RESOLUTION

ON GUIDELINES FOR CERTAIN REGULATIONS OF THE CRIMINAL CODE IN ADJUCATING CORRUPTION-RELATED OR OTHER OFFICE TITLE-RELATED CRIMES

THE COUNCIL OF JUDGES OF THE SUPREME PEOPLE’S COURT

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

For proper and consistent application of certain regulations of the Criminal Code No. 100/2015/QH13, amended in the Law No. 12/2017/QH14 in adjudicating corruption-related or other office title-related crimes;

With the opinions of the Chief Procurator of the Supreme People’s Procuracy and the Minister of Justice.

HEREBY RESOLVES:

Article 1. Scope

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Article 2. Terms

1. “agency or organization” provided for in clause 1 Article 352 of the Criminal Code refers to a regulatory agency, enterprise or organization other than state organization.

2. “agency, organization, state unit” refers to an agency, organization, state unit provided for in clause 9 Article 3 of the Anti-corruption Law, including: regulatory agencies, political organizations, socio-political organizations, people's armed units, public sector entities, state-owned enterprises and other organizations and units established by the State, with facilities and operational funds wholly or partially financed by the State, under direct or indirect management of the State in service to the general and essential development of the State and society.

3. “enterprise, organization other than state organization” provided for in Articles 353, 354, 364 and 365 of the Criminal Code refers to an enterprise or organization not prescribed in clause 2 hereof.

4. “office-holder” provided for in clause 2 Article 353 of the Criminal Code is a person prescribed in clause 2 Article 3 of the Anti-corruption Law.

5. “another method” provided for in clause 2 Article 352 of the Criminal Code refer to a case that a person who is not appointed, elected, recruited or concluded with a contract but is designated to perform a given duty and obtain the power while in the performance of such duty.

E.g. A person is assigned by a competent authority to be on duty at a quarantine station of Covid-19 pandemic.

6. “voluntarily reports the bribery before being discovered” provided for in clause 7 Article 364 and clause 6 Article 365 of the Criminal Code refers to a case in which a person has given or brokered a bribe but no regulatory body or anybody has detected that, and the said person voluntarily reports the bribery given or brokered.

7. “voluntarily returning at least three fourths of the property embezzled or bribes taken” refers to a case in which the offender has voluntarily returned at least three fourths of the property embezzled or bribes taken after the offense has been committed. It is also considered as voluntarily returning at least three fourths of the property embezzled or bribes taken if the offender causes or does not object his/her parent, spouse, child, sibling or another relative to return at least three fourths of the property embezzled or bribes taken.

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E.g. Nguyen Van A has embezzled VND 4,000,000,000 and has abused his/her position or power to appropriate VND 2,000,000,000. After A has been prosecuted, A’s wife has transferred her own real estate to return VND 3,000,000,000 on A’s behalf, it will be considered as voluntarily returning at least three fourths of the property embezzled.

8. “closely cooperating with the authorities in the process of detection, investigation or trial of the crime” means the offender has, following the commission of corruption-related or other office-title crimes, voluntarily provided information, materials, evidence that is significant to detect, investigate and deal with the crime in conjunction with the offense of which he/she is convicted (e.g. pointing out the place where a material evidence is hidden that helps the authorities to recover that evidence; testifying and pointing out the right place where another accomplice hides; reporting crime and new offenders related to the offense of which he/she is convicted, etc.). Apart from the cases mentioned above, the court may determine other cases as “closely cooperating with the authorities in the process of detection, investigation or trial of the crime” but only with specific judgment.

9. “making reparation in an effort to atone for the crime” refers to a case where the offender has helped the presiding agency detect, pursue, investigate, deal with the crime unrelated to the offense of which he/she is convicted; has saved other people in critical situation or save property valued at VND 100,000,000 or more of the State, groups, or individuals in natural disasters, epidemics, fires or other force majeure events; has come up with inventions or initiatives of great value which are confirmed by competent authorities. In addition to the above cases, other cases may be identified as "making reparation in an effort to atone for the crime", but the Courts must clearly identify them in the judgments.

Article 3. Circumstances defined as the basis for determination of a crime

1. “The offender was disciplined for the same offence” provided for in point a clause 1 Articles 353, 354, 355 and 358 of the Criminal Code is a case where the offender previously was disciplined for the same offense but the time limit which once it has fully elapsed he/she will have his/her discipline record wiped out has not elapsed as per the law.

