CORPORATE CRIMINAL LIABILITY IN VIETNAM

The Penal Code 2015, which takes effect from 1 January 2018, for the first time introduces criminal liabilities to legal entities in Vietnam. Before the Penal Code 2015, only individuals may be subject to criminal liabilities in Vietnam. This is a major change to the criminal law system in Vietnam. The attached slides are summary of our discussion about corporate criminal liability regime in Vietnam in Volume 2 of Principles of Vietnam’s Enterprises Law.

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Provisions of the Criminal Code 2015 regarding bribery crimes in Vietnam

1.1. Article 354 of the Criminal Code 2015 imposes criminal liability on the act of receiving bribes (tội nhận hối lộ), which is defined as an act, among others, of a person who holds an official position or “power” and directly or indirectly has received or will receive any of the following benefit for himself/herself or for other person/organisation:

1.1.1. money, properties or other “material benefit” in any form, which has a value of VND 2,000,000 (approx. USD100) or more; and

1.1.2. non-material benefit

with the intent of taking advantage of his/her official position or power in order to perform or refrain from performing certain acts for the benefit of, or as requested by, the person who offers the bribe. The Criminal Code 1999 considers only monies, properties or other material interest as bribes.

Corporate criminal liability in Vietnam – Entities subject to criminal liability

Under the Penal Code 2015, only “commercial legal person” (pháp nhân thương mại) could be subject to criminal liability. A commercial legal person is a legal person with the main objective of “seeking profit” which is distributed to its members. However, the concept of commercial legal person may raise several issues as follows:

The Criminal Proceedings Code 2015 only refers generally to “legal person”. It is not clear why the Criminal Proceedings Code 2015 does not use the term commercial legal person despite being drafted and passed at the same time as in the Penal Code 2015.
A commercial legal person’s main objective is “seeking profit” (tìm kiếm lợi nhuận). With the exception of “social enterprise” (doanh nghiệp xã hội), an enterprise in Vietnam is established for “the purpose of doing business” (mục đích kinh doanh). And “doing is business” has the purpose of “generating benefit” (sinh lợi). There is a slight difference between the use of words in the Enterprise Law 2014 and the Civil Code 2015. However, presumably, “generating benefit” under the Enterprise Law 2014 is intended to have the same meaning as “seeking profit” under the Civil Code 2015.
The Civil Code 2015 considers social enterprises to be non-commercial legal person. Under the Enterprise Law 2014, a social enterprise is set up to solve social or environment issues for public benefit. However, a social enterprise still has the objective of making profit and still distributes profit to its members as long as it retains at least 51% of its profit for its social purpose. In practice, a social enterprise can still commit the crimes which apply to other enterprises (e.g. polluting the environment or tax evasion). Therefore, in the author’s opinion, the classification of social enterprises being non-commercial legal person under the Civil Code 2015 is a mistake and social enterprises should still be subject to criminal liability under the Penal Code 2015.

Online publication of court’s judgments in Vietnam

In March 2017, the Supreme People’s Court has adopted Resolution No.03 on the publication of judgments and decisions via e-portals of the court (Resolution 03/2017). Recently, the Supreme People’s Court also issues an Official letter no. 144 dated 4 July 2017 to the people’s courts in all levels on implementation of Resolution 03/2017 (Official Letter 144/2017).

Previously, there are some judgments of judicial review or new trial procedure published on e-portal of the Supreme People’s Court. However, under Resolution 03/2017, from 1 July 2017, enforceable judgments and decisions of the people’s courts must be made available on the e-portal of the court (https://congbobanan.toaan.gov.vn/) within 30 days from the date on which such judgments and decisions take effect, except the following cases:

Vietnam Business Law