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RESOLUTION

PROVIDING GUIDELINES FOR APPLICATION OF SOME REGULATIONS OF CRIMINAL CODE ON CRIMINAL PROSECUTION FOR ILLEGAL FISHING, TRADING AND TRANSPORT OF FISHERY PRODUCTS

THE COUNCIL OF JUSTICES OF THE SUPREME PEOPLE’S COURT

Pursuant to the Law on Organization of People’s Courts dated November 24, 2014;

For the purpose of exact and consistent application of some regulations of Criminal Code No. 100/2015/QH13, as amended by the Law on 12/2017/QH14, on criminal prosecution for illegal fishing, trading and transport of fishery products;

After getting opinions from the Director of the People’s Supreme Procuracy and the Minister of Justice of Vietnam;

HEREIN RESOLVES:

Article 1. Scope

This Resolution provides guidelines for application of some regulations of Articles 347, 348 and 349 on immigration for carrying out illegal fishing; Articles 242, 244 on aquatic resources; Article 287 on obstruction or disturbance of computer networks and telecommunications networks for carrying out illegal fishing; Articles 188, 189, 198 and 341 on acts of infringement in trading of fishery products of the Criminal Code No. 100/2015/QH13 as amended by the Law on 12/2017/QH14 (hereinafter referred to as “the Criminal Code”).

Article 2. Definitions

For the purpose of this Resolution, the terms below shall be construed as follows:

1. “illegal fishing” means the conduct of one or some of the illegal fishing activities specified in clause 1 Article 60 of the Law on Fisheries, including:

a) Carrying out commercial fishing without obtaining a valid license;

b) Carrying out commercial fishing in no-take zones, or within period during which fishing activities are banned; catching and transporting aquatic species banned from commercial fishing; catching of undersized fish; engaging in banned fishing occupations or using banned fishing gears;

c) Carrying out illegal fishing of aquatic specifies included in the List of endangered, rare and precious aquatic species;

d) Carrying out illegal fishing outside the territorial waters of Vietnam;

dd) Carrying out commercial fishing in excess of the granted fishing quota of each species; failing to carry out commercial fishing within the areas and period specified in the granted license;

e) Concealing, forging or destroying evidences of violations against regulations on fishing and protection of aquatic resources;

g) Preventing or opposing competent persons carrying out inspection and supervision of compliance with regulations on fishing and protection of aquatic resources;

h) Carrying out transshipment or assisting fishing vessels which are found to have carried out illegal fishing, except force majeure events;

i) Failing to provide or insufficiently providing communication equipment and vessel tracking units (VTUs) for fishing vessels or failing to operate such equipment and VTUs as prescribed;

k) Failing to possess a valid certificate of fulfillment of food safety conditions as prescribed;

l) Carrying out temporary import for re-export, temporary export for re-import, or transit through the territory of Vietnam of fish and fishery products originating from illegal fishing;

m) Failing to fill in, recording incorrect or inadequate information, or failing to submit fishing logbook, or failing to submit reports as prescribed;

n) Carrying out unauthorized fishing in international waters under the jurisdiction of a Regional fisheries management organization using vessels without nationality or those flying the flag of a State that is not a member of this organization;

o) Using fishing vessels for carrying out commercial fishing against regulations on fishing and protection of aquatic resources in international waters beyond the jurisdiction of Regional fisheries management organizations.

2. “fishing vessels” include vessels used for catching aquatic resources and vessels used for providing logistics services for commercial fishing as prescribed in clause 20 Article 3 of the Law on Fisheries, and other vessels, as prescribed in clause 1 Article 4 of the Maritime Code, used for carrying out commercial fishing activities.

3. “outside the territorial waters of Vietnam” means territorial waters which are considered neither the territorial waters of Vietnam as prescribed in clause 1 Article 3 of the Law of the Sea of Vietnam nor any other territorial waters in which Vietnam is entitled to catch aquatic resources in accordance with the Law on Fisheries.

Article 3. Criminal prosecution for immigration for carrying out illegal fishing outside territorial waters of Vietnam

In case the person who has the supreme command on a fishing vessel has failed to carry out procedures for exit of his fishing vessel, crew members and fishermen as prescribed, or has finished exit procedures as prescribed but has erased or removed the fishing vessel’s registration number after exiting Vietnam, or has written a fishing vessel’s registration number other than the one issued by competent authorities to facilitate his crew members and fishermen’s illegal fishing outside the territorial waters of Vietnam, he shall face criminal prosecution for offenses against regulations of law on immigration as prescribed in Article 347 of the Criminal Code, if there are sufficient constituent elements of a crime.

Article 4. Criminal prosecution for organizing or brokering entry or exit to bring fishing vessels and fishermen to carry out illegal fishing outside territorial waters of Vietnam

1. Any person organizing or brokering others’ exit or entry to bring fishing vessels and fishermen to carry out illegal fishing outside the territorial waters of Vietnam in one of the following circumstances shall face criminal prosecution for organizing or brokering illegal exit or entry as prescribed in Article 348 of the Criminal Code, if there are sufficient constituent elements of a crime:

a) Failing to carry out exit or entry procedures as prescribed;

b) Carrying out exit or entry procedures for carrying out commercial fishing in areas other than the ones licensed or approved by competent authorities, or using expired fishing license.

