THE CRIME OF 'ORGANIZING THE ILLEGAL USE OF NARCOTIC SUBSTANCES' AND THE BOUNDARIES OF CRIMINAL LIABILITY FOR THE ACT OF 'ILLEGAL USE OF NARCOTIC SUBSTANCES

Abstract: The article analyzes the crime of "organizing the illegal use of narcotic substances" from the perspective of the elements of the crime, and explores the boundaries between the acts of personal use, joint use, harboring, enticing, and organizing the illegal use of narcotic substances. Based on Article 255 and Article 256a of the Penal Code, as amended and supplemented by Law No. 86/2025/QH15, the article revisits the central question: under what circumstances does the "illegal use of narcotic substances" trigger criminal liability? Furthermore, the article compares the legislative experiences of China and South Korea to propose conviction criteria aimed at avoiding two extremes: letting organizers go unpunished and mechanically criminalizing users. Keywords: organizing the illegal use of narcotic substances; illegal use of narcotic substances; Article 255; Article 256a; Official Dispatch No. 89/TANDTC-PC; drug crimes; comparative criminal law.

1. Problem Statement

Among drug-related crimes, the crime of "organizing the illegal use of narcotic substances" has a broad scope of application but is the most prone to generating debate in sentencing practice. The offender is not necessarily the drug seller, not necessarily the person directly introducing the drug into another person's body, nor necessarily the one benefiting financially. The focus of the charge lies in the fact that the person has created, arranged, coordinated, or provided conditions for others to illegally use narcotic substances.

Since the addition of Article 256a on the crime of "illegal use of narcotic substances," the issue needs to be distinguished even more accurately. While previously the act of illegally using narcotic substances was primarily approached from the perspective of administrative management, drug rehabilitation, and handling administrative violations, starting from July 1, 2025, this act can be criminalized under statutory circumstances. However, this does not mean that every case of testing positive for drugs will automatically be subject to criminal liability.

The scientific question of this article is: how must "the illegal use of narcotic substances" occur to incur criminal liability? The answer cannot rely solely on positive test results but must be placed in the relationship between personal use, co-use, harboring, enticing, and the act of organizing the illegal use of narcotic substances.

2. Vietnamese Legal Regulations:

Article 255 of the 2015 Penal Code, with Clause 1 amended by Law No. 86/2025/QH15, currently needs to be understood with the following basic content:

Article 255. Crime of organizing the illegal use of narcotic substances

1. Any person who organizes the illegal use of narcotic substances in any form shall be sentenced to between 03 and 07 years of imprisonment.

2. Committing the crime under any of the following circumstances carries a penalty of 07 to 15 years of imprisonment:

a) Committing the crime 02 or more times;

b) Against 02 or more people;

c) Against a person aged between 13 and under 18 years old;

d) Against a woman whom the offender knows is pregnant;

đ) Against a person undergoing drug rehabilitation;

e) Causing harm to another person's health with a bodily injury rate between 31% and 60%;

g) Causing a dangerous disease to another person;

h) Dangerous recidivism.

3. Committing the crime under any of the following circumstances carries a penalty of 15 to 20 years of imprisonment:

a) Causing harm to another person's health with a bodily injury rate of 61% or higher, or causing death;

b) Causing harm to the health of 02 or more people with a bodily injury rate of between 31% and 60% for each person;

c) Causing a dangerous disease to 02 or more people;

d) Against a person under 13 years old.

4. Committing the crime under any of the following circumstances carries a penalty of 20 years of imprisonment or life imprisonment:

a) Causing harm to the health of 02 or more people with a bodily injury rate of 61% or higher for each person;

b) Causing the death of 02 or more people.

5. The offender may also be fined from 50,000,000 VND to 500,000,000 VND, subjected to probation, banned from residence for 01 to 05 years, or have part or all of their property confiscated.

