Under Article 19.3 of the Penal Code 2015 of Vietnam, if a defender (người bào chữa), in the course of defending for an accused person, has knowledge of a crime that was committed or has been committed or is under the process of preparation by such person, the defender will not bear criminal liability for failure to report such crimes to the authorities unless such crimes are extremely serious crimes or crimes relating to the national security. This appears to be a watered-down version of the attorney-client privilege in other jurisdictions. The previous Penal Code 1999 does not clearly exempt a defender from criminal liability for failure to report crimes. The exemption for a defender under Article 19.3 is first introduced in the Penal Code 2015. When applying Article 19.3 in the context of corporate criminal liability, one should take note of the followings:

A defender is defined as a person appointed by another person (an individual or a commercial legal person) who is alleged to commit a crime to defend him/her in accordance with Article 72 of the Criminal Proceedings Code 2015. A lawyer will become a defender when that lawyer is appointed in accordance with the proceedings (Appointed Time). Therefore, before the Appointed Time, a lawyer is not entitled to the privilege exemption of Article 19.3.
Whether before or after Appointed Time, a lawyer for a commercial legal person in a criminal case is not entitled to the privilege exemption of Article 19.3 in respect of the following crimes (1) smuggling, (2) manufacturing or trading counterfeit food or food additives, and (3) manufacturing or trading counterfeit medicines for treatment or prevention of diseases; and
Before the Appointed Time, lawyers may be subject to criminal liability for failure to report the following crimes if the lawyers have “clear knowledge” (biết rõ) of such crimes: (1) financing terrorism, (2) money laundering, (3) illegally trafficking goods or money across the border, (4) manufacturing or trading banned goods, (5) hoarding or, transporting banned goods, (6) manufacturing or trading counterfeit goods, (7) manufacturing or trading counterfeit food or food additives, (8) manufacturing or trading counterfeit medicines for treatment or prevention of disease, (9) manufacturing or trading counterfeit animal feeds, fertilizers, veterinary medicine, pesticides, plant varieties, animal breeds, (10) speculating, and (11) destructing forest.

This post is contributed by Tran Thi Ha Phuong, a legal intern at Venture North Law, and Ha Thi Dung, a partner at Venture North Law.

Vietnam Business Law