Chapter XI
REGULATIONS APPLIED TO COMMERCIAL LEGAL ENTITIES COMMITTING CRIMINAL OFFENCES
Article 74. Application of Criminal Code to corporate legal entities committing criminal offences
A corporate legal entity shall bear criminal responsibility according to this Chapter, other regulations of Part One hereof that do not contravene this Chapter.
Article 75. Conditions for a corporate legal entity to bear criminal responsibility
1. A corporate legal entity shall only bear criminal responsibility if all of the following conditions are satisfied:
a) The criminal offence is committed in the name of the corporate legal entity;
b) The criminal offence is committed in the interests of the corporate legal entity;
c) The criminal offence is under instructions or approval of the corporate legal entity;
d) The time limit for criminal prosecution specified in Clause 2 and Clause 3 Article 27 hereof has not expired.
2. The fact that corporate legal entity has criminal responsibility does not exempt criminal responsibility of individuals.
Article 76. Scope of criminal responsibility of corporate legal entities
A corporate legal entity shall only bear criminal responsibility for the following criminal offences:
1. Article 188 (Smuggling); Article 189 (Illegal trafficking of goods or money across the border); Article 190 (Manufacture or trading of banned commodities); Article 191 (Possession or transport of banned commodities); Article 192 (manufacture or trading of counterfeit foods, foodstuff or food additives); Article 194 (Manufacture of trading of counterfeit medicines for treatment or prevention of diseases); Article 195 (Manufacture or trading of counterfeit animal feeds, fertilizers, veterinary medicine, pesticides, plant varieties, animal breeds); Article 196 (Hoarding); Article 200 (Tax evasion); Article 203 (Illegal printing, issuance, trading of invoices or receipts); Article 209 (Deliberate publishing of false information or concealment of information in securities activities); Article 210 (Use of internal information to deal in securities); Article 211 (Cornering the stock market); Article 213 (Commission of frauds in insurance business); Article 216 (Evasion of social insurance, health insurance, unemployment insurance payment for employees); Article 217 (Violations against regulations on competition); Article 225 (Infringement of copyrights and relevant rights); Article 226 (Infringement of industrial property rights); Article 227 (violations against regulations on survey, exploration and extraction of natural resources); Article 232 (Violations against regulations on forest extraction and protection); Article 234 (Violations against regulations on management and protection of wild animals);
2. Article 235 (Causing environmental pollution); Article 237 (Violations against regulations on environmental emergency prevention, response and relief); Article 238 (Violations against regulations on protection of irrigation works, embankments and works for protection against natural disasters; Violations against regulations on protection of river banks); Article 239 (Import of wastes into Vietnam’s territory); Article 22 (Destruction of aquatic resources); Article 243 (Forest destruction); Article 244 (Violations against regulations on management and protection of endangered, rare animals); Article 245 (Violations against regulations on management of wildlife sanctuaries); Article 246 (Import and spread of invasive alien species).
Article 77. Fine
1. Fine is imposed as a primary punishment or additional punishment against corporate legal entities committing criminal offences.
2. The fine level depends on the nature and level of danger of the criminal offence with account taken of the offender's financial capacity and fluctuation of prices. Nevertheless, the fine must not fall under VND 50,000,000.
Article 78. Suspension of operation
1. Suspension of operation means suspension of a corporate legal entity's activities in one or some fields in which the corporate legal entity harms human life, health, the environment, social security or order and the damage can be repaired in reality.
2. The suspension period is from 06 months to 03 years.
Article 79. Permanent shutdown
1. Permanent shutdown means termination of a corporate legal entity's activities in one or some fields in which the corporate legal entity causes damage or possibly harms life, health of many people, causes environmental emergencies or negatively impact social security or order and the damage cannot be repaired.
2. A corporate legal entity is established for the sole purpose of committing the criminal offence shall have all of its activities permanently terminated.
Article 80. Ban from operating in certain fields
1. Ban from certain fields shall be imposed if it is considered that the convicted corporate legal entity might harm human life, health or society if it keeps operating in such fields.
2. The court shall decide the fields from which the convicted entity is banned.
3. The duration of ban is from 01 to 03 years from the effective date of the judgment.
Article 81. Prohibition from raising capital
1. Prohibition from raising capital shall be applied if it is considered that the convicted corporate legal entity might harm human life, health or society if it keeps operating in such fields.
2. Types of prohibition from raising capital:
a) Prohibition from taking loans from banks, credit institutions and or investment funds;
b) Prohibition from issuance and securities offering;
c) Prohibition from raising capital from clients;
d) Prohibition from cooperation and association both in Vietnam and overseas;
dd) Prohibition from establishing real estate trusts.