Article 256a is added after Article 256 of the Penal Code, directly regulating the crime of "illegal use of narcotic substances":

Article 256a. Crime of illegal use of narcotic substances

1. Any person who illegally uses narcotic substances falling under any of the following circumstances shall be sentenced to between 02 and 03 years of imprisonment:

a) Being within the period of drug rehabilitation or substitution treatment for narcotic addiction in accordance with the Law on Drug Prevention and Control;

b) Being within the period of post-rehabilitation management in accordance with the Law on Drug Prevention and Control;

c) Being within a 02-year period from the expiration date of post-rehabilitation management and currently under the management of illegal drug users in accordance with the Law on Drug Prevention and Control;

d) Being within a 02-year period from arbitrarily terminating voluntary drug rehabilitation or substitution treatment for narcotic addiction in accordance with the Law on Drug Prevention and Control.

2. Recidivism of this crime carries a penalty of 03 to 05 years of imprisonment.

From the two articles above, it can be seen that current criminal policy establishes two tiers of responsibility. The first tier is the responsibility of those who illegally use narcotic substances themselves in special circumstances under Article 256a. The second tier is the responsibility of those who organize, facilitate, coordinate, or provide conditions for others to illegally use narcotic substances under Article 255. These two tiers must not be equated.

3. The concept of "illegal use of narcotic substances" and the limits of criminalization

The 2021 Law on Drug Prevention and Control defines an illegal drug user as a person who acts to use narcotic substances without the permission of a competent professional person or agency and tests positive for narcotics in their body. This concept holds significance in identifying legal and managerial status, but it is not always a sufficient basis for criminal prosecution.

According to Article 256a, the act of illegal drug use only becomes a crime when the user falls into one of the special legal statuses: undergoing rehabilitation or substitution treatment; being under post-rehabilitation management; being within a 02-year period from the expiration of post-rehabilitation management and currently under the management of illegal drug users; or being within a 02-year period from arbitrarily terminating voluntary rehabilitation/substitution treatment. Thus, a positive result is a factual condition to identify the act, but the legal condition for criminal prosecution also depends on the management, rehabilitation, or recidivism status as prescribed by law.

The point to emphasize is: "self-use" is not synonymous with "organizing use." If a person only introduces narcotic substances into their own body, without facilitating use for others, and without providing the location, drugs, paraphernalia, users, means, or administration, they cannot automatically be accused of being an organizer simply because they are present in a group of users.

4. Constitutive elements of the crime of "organizing the illegal use of narcotic substances"

4.1. Object and target of impact

The crime of organizing the illegal use of narcotic substances infringes upon the State's management regime for narcotic substances, while simultaneously violating public order, social safety, and community health. Unlike the crime of illegal drug use, Article 255 does not solely address the status of the user but penalizes the act of causing another person's drug use to be organized, prepared, or guaranteed to be executed.

4.2. Objective aspect

Official Dispatch No. 89/TANDTC-PC dated June 30, 2020, provides guidance in the following direction: organizing the illegal use of narcotic substances is not synonymous with "organized crime"; organizing the illegal use of narcotic substances is understood as carrying out one of the acts of arranging, assigning, or directing people or means; providing drugs, locations, means, or paraphernalia... to carry out the illegal use of narcotic substances.

According to the guidelines cited in practice, a person acting under the command, assignment, or direction of another can also be an accomplice to this crime if they commit the acts of: illegally introducing narcotic substances into another person's body; illegally providing narcotic substances for others to use; preparing narcotic substances; preparing a location; preparing paraphernalia or means; or finding drug users.

4.3. Subjective aspect

The crime of organizing the illegal use of narcotic substances is committed with intentional fault. However, the issue is not only that the offender knows there are drugs and knows there are users, but it must also be proven that their will is directed towards causing others to illegally use narcotic substances. This is the decisive point for distinguishing between a beneficiary, a co-user, an insignificant helper, a harborer, and an organizer.

Some practical viewpoints emphasize that if the purpose, will, or intentional acceptance of the accused in introducing the substance

5. Official dispatches, professional guidance, and reference value

The above-mentioned official dispatches are not normative legal documents in the strict sense, but they have professional orientation value and reflect the legal application guidelines of the central judicial agencies. Therefore, when used in litigation or research activities, it is necessary to distinguish between the mandatory value of the law and the reference/explanatory value of the official dispatches.

6. Boundaries between "co-using", "harboring", "enticing", and "organizing the use"

6.1. Co-using illegal narcotic substances

The case where multiple people pool money, buy drugs together, and use them together in the same space does not automatically constitute the crime of organizing the illegal use of narcotic substances for everyone. It is necessary to consider the actual roles: who is the initiator, who buys the drugs, who prepares the location, who prepares the paraphernalia, who directs or distributes, who invites others, and who is merely a beneficiary.

