Article 279 of the Criminal Code 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 money, properties or other “material benefit” in any form, which has a value of VND 2,000,000 (approx. USD100) or more “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”.
Although court precedents are not regarded as laws in Vietnam and are not easily accessible by the public, various commentaries on the crime of bribery suggest that the elements of the crime of receiving bribery include, among other things, the following:
- Persons subject to the crime: Bribery is classified in Article 277 of the Criminal Code as a crime related to a person who is assigned to perform a “public task” and has certain authority in performing such a “public task”. The person receiving the bribe must have authority to address the request by the person offering the bribe. Private bribery does not constitute a bribery crime under the current Criminal Code. But in practice, the authorities seem to enforce private bribery and are contemplating to formalise private bribery in the next amendment of the Criminal Code;
- Assets used for bribery: Assets used for bribery under Vietnamese law can be monies, properties or other material interest which has certain economic value. The assets used for bribery need not to be owned by the person giving the bribery; and
- Agreement on bribery action: There must be agreement between the person giving the bribery and the person receiving the bribery that the person receiving the bribery will perform or refrain from performing certain acts for the benefit of, or as requested by, the person giving the bribe.
Under Article 289 of the Criminal Code, any person who offers a bribe of VND 2,000,000 or more (or less than VND 2,000,000 if serious consequences ensue or if “it” is committed more than once) commits a criminal offence of giving a bribe (tội đưa hối lộ). Article 289 of the Criminal Code does not describe what will constitute the crime of “giving bribery”. However, based on the description of the bribe receiving crime, bribe giving crime can be defined as an act, among others, of using money, properties or other “material benefit” in any form, which has a value of VND 2,000,000 (approx. USD100) or more, to directly or indirectly give or offer to give to a person who holds an official position or power, with the intent of having such person taking advantage of his/her official position or power to perform or refrain from performing certain acts for the benefit of, or as requested by, the person who offers the bribe.
Different from the bribe receiving crime, the person subject to the bribe giving crime does not need to be a public official. In addition, there is no need for an agreement on bribery action between the person receiving the bribe and the person giving the bribe. That being said, there still needs to be an intention by the person giving the bribe to obtain some direct or indirect benefit from the action of the relevant public officials.
The Criminal Code applies to all crimes committed in Vietnam, including those committed by foreigners, except for foreigners entitled to diplomatic or consular privileges. The Criminal Code only imposes criminal liability to individuals and does not impose criminal liability on companies.