The Penal Code of 2015 (amended and supplemented in 2017 – hereinafter referred to as the Penal Code), which came into effect on January 1, 2018, for the first time stipulates the criminal liability of commercial legal entities.
1. For the first time, Vietnam has stipulated criminal liability for commercial legal entities.
The provisions on criminal liability of commercial legal entities are concentrated in Chapter XI of the Penal Code, comprising 16 articles (from Article 74 to Article 89), and in 08 other articles in the General Provisions section of the Code, as well as 33 articles in the Specific Crimes section of the Code. This is a prominent and groundbreaking innovation in our country's criminal policy, changing traditional perceptions of crime and punishment.
The criminal liability of legal entities is a new and highly complex issue; therefore, to ensure prudence in formulating new policies, and based on the experience of several countries, the 2015 Penal Code clearly defined the limits of application of the criminal liability of legal entities in a narrow manner, both in terms of the subjects and the types of crimes for which legal entities are held criminally liable…www.expertis.vn
2. What is a COMMERCIAL LEGAL ENTITY?
According to Article 74 of the 2015 Civil Code:
Article 74. Legal Entities
1. An organization is recognized as a legal entity when it meets the following conditions:
a) Established in accordance with the provisions of this Code and other relevant laws;
b) Having an organizational structure as prescribed in Article 83 of this Code;
c) Possess assets independent from other individuals and legal entities and be solely responsible for their liabilities with their own assets;
d) To participate in legal relationships independently in one's own name.
2. Every individual and legal entity has the right to establish a legal entity, except where the law provides otherwise.
Article 75. Commercial legal entities
- A commercial legal entity is a legal entity whose primary objective is to seek profit, and that profit is distributed to its members.
- Commercial legal entities include businesses and other economic organizations.
- The establishment, operation, and termination of commercial legal entities shall be governed by the provisions of this Code, the Enterprise Law, and other relevant laws.
Article 76. Non-commercial legal entities
- A non-commercial legal entity is a legal entity whose primary objective is not to seek profit; if it does generate profit, it is not to distribute it to its members.
- Non-commercial legal entities include state agencies, people's armed forces units, political organizations, socio-political organizations, socio-professional organizations, social organizations, social-professional organizations, social funds, charitable funds, social enterprises, and other non-commercial organizations.
- The establishment, operation, and termination of non-commercial legal entities shall be governed by the provisions of this Code, laws on the organization of the state apparatus, and other relevant legal provisions.
Criminal liability of commercial legal entities 2018
The Criminal Code stipulates
Article 2. Basis of criminal liability
2. Only commercial legal entities that commit an offense as stipulated in Article 76 of this Code shall be held criminally liable.
Article 3. Principles of handling
2. For commercial legal entities that commit crimes:
a) All criminal acts committed by commercial legal entities must be detected promptly and dealt with quickly and fairly in accordance with the law;
b) All commercial legal entities that commit crimes are equal before the law, regardless of ownership form or economic sector;
c) Severely punish commercial legal entities that commit crimes using sophisticated methods, with a professional nature, and intentionally causing exceptionally serious consequences;
d) Leniency shall be granted to commercial legal entities that actively cooperate with responsible authorities in detecting crimes or in the process of resolving cases, voluntarily rectify or compensate for damages caused, and proactively prevent or remedy the consequences.
Article 33. Penalties for commercial legal entities committing crimes
1. The main penalties include:
a) Fine;
b) Temporary suspension of operations;
c) Permanent suspension of operations.
2. Additional penalties include:
a) Prohibition of business activities or operations in certain fields;
b) Prohibition of fundraising;
c) Fines, when not applied as the primary penalty.
3. For each crime, the offending commercial legal entity shall be subject to only one principal penalty and may be subject to one or more supplementary penalties.
Article 74. Application of provisions of the Criminal Code to commercial legal entities committing crimes.
Commercial legal entities that commit crimes shall be held criminally liable in accordance with the provisions of this Chapter; and in accordance with other provisions of Part One of this Code that are not contrary to the provisions of this Chapter.
Article 75. Conditions for criminal liability of commercial legal entities
1. A commercial legal entity shall only be held criminally liable when the following conditions are met:
a) The criminal act was committed in the name of a commercial legal entity;
b) The criminal act was committed for the benefit of a commercial legal entity;
c) The criminal act was committed under the direction, management, or approval of a commercial legal entity;
d) The statute of limitations for criminal prosecution as stipulated in Clauses 2 and 3 of Article 27 of this Code has not yet expired.
2. The criminal liability of a commercial legal entity does not preclude the criminal liability of an individual.
Article 76. Scope of criminal liability of commercial legal entities
Commercial legal entities shall be held criminally liable for offenses stipulated in one of the following Articles: 188, 189, 190, 191, 192, 193, 194, 195, 196, 200, 203, 209, 210, 211, 213, 216, 217, 225, 226, 227, 232, 234, 235, 237, 238, 239, 242, 243, 244, 245, 246, 300, and 324 of this Code.
View the full text of the consolidated document issued by the National Assembly Office, consolidating the 2015 Penal Code and the 2017 Law amending the Penal Code.
Download the document: 01_VBHN_VPQH Criminal Code
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