Difficulties in criminal handling of the act of buying, selling and transporting fireworks

(Baonghean) - The closer to the Lunar New Year 2017, the more complicated the situation of production, trading, transportation and storage of fireworks in the province becomes. A series of cases of illegal transportation of fireworks in large quantities have been discovered by the authorities. However, in practice, investigation, prosecution and trial, there are still some problems and shortcomings that make the agencies conducting the proceedings face many difficulties.

Resolutely prevent artillery

With National Highway 1A running through the area, a long coastline, and estuaries with hundreds of boats coming and going, Quynh Luu has become one of the "hot spots" for trading and transporting fireworks. During the months before Tet, in Quynh Luu district, the situation of illegal trading and transporting fireworks with many sophisticated methods and tricks.

According to the leader of Quynh Luu District Police, Quynh Luu is a key area located in the North of the province, so recently, the situation of illegal buying, selling, transporting of weapons, explosives, support tools, firecrackers, etc. has been very complicated. The subjects often disguise by packing them in packages or sealing them in boxes.

In particular, they often take advantage of noon or evening to deliver "goods" to avoid the authorities. With the determination to push back the illegal trading and transportation of fireworks and other illegal items in the area, the unit has closely coordinated with related forces to effectively combat and contribute to "cooling down" this situation.

Dien Chau District Police propagate laws on firecracker prevention to students of the District Continuing Education Center.

Identified as a key area, Vinh city has always received attention from all levels and sectors in the work of preventing and combating violations related to fireworks. In the last months of the year, the situation of illegal buying, selling and transporting of fireworks in Vinh city has become "hotter" than ever.

Therefore, since the beginning of September, Vinh City Police have coordinated with other functional forces to increase patrols and controls to combat this type of crime in order to help people celebrate Tet safely, without firecrackers.

Colonel Tran Ngoc Tu - Head of Vinh City Police said: In addition to firmly grasping the situation, promptly detecting, arresting and strictly handling the subjects, the police force has stepped up propaganda work among cadres, party members and people of all walks of life about the harmful effects of illegal production, trading, storage, transportation and use of fireworks.

In key, densely populated areas, the police force has advised local authorities to integrate this content into the mass movement to protect national security; make a list of families and individuals who violate the law to take measures to remind, deter, and sign a commitment not to re-offend...

With less than 2 months left until Lunar New Year, the work of preventing and combating fireworks is entering a drastic phase. In order to proactively prevent violations of fireworks before, during and after Lunar New Year 2017, in September 2016, the Provincial Police advised the Provincial People's Committee to issue Plan No. 541/KH-UBND on preventing and combating fireworks to mobilize the strength of the entire political system.

After that, the Provincial Police issued Plan No. 307/KH-CAT-PV11 dated September 23, 2016 to direct the police of units and localities to concentrate forces, increase the synchronous use of professional measures to prevent, combat, detect, stop and strictly handle violations of firecrackers, contributing to ensuring that people enjoy Tet and welcome the Spring of Dinh Dau 2017 safely and healthily.

In addition to assigning tasks and building key routes and areas, the Provincial Police also coordinates with local authorities to strengthen propaganda and mobilize people to participate in firecracker prevention and control. Units that perform well and break major cases will be promptly commended and rewarded. Units that do not perform well will be reminded and criticized when they do not properly implement the assigned plans and tasks.

Subject Ngo Quang Luoc (residing in Quynh Hung, Quynh Luu) was caught red-handed by PC 46 Department of Nghe An Police while transporting 23 kg of illegal firecrackers on November 25.

Problems in criminal trials

Up to now, fireworks have always been accompanied by unpredictable harms, negatively affecting human life and health, economic management order and social security. Therefore, Decree No. 59/2006/ND-CP dated June 12, 2006 of the Government detailing the Commercial Law 2006 stipulates that "fireworks of all kinds" are on the list of prohibited goods for trading.

In Joint Circular No. 06/2008 between the Ministry of Public Security, the Supreme People's Procuracy and the Supreme People's Court, it is stipulated that the act of illegally buying, selling, transporting, and storing firecrackers in quantities of 10kg or more or less, but having been administratively sanctioned, shall be prosecuted for criminal liability. If the illegal buying and selling of firecrackers across the border is carried out, criminal liability shall also be prosecuted for the crime of smuggling.

However, according to the 2014 Investment Law (effective from July 1, 2015), “fireworks of all kinds” are included in the list of “conditional investment and business sectors”. This leads to a problem: the 2014 Investment Law and the 2005 Commercial Law overlap in terms of regulated subjects.

Regarding the handling of acts of buying, selling, and transporting imported firecrackers and cigarettes, on January 26, 2016, the Supreme People's Court issued Official Dispatch No. 06 providing guidance on acts of buying, selling, and illegally transporting firecrackers and cigarettes across the border. If there are sufficient elements constituting a crime as prescribed in Article 153 (crime of smuggling), Article 154 (crime of illegally transporting goods and currency across the border) of the current Penal Code, it must be tried promptly.

However, a problem is that there are no specific guidelines for handling the act of transporting and storing fireworks domestically, which is quite common today. Meanwhile, a number of violations related to fireworks that have been discovered recently, although constituting criminal elements according to the provisions of the Penal Code, have not yet been brought to trial by the prosecution agency. This has significantly affected the fight against the acts of storing, transporting, and trading fireworks and smuggled foreign cigarettes domestically when the subjects are arrested.

Even if there is a consensus among the sectors that: It is possible to criminally handle the acts of manufacturing, storing, transporting, and trading fireworks, there is still another inadequacy arising from the provisions of the 2015 Penal Code.

Specifically: According to the provisions of Articles 190 and 191 of the 2015 Penal Code, the confiscated prohibited goods (in addition to prohibited goods such as chemicals, antibiotics, etc.) specified in Point a, Clause 1 of Articles 190 and 191) must have a value of VND 100,000,000 or more (in case the confiscated prohibited goods are worth less than VND 100,000,000, the subjects must have a criminal record for acts belonging to this group of crimes) or VND 50,000,000 or more if traded or transported across the border, in order to be criminally prosecuted. So, on what basis can we price fireworks, while prohibited goods are not allowed to be traded or traded on the market, so there are no regulations on prices?

To promptly detect, prevent and strictly handle violations of firecrackers, in addition to the drastic participation of functional forces, it is necessary to have the participation of authorities at all levels, especially commune and ward levels, and local organizations and people.

Along with that, competent authorities should soon issue legal interpretation documents to clearly distinguish the subjects and scope of regulation between the Commercial Law and the Investment Law; at the same time, there should be a mechanism to allow asset valuation in criminal proceedings for firecrackers as a basis for determining the value of prohibited goods; thereby clearly determining that the acts of storing, transporting, and trading in domestic firecrackers and foreign cigarettes have sufficient grounds for criminal prosecution for the crime of manufacturing, storing, transporting, and trading in prohibited goods according to the provisions of the 2015 Penal Code.

From September 1 to December 1, 2016, police units and localities discovered and arrested 36 cases, 38 subjects illegally buying, selling, transporting, storing, and using fireworks, confiscating 324.3 kg of explosive fireworks and 180 kg of electric fireworks.

Nguyen Hung