exempting from criminal liability, the Court must clearly state in the judgment that the reason for the exemption is due to a change in policy or law that makes the criminal act no longer dangerous to society to the point of requiring criminal prosecution; the person exempted from criminal liability does not have the right to request compensation for damages according to the provisions of the Law on State Compensation Liability.

In case a person is convicted whose judgment has come into legal effect but the convicted person has not yet served the sentence or is having the sentence suspended, he/she shall be exempted from the entire sentence; in case a person is serving the sentence or has the sentence temporarily suspended, he/she shall be exempted from serving the remaining sentence.

When exempting from serving a sentence, the Court must clearly state in the decision to exempt from serving a sentence that the reason for the exemption is due to a change in policy or law that makes the criminal act no longer dangerous to society; the person exempted from serving a sentence does not have the right to request compensation for damages according to the provisions of the Law on State Compensation Liability.

Those who have completed their sentence, are exempted from serving the entire sentence or the remaining sentence, will have their criminal records automatically cleared.

- For the act of storing, transporting and trading in domestic firecrackers that occurred from 0:00 on July 1, 2015 to 0:00 on January 1, 2017, if the case is in the trial stage, the Court must open a trial and, based on the provisions of the 1999 Penal Code and relevant legal provisions, declare the defendant not guilty and suspend the case.

In case a person is convicted and the verdict has come into legal effect, the chief judge of the court of first instance shall review and immediately report to the competent person for appeal to consider a final appeal of the verdict according to the provisions of law.

- For acts of storing, transporting and trading firecrackers domestically carried out from 0:00 on January 1, 2017, continue to follow the instructions in Official Dispatch No. 06/TANDTC-PC dated January 19, 2017 of the Supreme People's Court and the instructions in Joint Circular No. 06/2008/TTLT-BCA-VKSNDTC-TANDTC for handling.

Thus, in the period from July 1, 2015 to January 1, 2017, the act of trading in fireworks is not considered a crime and the perpetrator is not subject to criminal liability, only administrative liability.

According to Official Dispatch No. 91/TANDTC-PC, within 3 days from the date of issuing the judgment or decision on exemption from criminal liability, declaring the defendant not guilty and suspending the case, the Court must transfer the above judgment or decision together with the records, exhibits, means of violation and proposal to handle administrative violations to the person with authority to handle administrative violations as prescribed in Article 63 of the Law on Handling of Administrative Violations.Since January 1, 2017, the act of trading in fireworks is still subject to criminal liability according to regulations.

According to VNE