Administrative handling in the prevention and fight against prostitution

(Baonghean) -* Ask:In case the victim is sold and cannot return and is considered missing. Is this considered a serious consequence?(Le Van Tan - Que Phong, Nghe An)

Reply:The victim is sold, controlled or for some reason has no information about them, no one knows where they are, whether they are alive or dead. In practice, some courts consider this an aggravating circumstance of “causing serious consequences” according to Point k, Clause 1, Article 48 of the Penal Code (CPC) (for the crime of human trafficking), and some courts do not consider it a circumstance of “causing serious consequences”. This issue has not yet been guided by the Supreme People's Court. However, in our opinion, the fact that the victim is sold and does not return is considered missing, or even considered dead, is serious, so applying the circumstance of serious consequences is more appropriate.

Particularly in the case of children being sold and not being able to return, not knowing where they are, whether they are alive or dead, if this is considered a serious consequence, it is a framing circumstance in Point k, Clause 2, Article 120 of the Penal Code. This issue is very important because it greatly affects the application of penalties. Currently, the Supreme People's Court is coordinating with the Supreme People's Procuracy to study and issue a Joint Circular guiding the application of Articles 119 and 120 of the Penal Code. The draft of the Joint Circular also does not mention this issue. We hope that this is a problem, and guidance is needed to unify the perception and correct application of the law among the courts in particular and between the courts and the Procuracy in general.

* What are the principles for handling administrative violations in preventing and combating prostitution?
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Reply:According to the provisions of Article 14, Decree No. 178/2004/ND-CP of the Government detailing a number of articles of the Ordinance on Prevention and Control of Prostitution:

1. Any violation of the law on prostitution prevention and control must be detected and handled promptly and strictly in accordance with the provisions of law. Organizations that violate the law on prostitution prevention and control shall be subject to administrative sanctions depending on the nature and severity of the violation. Individuals that violate the law on prostitution prevention and control shall be subject to disciplinary action, administrative sanctions or criminal prosecution depending on the nature and severity of the violation.

2. The handling of violations depends on the authority of the sectors as prescribed by law. In cases where violations fall under the sanctioning authority of many people in different sectors, the sanctioning authority belongs to the Chairman of the People's Committee at the competent level where the violation occurred.

3. The handling of administrative violations of the law on prostitution prevention and control shall be conducted by competent persons specified in Articles 15 and 16 of the Decree.

Individuals and organizations shall be administratively sanctioned for violations of the law on prostitution prevention and control when committing violations specified in Chapter III of this Decree.

4. An administrative violation of prostitution prevention and control shall be punished only once. A person who commits multiple violations shall be punished for each violation. If multiple people commit the same violation, each violator shall be punished.

5. The handling of administrative violations in the prevention and combat of prostitution must be based on the nature, level of violation, personal background of the violator and mitigating and aggravating circumstances to decide on the main and additional penalties and apply appropriate handling measures.

6. The person with authority to handle administrative violations of the law on prostitution prevention and control must handle violations within his/her authority. For violations exceeding his/her authority or violations showing signs of crime, he/she must make a record and transfer the record together with related documents, exhibits, and means of violation (if any) to the competent authority to handle administrative violations or the competent criminal prosecution agency.

Thao Nhi (Synthesis)