A notable change of the new Anti-Corruption Law 2018, among other things, is that the Anti-Corruption Law 2018 applies to not only State agencies, organizations, units and public officials, but also to non-state enterprises, organizations, and officials. However, a closer reading of Article 22 on the giving and receipt of gifts under Anti-Corruption Law 2018 may indicate otherwise. In particular,
(a) Article 22.2 provides: “Agencies, organizations, units, and public officials are not allowed to directly or indirectly receive gifts in any form from agencies, organizations, units, individuals which are relating to the affair which they are handling or fall under their management”; and
(b) Article 3.9 of the Anti-corruption Law 2018 defines “agencies, organizations, units” under the Anti-corruption Law 2018 as agencies, organizations, units of the State.
Based on the definition in Article 3.9 and the wording of Article 22.2, it is arguable that the regulations and restrictions regarding gifts-giving under the Anti-corruption Law 2018 only apply to State-owned enterprises, state agencies, organizations, units, and public officials but not to non-state enterprises, organizations, and officials.
That said, a prudent approach is to consider the above is technical drafting mistake and that Article 22 of the Anti-corruption Law 2018 applies to all agencies, organizations, and units, whether they belong to the State or not. According to Article 364.6 of the Penal Code 2015,
(a) a party giving gift with purpose to influence officials to perform or not to perform certain tasks will be charged with bribery crime if (i) the value of such gift is more than VND two million, or (ii) less than VND two million, but the giving of such gift causes serious consequences; and
(b) the regulations on bribery crime also apply to any person who bribes or promises to bribe officials in a non-state enterprise or organization.
This post is written by Nguyen Thuc Anh and edited by Nguyen Quang Vu.