2. Organizing others’ exit or entry to bring fishing vessels and fishermen to carry out illegal fishing outside the territorial waters of Vietnam prescribed in clause 1 of this Article means the act of arranging, directing or operating humans or vehicles to bring fishing vessels and fishermen to carry out illegal fishing outside the territorial waters of Vietnam in one of the following circumstances:

a) Commanding, assigning or directing others not to carry out exit procedures as prescribed or to carry out exit procedures as prescribed but erase or remove the fishing vessel’s registration number or to write a fishing vessel’s registration number other than the one issued by a competent authority;

b) Commanding, assigning or directing others to bring fishing vessels and fishermen to carry out illegal fishing outside the territorial waters of Vietnam;

c) Commanding, assigning or directing others to use fishing vessels without nationality or those flying the flag of a State that is not a member of any Regional fisheries management organization;

d) Commanding, assigning or directing others to alter or remove data stored on the satellite-based positioning devices installed on fishing vessels;

dd) Preparing or providing fishing vessels; providing financial support or logistics services such as money, foods, foodstuffs, fishing gears and tools, and other conditions for fishermen to carry out illegal fishing outside the territorial waters of Vietnam;

e) Employing and bring fishermen to carry out illegal fishing outside the territorial waters of Vietnam;

g) Performing other activities to bring fishing vessels and fishermen to carry out illegal fishing outside the territorial waters of Vietnam.

3. Brokering others’ exit or entry to bring fishing vessels and fishermen to carry out illegal fishing outside the territorial waters of Vietnam prescribed in clause 1 of this Article means an individual’s acting as an intermediary to assist or prepare the performance of one or several acts mentioned in clause 2 of this Article for the purpose of receiving either tangible or intangible benefits.

4. Any person organizing or brokering bringing of fishing vessels and fishermen to carry out illegal fishing outside the territorial waters of Vietnam while clearly knowing that these fishermen will illegally emigrate or stay in foreign countries shall face criminal prosecution for organizing or brokering illegal emigration or stay in foreign countries as prescribed in Article 349 of the Criminal Code, if there are sufficient constituent elements of a crime.

5. Any person who directs, arranges or orders fishermen not to follow exit procedures and to perform one or several fishing activities specified in points a, b, c, d, dd, n and o clause 1 Article 2 of this Resolution shall, in addition to the criminal prosecution for organizing illegal exit as prescribed in Article 348 of the Criminal Code, also face criminal prosecution for destruction of aquatic resources as prescribed in Article 242 or for offenses against regulations on protection of endangered, rare and precious aquatic species as prescribed in Article 244 of the Criminal Code, if there are sufficient constituent elements of a crime.

Article 5. Criminal prosecution for commercial fishing against regulations on protection of aquatic resources

1. Any person who carries out commercial fishing in contravention of regulations on protection of aquatic resources shall face criminal prosecution for destruction of aquatic resources as prescribed in Article 242 of the Criminal Code, if there are sufficient constituent elements of a crime.

2. Banned fishing equipment and gears prescribed in point a clause 1 Article 242 of the Criminal Code are those prescribed in Appendix II enclosed with the Circular No. 01/2022/TT-BNNPTNT dated January 18, 2022 of the Minister of Agriculture and Rural Development of Vietnam providing amendments to some Circulars on fisheries.

3. Commercial fishing in no-take zones prescribed in point b clause 1 Article 242 of the Criminal Code means the act of carrying out commercial fishing in national parks, nature reserves, habitat or species management areas, protected landscapes, aquatic protected areas, or other areas in which fishing activities are banned as prescribed by competent authorities.

4. Commercial fishing in temporarily banned areas prescribed in point b clause 1 Article 242 of the Criminal Code means the act of carrying out commercial fishing in those areas prescribed in Appendix III enclosed with the Circular No. 01/2022/TT-BNNPTNT dated January 18, 2022 of the Minister of Agriculture and Rural Development of Vietnam providing amendments to some Circulars on fisheries.

5. Catching aquatic species banned from fishing prescribed in point c clause 1 Article 242 of the Criminal Code means catching the aquatic species in Group I of Appendix II enclosed with the Government’s Decree No. 37/2024/ND-CP dated April 04, 2024 providing amendments to the Government’s Decree No. 26/2019/ND-CP dated March 08, 2019 elaborating the Law on Fisheries.

Catching of aquatic species in Group II of Appendix II enclosed with the Government’s Decree No. 37/2024/ND-CP dated April 04, 2024 providing amendments to the Government’s Decree No. 26/2019/ND-CP dated March 08, 2019 elaborating the Law on Fisheries shall also be considered as catching of aquatic species banned from fishing if catching conditions are not satisfied.

6. Destroying the habitat of aquatic species prescribed in point d clause 1 Article 242 of the Criminal Code means deteriorating or causing harm to or loss of habitat, aquatic ecosystems, areas where juvenile fish lives or migration pathways of the aquatic species include in the List of endangered, rare and precious species that need prioritized protection.