For example: A, B, and C agree to pool money to buy drugs and use them together. A only transfers money to B, does not know where B buys them, does not prepare paraphernalia, does not invite more people, and does not distribute the drugs. In this case, if there is no evidence proving a role in facilitating others' use, handling A as an accomplice in organizing the use needs to be carefully considered.

6.2. Harboring the illegal use of narcotic substances

The crime of harboring the illegal use of narcotic substances under Article 256 intersects with Article 255 regarding the location element. Official Dispatch 02/TANDTC-PC in 2021 emphasizes that the provisions of Article 256 do not exclude the prosecution of a drug addict who commits the act of harboring the illegal use of narcotic substances, if the constitutive elements are met and it does not fall under Article 255. Therefore, when a person owning a location merely rents, lends, allows others to stay, or knows and lets others use drugs, but does not direct, prepare drugs, paraphernalia, or organize the users, the conviction should lean towards Article 256 instead of Article 255.

6.3. Enticing others to illegally use narcotic substances

The act of inviting, seducing, or arousing the desire to use drugs may fall under the crime of enticing others to illegally use narcotic substances if it satisfies Article 258. Official Dispatch 89/TANDTC-PC also distinguishes the case of seducing or arousing others to use drugs from the case of addicts pooling money and using together. Therefore, a mere invitation is not always organizing; conversely, preparing material conditions and coordinating the use can go beyond the scope of enticement to become organization.

6.4. Organizing the illegal use of narcotic substances

Organizing the illegal use of narcotic substances is an act of "creating conditions" for others to use. The important sign is not how many people use together, but whether the accused plays a proactive role in causing the use by others to occur, take place favorably, or be maintained.

7. Comparison of Chinese and South Korean Law

7.1. China: distinguishing the user and the person causing others to use

The Criminal Law of China directly handles acts affecting others' drug use. Article 353 stipulates that anyone who lures, instigates, or deceives others into using or injecting drugs shall be criminally punished; if coercing others to use or inject drugs, the penalty is higher; if the victim is a minor, the punishment is more severe. Article 354 stipulates that anyone who provides a venue for others to use or inject drugs is also subject to criminal handling. Article 355 handles cases where a person legally qualified to manage and use state-controlled narcotic drugs or psychotropic substances illegally provides them to drug users.

Chinese experience shows that the criminal focus is not only placed on the user but clearly on acts that cause others to use: luring, deceiving, coercing, providing venues, and providing controlled addictive substances. This structure shares similarities with Articles 255, 256, 257, and 258 of Vietnam.

7.2. South Korea: broad control model for drug "handling" acts

South Korean law tends toward stricter and broader control. The Narcotics Control Act of South Korea aims to protect public health and social order by controlling narcotic drugs, psychotropic substances, marijuana, and precursors. The law prohibits people without drug handling qualifications from committing acts such as possession, use, management, transportation, import, export, production, trading, delivery, or provision, unless permitted by law or under a lawful medical prescription.

Compared to Vietnam, South Korea criminalizes the acts of illegal use, possession, and handling themselves much more broadly. Meanwhile, Vietnam, following Law No. 86/2025/QH15, opts for an intermediate model: not criminalizing all cases of illegal drug use, but criminalizing users in special risk groups under Article 256a; while simultaneously penalizing strictly those who organize, harbor, coerce, or entice others to use.

8. Answering the central question: how must "illegal use of narcotic substances" occur to incur criminal liability?

It can be answered at the following three levels:

1. The first level - use as an administrative management act: A person who commits an act of illegally using narcotic substances and tests positive is identified as an illegal drug user under the Law on Drug Prevention and Control. However, if they do not fall under the circumstances of Article 256a and do not commit other drug-related acts, the handling mainly falls under management, rehabilitation, or administrative sanction mechanisms.

2. The second level - use constituting an independent crime under Article 256a: An illegal drug user is prosecuted for criminal liability when they are undergoing rehabilitation/substitution treatment, under post-rehabilitation management, within a 02-year period under post-rehabilitation management regulations, or after arbitrarily terminating voluntary rehabilitation/substitution treatment. This is the case where "use" becomes an independent crime.

