JOINT CIRCULAR No. 10/TTLT OF DECEMBER 31, 1996 GUIDING THE HANDLING OF ILLEGAL MOTORBIKE RACES

At present, illegal racing, especially motorbike racing, has become more and more complicated, disturbing public order, violating the regulations on land and urban traffic order and safety, threatening the life and health of the people, property of individuals, organizations or the State. In the recent past, because the criminal handling of such violations of law by the Police, the Procuracies and the Courts was still disparate and lacked unity, the efficiency of law in is still limited. For this reason, the Ministry of the Interior, the Supreme People?s Procuracy and the Supreme People?s Court have reached agreement to provide the following guidance on handling the acts of illegal racing:

I.- HANDLING OF ACTS OF ILLEGAL RACING

An illegal racer referred to in this Circular is a person who drives a motorbike on a land road with the aim of racing with another or other motorbike drivers without permission from the competent agency.

Also regarded as an illegal racer in the capacity of an accomplice the organizer (who masterminds, heads or commands an illegal race); the instigator (who incites, induces or instigate) others to engage in illegal racing; those who assist (providing material or spiritual conditions) for the illegal race; those who sit together with the illegal racer with the same intention. For instance, before or after taking his/her seat on the motorbike a person knows that the driver will take part in the race yet he/she still sits with intent to take part in the race, or before or after taking his/her seat on the motorbike the person does not know that the driver would take part in the race but after the latter begins the race he/she encourages or cheers on the racer...

If after taking his/her seat on the motorbike a person does not know that the driver would take part in the race and as they proceed on the road the driver takes part in the race while he/she has no way of getting down and does not encourage or cheer on the driver, he/she shall not be regarded as an illegal racer.

a/ Any illegal motorbike race with the participation of two and more motorbikes shall be regarded as an act of causing public disorder and the illegal racers shall be examined for penal liability on charge of causing public disorder as stipulated in Clause 1, Article 198 of the Penal Code.

- The organizer of an illegal motorbike race and those who instigate others to take part in an illegal race shall be examined for penal liability under Clause 2, Article 198 of the Penal Code.

b/ In case an illegal racer causes loss of life and health to another or others or causes serious property damage which, however, is due to inadvertence, besides being examined for penal liability under Clause 1, Article 198 of the Penal Code (if he/she is the organizer or instigator, Clause 2, Article 198 of the Penal Code shall apply), he/she shall be also examined for penal liability under Article 186 of the Penal Code.

c/ If the racer intentionally causes loss of life or health to another or others or causes serious property damage, besides being examined for penal liability under Article 198 of the Penal Code, he/she shall also examined for penal liability under the corresponding articles of the Penal Code on this other crime (Article 101, Article 109, Article 138 or Article 160).

d/ If the illegal race involves betting in money or in kind the racers shall, beside being examined for penal liability under Clause 1 or Clause 2 of Article 198 of the Penal Code, also be examined for penal liability under Article 200 of the Penal Code.

e/ An illegal racer who resists the person on duty shall, besides being examined for penal liability under Clause 2, Article 198 of the Penal Code, also be examined for penal liability for the crime of resisting the person on duty under Article 205 of the Penal Code.

f/ An illegal racer who resists the person on duty and causes injury or death to him/her shall, besides being examined for penal liability under Clause 2 Article 198 of the Penal Code, be examined for penal liability under the corresponding articles (Article 101 and Article 109) of the Penal Code, depending on each specific case.

- If the motorbike used in an illegal race belongs to the racer, it shall be confiscated and remitted to the State fund (under Point a, Clause 1, Article 33 of the Penal Code and Point a, Clause 2, Article 58 of the Criminal Proceedings Law).

- If the motorbike used in the illegal race is not owned or lawfully managed by the racer, the case shall be handled according to each specific circumstance. More concretely:

+ If the owner knows that the racer uses his/her motorbike to take part in a race but still lends it to him/her or allows him/her to use it (for instance, the motorbike belongs to the parents and the parents allow the child to use it. The child uses the motorbike to take part in an illegal race. Though they know it the parents continue to allow the child to use the motorbike). In this case the motorbike shall be confiscated and remitted to the State fund (as stipulated in Point b, Clause 1, Article 33 of the Criminal Proceedings Law).

+ If the owner does not know that the racer uses his/her motorbike to take part in the race the motorbike shall be returned to the owner (as stipulated in Clause 2, Article 33 of the Penal Code, and Point b, Clause 2, Article 58 of the Criminal Proceedings Law).

+ If the motorbike used in the race is an appropriated motorbike, it shall be returned to the owner or the lawful manager (as stipulated in Clause 2, Article 33 of the Penal Code and Point b, Clause 2, Article 58 of the Criminal Proceedings Law).

+ If the owner or lawful manager of the motorbike used in the race cannot be identified, the motorbike shall be confiscated and remitted to the State fund.

In all circumstances the illegal racer shall be stripped of his/her right to use the driving license if he/she has been granted with one.

In all circumstances the person taking part in an illegal motorbike race shall be arrested as stipulated in Article 64 of the Criminal Proceedings Law concerning the arrest of persons caught in the act of crime committing. The arrest, temporary custody and temporary detention of an illegal motorbike racer and the detention of the concerned motorbike must comply with the provisions of law.

II.- RESPONSIBILITIES OF THE POLICE, PEOPLE?S PROCURACIES AND PEOPLE?S COURTS

To help in the fight against illegal motorbike racing, the Police, the People?s Procuracies and the People?s Courts must be firm in the handling of this kind of violation of law. Depending on concrete situations, some of these violations should be classed as typical criminal cases and shall be dealt with according to the Joint Circular No.01-TTLN of October 15, 1994 of the Ministry of the Interior, the Supreme People?s Procuracy and the Supreme People?s Court "Guiding the settlement of typical criminal cases".

III.- IMPLEMENTATION EFFECT

1. This Circular takes effect on the date of its issue.

2. With regard to the acts of illegal racing which took place prior to the issue of this Circular but of which the investigation, prosecution and trial had not been finished prior to the issue of the Circular or their investigation, prosecution and trial are conducted after the issue of the Circular, this Circular shall apply during the investigation, prosecution and trial.

3. With regard to the cases which had been tried at the first instance or appeal court prior to the issue of this Circular, if a protest has been lodged proposing heavier penalties, the appeal court trial and retrial shall apply as provided for in this Circular.

4. With regard to the cases which have taken legal effect before the issue of this Circular and those which have been judged according to earlier stipulations, the stipulations in this Circular shall not apply to lodge a protest according to the retrial procedures.

In the process of implementing this Circular, should any question arises, the investigating, prosecuting and trial agencies shall immediately report it to the Supreme People?s Court, the Supreme People?s Procuracy and the Ministry of the Interior with a view to timely guidance.

For the Minister of the Interior

Vice Minister

For the President of the Supreme People?s Procuracy

Vice President

For the President of the Supreme People?s Court

Vice President