Article 6. Criminal prosecution for catching, trading and transport of endangered, rare and precious aquatic species

Any person who carries out catching, trading and/or transport of aquatic species in the List of endangered, rare and precious species that need prioritized protection as prescribed in Article 37 of the Law on Biodiversity or in Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) shall face criminal prosecution for offenses against regulations on protection of endangered, rare and precious aquatic species as prescribed in Article 244 of the Criminal Code, if there are sufficient constituent elements of a crime.

Article 7. Criminal prosecution against foreigners bringing fishing vessels to carry out illegal fishing in territorial waters of Vietnam

1. Any foreigner who operates a fishing vessel to carry out commercial fishing in the territorial waters of Vietnam without following entry procedures as prescribed shall face criminal prosecution for offenses against regulations of law on immigration as prescribed in Article 347 of the Criminal Code, if there are sufficient constituent elements of a crime.

2. In case a foreigner operates a fishing vessel to legally enter the territorial waters of Vietnam but carries out illegal fishing or commits another violation against the criminal code, he/she shall face criminal prosecution for the corresponding offense prescribed in the Criminal Code and treaties to which Vietnam is a signatory, if there are sufficient constituent elements of a crime.

Article 8. Criminal prosecution for offenses against regulations on management and use of vessel tracking units (VTUs) for illegal fishing

Any person who performs one of the following acts to obstruct or disturb management and supervision ability of competent authorities to carry out illegal fishing shall face criminal prosecution for obstruction or disturbance of computer networks, telecommunications networks or electronic devices prescribed in Article 287 of the Criminal Code, if there are sufficient constituent elements of a crime.

1. Removing, storing and/or transporting 02 VTUs or more of other fishing vessels;

2. Deleting, damaging or changing a software program or electronic data or illegally obstructing the transmission of data or disturbing operation of VTUs.

Article 9. Criminal prosecution for forging of seals and documents of regulatory authorities or organizations; use of forged seals or documents of regulatory authorities or organizations to carry out illegal fishing, trading and/or transport of fishery products

1. Any person who violates regulations on immigration, or organizes or brokers illegal exit from Vietnam, and forges the seals or documents of other regulatory authorities or organizations or uses such forged seals or documents to carry out illegal fishing, trading and/or transport of fishery products shall, in addition to the criminal prosecution for offenses against regulations of law on immigration as prescribed in Article 347 or for organizing or brokering illegal exit or entry as prescribed in Article 348, also face criminal prosecution for forging of seals or documents of regulatory authorities or organizations and use thereof as prescribed in Article 341 of the Criminal Code, if there are sufficient constituent elements of a crime.

2. The forged document prescribed in clause 1 of this Article is one of the following forged documents:

a) Personal identity paper, passport, laissez-passer, or another document valid for international travel;

b) Any document issued to a foreigner entering, exiting or staying in Vietnam or ABTC card;

c) Any document included in the application for registration of fishing vessel;

d) License to import or export goods; certificate of origin of goods;

dd) Health certificate or sanitary certificate;

e) License granted by a competent aquaculture authority in respect of species included in the list of aquatic species subject to conditional export or banned from export;

g) Any other document which is forged to legalize the dossier on export of fishery products;

h) License or approval for commercial fishing;

i) Any other document used for facilitation of the illegal fishing, trading and/or transport of fishery products.

Article 10. Criminal prosecution for smuggling or illegal transport of fishery products, fraudulent acts performed while buying or selling fishery products

1. Any person who trades fishery products across the border or between a free trade zone and the domestic market without obtaining a valid license for import or export of fishery products or against the granted license shall face criminal prosecution for smuggling as prescribed in Article 188 of the Criminal Code, if there are sufficient constituent elements of a crime.

2. Any person who transports fishery products across the border or between a free trade zone and the domestic market or between a free trade zone and the territorial waters of Vietnam without obtaining a valid license or against the granted license or without possessing any documents proving the origin of the transported fishery products shall face criminal prosecution for illegal transport of goods as prescribed in Article 189 of the Criminal Code, if there are sufficient constituent elements of a crime.

3. Any person who performs fraudulent acts such as legalization of documents or origin of fishery products originating from illegal fishing for trading shall face criminal prosecution for deceiving customers as prescribed in Article 198 of the Criminal Code, if there are sufficient constituent elements of a crime.

E.g.: Nguyen Van A has carried out illegal fishing of tuna in the territorial waters of Vietnam but prepared documents stating that such amount of tuna illegally caught originates from country B for the purpose of exporting them to country C. In this case, Nguyen Van A shall incur the criminal prosecution deceiving customers as prescribed in Article 198 of the Criminal Code.

Article 11. Effect

1. This Resolution is ratified by the Council of Justices of the Supreme People’s Court on June 12, 2024 and comes into force from August 01, 2024.

2. If an offender has been tried before the effective date of this Resolution according to previously promulgated regulations and guidelines and a Court's effective sentence has been passed, the Court’s judgment and ruling shall not be appealed according to this Resolution through the reopening or cassation procedures.

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