3. The third level - use associated with the act of organizing for others to use: If the user simultaneously prepares drugs, locations, paraphernalia, calls people, invites more people, distributes, guides, directs, collects money, or creates material-mental conditions for others to use, criminal liability may arise under Article 255 or related crimes. In this instance, this person is handled not simply because they "used," but because they caused others to illegally use narcotic substances.

From there, the practical criteria can be generalized as follows: "use" is the act of illegally introducing narcotic substances into one's own body; "organizing the use" is the act of facilitating, preparing, coordinating, or ensuring the illegal introduction of narcotic substances into another person's body. Only when crossing the boundary of personal behavior and shifting to a role regarding others' use does liability under Article 255 arise.

9. Suggested criteria set for determining Article 255 crimes

10. Recommendations for perfection and uniform application

First, there needs to be a resolution or uniform guidance from the Judicial Council of the Supreme People's Court on the signs of "organizing" in Article 255 after Article 256a is added. This guidance needs to clearly distinguish the organizer, assisting accomplices, beneficiaries, mere co-users, and harborers.

Second, a uniform approach is needed for cases of "addicts letting other addicts co-use." Subsequent official dispatches tend not to exclude addicts from the subjects of Article 255. However, to avoid mechanical criminalization, the decisive criterion must still be the organizing role in others' use, not the status of being addicted or non-addicted.

Third, in the case file, it is necessary to standardize the mandatory group of evidence: the drug source; preparers; location preparers; paraphernalia used; testimonies regarding inviting, distributing, and directing; camera data, messages, money transfers; test results; evidence seizure records; and evidence of the user's legal status if considering Article 256a.

Fourth, caution is needed with the circumstance "against 02 or more people." Argumentatively, it is advisable to determine the number of people benefiting from the organized use, rather than automatically counting all accomplices as "people organized to use" if they are simultaneously organizers or helpers. This understanding helps ensure the differentiation of criminal liability according to the exact role.

11. Conclusion

The crime of "organizing the illegal use of narcotic substances" is a necessary charge to handle acts that spread, maintain, or commercialize drug use. However, the necessity of the charge does not allow mechanically expanding criminal liability to everyone present or co-using drugs.

After Article 256a is added, the question "how must illegal use of narcotic substances occur to incur criminal liability?" must be answered clearly: a self-user is only criminally handled when falling under the statutory circumstances in Article 256a; whereas a user who simultaneously organizes, prepares, coordinates, or provides conditions for others to use is considered under Article 255 or related charges. This limitation ensures severe punishment for organizers, enticers, and harborers while avoiding the arbitrary criminalization of drug users when statutory conditions are not met.

Notes and References

(1)Law No. 86/2025/QH15 amending and supplementing a number of articles of the Penal Code, passed by the National Assembly on June 25, 2025, taking effect from 00:00 on July 1, 2025; see Clause 19 and Clause 20 of Article 1 on Article 255 and Article 256a.

(2) Law on Drug Prevention and Control 2021, Article 2 Clause 10: an illegal drug user is a person who acts to use narcotic substances without the permission of a competent professional person or agency and tests positive for narcotic substances in their body.

(3) Official Dispatch No. 89/TANDTC-PC dated June 30, 2020 of the Supreme People's Court on announcing the results of online guidance on some difficulties in adjudication.

(4) Official Dispatch No. 02/TANDTC-PC dated August 2, 2021 of the Supreme People's Court on providing guidance on some difficulties in adjudication.

(5) Official Dispatch No. 5442/VKSTC-V14 dated November 30, 2020 of the Supreme People's Procuracy on providing guidance on some difficulties and obstacles related to the provisions of the 2015 Penal Code, Criminal Procedure Code, and execution of criminal judgments.

(6) Criminal Law of the People’s Republic of China, Articles 353, 354 and 355; English version published on the website of the Supreme People’s Procuratorate of the PRC and English sources of Chinese law.

(7) Narcotics Control Act of the Republic of Korea, Articles 3, 4, 5 and related penal provisions; English version on the Korean Law Information Center/Korea Legislation Research Institute.

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