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.
1.2. 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:
1.2.1. Persons subject to the crime: Bribery is classified in Article 352 of the Criminal Code 2015 as a crime related to a person who is assigned to perform a “public task” or “duty” and has a certain authority in performing such a “public task” (công vụ) or “duty” (nhiệm vụ). The person receiving the bribe must have authority to address the request by the person offering the bribe. Unlike the Criminal Code 1999, the Criminal Code 2015 introduces a broader scope of sectors and individuals subject to a bribery crime. Particularly, the Criminal Code 2015 imposes criminal liability on the act of receiving bribes not only by assigned persons in the public sector (e.g. officials working in the state authorities) but also by ones in the private sector (e.g. managers, directors working for private companies).
1.2.2. Benefits used for bribery: Under Vietnamese laws, in addition to monies, properties or other material interest which has certain economic value, the Criminal Code 2015 contemplates the “non–material interest” (e.g. sexual relationship, job promotion, etc.) as a type of bribe.
1.2.3. Agreement on bribery action: There must be an 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.
1.3. Under Article 364 of the Criminal Code 2015, any person who offers directly or indirectly a bribe of VND 2,000,000 or more or a non–material benefit commits a criminal offence of giving a bribe (tội đưa hối lộ). This provision suggests that any act of giving or offering a bribe valued less than VND 2,000,000 should not be subject to criminal liabilities of bribery regardless what consequences ensue or how many times it is committed. Under Article 289 of Criminal Code 1999, 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) will be subject to criminal liability of giving a bribe.
1.4. Article 364 of the Criminal Code 2015 introduces a description of the crime of “giving bribery”, which is defined as an act, among others, of using money, properties or other “material benefit”, which has a value of VND 2,000,000 or more or a non–material benefit, 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.
1.5. Different from the bribe receiving crime, the person subject to the bribe giving crime does not need to hold an official position or power. 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 person holding official position or power.
1.6. The Criminal Code 2015 will take effect from 1 January 2018 and apply to all crimes committed in Vietnam, including those committed by foreigners, except for foreigners entitled to diplomatic immunity. Unlike Criminal Code 1999, the Criminal Code 2015 imposes criminal liability to not only individuals but companies also. However, it is not clear why under the Criminal Code 2015, a commercial legal person could not be subject to criminal liabilities on bribery which usually happen to companies in Vietnam.
This post is contributed in parts by Nguyen Hoang Duong, a trainee at Venture North Law Limited.