3. The court shall decide on one or some of the types of prohibition specified in Clause 2 of this Article.
4. The duration of prohibition from raising capital is from 01 to 03 years from the effective date of the judgment.
Article 82. Judicial measures taken against corporate legal entities committing criminal offences
1. The Court may decide to take the following judicial measures against a corporate legal entity committing criminal offences:
a) The judicial measures specified in Article 47 and Article 48 hereof;
b) Compulsory restoration of original state;
c) Compulsory implementation of some measures for mitigation and prevention of consequences.
2. The court may require the offending entity to restore the original state which was changed by its criminal offence.
3. The court, on a case-by-case basis, may require the offending entity to implement one or some of the following measures for mitigation and prevention of consequences of the offence:
a) Compulsory dismantlement of the work or part of the work that is not licensed or built against the license;
b) Compulsory relief of environmental pollution or spread of disease;
c) Compulsory removal from Vietnam’s territory or re-export of goods, vehicles taken into Vietnam’s territory against regulations of law or those temporarily imported but have not been re-exported as prescribed by law; imported or transited goods that infringe intellectual property rights; counterfeit goods; vehicles, raw materials imported for manufacture or trading of counterfeit goods after the elements of violation have been removed;
d) Compulsory destruction of goods or items that harm health of humans, animals, plants and the environment; obscene materials or other exhibits subject to destruction as prescribed by law;
dd) Compulsory removal of violation elements on the goods, goods labels, means of trading or items;
e) Compulsory recall of violating products being sold on the market.
Article 83. Basis for deciding punishments against offending corporate legal entities
The Court, pursuant to this document and in consideration of the nature and danger of the criminal offence to society, offending entity's observation of law, mitigating and aggravating factors, to decide the punishment.
Article 84. Mitigating factors mitigating factors and criminal responsibility of corporate legal entity
1. The following circumstances are mitigating factors:
a) The offender has prevented or reduced the harm caused by the criminal offence;
b) The offender voluntarily makes rectification, pays damages or relieves the consequences;
c) The criminal offence has not caused any damage or the damage caused is insignificant;
d) The offender offers cooperation with proceeding agencies during the proceedings;
dd) The offender has considerable contributions to implementation of social policies.
2. When deciding the punishments, the Court might consider the offender's other circumstances as mitigating factors and specify the reasons in the judgment.
3. If a circumstance defined as a mitigating factor this document is the basis for determination of a crime or punishment bracket, it shall not be considered a mitigating factor in the decision on punishments.
Article 85. Aggravating factors applied to corporate legal entities
1. The following circumstances are considered aggravating factors:
a) Committing the criminal offence in collusion with another corporate legal entity;
b) Deliberately committing the criminal offence to the end;
c) The offence has been committed more than once;
d) Recidivism or dangerous recidivism;
dd) The offender takes advantage of war, state of emergency, natural disaster, epidemic or other tragic circumstances of society to commit the criminal offence;
e) The offender makes use of sophisticated tricks to commit or conceal the criminal offence.
2. Circumstances defined by this document as the basis for determination of a criminal offence or punishment bracket shall not be considered an aggravating factor.
Article 86. Decision on punishment for commission of multiple criminal offences
When a corporate legal entity is tried for multiple criminal offences, the Court shall decide the punishment for each of them and combined punishment as follows:
1. Primary punishment:
a) If all punishments are fines, they shall be aggregated;
b) Punishments being suspension of activities in specific fields shall not be combined;
c) Fines shall not be combined with other punishments;
2. Additional punishment:
a) If all of the punishments imposed are the of the same type, the combined punishment shall not exceed the limits specified in this document applied to such punishment; fines shall be aggregated;
b) If the punishments imposed are of various types, the convicted corporate legal entity must serve all of them.
Article 87. Combination of punishments of multiple judgments
1. If a corporate legal entity that is serving a sentence is tried for a criminal offence committed before such sentence is imposed, the Court shall decide the sentence for the criminal offence being tried and then the combined sentence as prescribed in Article 86 hereof.
The duration of the previous sentence that is suspension of operation, prohibition from operating in certain fields or ban from raising capital shall be deducted from that of the combined sentence.
2. When a corporate legal entity that is serving a sentence commits a new criminal offence, the Court shall decide the sentence for the new offence, then aggregate it with the unserved part of the sentence to make the combined sentence as prescribed in Article 86 hereof.
3. If a corporate legal entity is serving multiple sentences that are not combined, the executive judge of the Court shall issue a decision on a combined sentence as prescribed in Clause 1 and Clause 2 of this Article.
Article 88. Exemption of punishment
An offending corporate legal entity may be exempt from punishment after the damage has been repaired and compensation has been paid.
Article 89. Expungement of conviction
A convicted corporate legal entity shall automatically have its conviction expunged if it does not commit any new criminal offence for 02 years from the day on which the primary punishments, additional punishments, other decisions of the judgment are served or from the expiration of the time limit for execution of the judgment.
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