E.g. Nguyen Van A was disciplined in a form of warning for his embezzlement of VND 500,000, but 6 months later, A has further embezzled VND 1,500,000.

In a case where a wrongdoer was disciplined by a competent agency, and he/she thereafter has been prosecuted by a presiding agency for such wrongdoing, in this case it shall not be considered as “the offender was disciplined for the same offence”.

E.g. Nguyen Van A was disciplined by a competent agency for his embezzlement, and then he has been prosecuted for such act of embezzlement, so the circumstance that “the offender was disciplined for the same offence” will not apply to A.

2. “having an unspent conviction for any of the offences specified in Section 1 of this Chapter” provided for in clause 1 of Articles 353, 354 and 355 of the Criminal Code refers to a case where the offender was convicted once for any of the offenses specified in Section 1 of Chapter XXIII of the Criminal Code and then commits any of the offenses specified in clause 1 of Articles 353, 354 and 355 of the Criminal Code while the record of the foregoing conviction has not been expunged.

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E.g. Before perpetration of the offense of taking bribe of VND 1,500,000, A had 2 previous convictions. In the first conviction, A was convicted of embezzlement of VND 5,000,000; in the second conviction, A was convicted of abuse of position or power for appropriation of property assessed at VND 1,000,000. In this circumstance, the second previous conviction is used to determine the basis for determination of the crime of embezzlement. Since the first previous conviction was used to determine the basis for determination of the crime of abuse of position or power for appropriation of property (with the appropriated amount of VND 1,000,000), it will not be further used for determination of recidivism.

3. “other financial benefits” provided for in Articles 354, 358, 364 and 366 of the Criminal Code mean material benefits other than properties as prescribed in Article 105 of the Civil Code.

E.g. Giving bribes in forms of sponsorship for overseas study, travelling, etc.

4. “non-financial benefits” provided for in point b clause 1 of Articles 354, 358, 364, 365 and 366 of the Criminal Code means benefits other than financial benefits.

E.g. Bribery by awarding or proposing to award titles and awards; election, election and appointment of office positions; raising test scores; promising to grant graduation approval, sending abroad for study, competitions, performance; sexual bribery, etc.

5. “abuse of position or power” provided for in clause 1 Article 355 of the Criminal Code means the use of position beyond their assigned powers or duties or, although not assigned or designated powers or duties in that field but still perform.

E.g. Nguyen Van A is a Deputy President of the People’s Committee of province. A has been only assigned to take charge of cultural and social field, not land management, but A still make a decision to expropriate the land of Company X and then transfer it to Company Y (the company of A’s family). In such situation, A has gone beyond his assigned powers and duties.

6. "misuse of position or powers" provided for in Clause 1, Article 356 of the Criminal Code means a person who misuses his/her position or powers to act against, not to act or improperly act the law.

E.g. Nguyen Van A, the Manager of Natural Resource and Environment of district B, has acted against his official duties. He requested the People’s Committee of district B to sign a decision on issuance of land use right to a land plot not qualified for a certificate of land use right as per the land law.

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8. “other self-seeking purposes” provided for in clause 1 Articles 356, 357 and 359 of the Criminal Code means the offender misuses or abuses his/her position or power to assert, consolidate, or raise his/her status, prestige, power in an undue manner.

9. Damage caused by the offense provided for in Articles 353, 354, 355 and 358 of the Criminal Code means the actual damage that has a causation link with the offense, excluding money, property, and other financial benefits that the offender has appropriated or will appropriate.

E.g. Nguyen Van A, a warehouse keeper of Company B, has embezzled a sum of anti-epidemic drugs worth VND 200,000,000. The lack of anti-epidemic drugs causes the consequence that all poultry worth VND 10,000,000,000 of Company B dies. In this case, it is necessary to determine the amount A appropriated is VND 200,000,000 and the actual damage caused by the criminal act of A is VND 10,000, 000,000.

10. "work secret" provided for in Articles 361 and 362 of the Criminal Code is work information expressed in any form (e.g., documents, draft documents, speeches, images, etc.) which, under regulations of agencies and organizations, must not be disclosed to others and such information is not classified on the list of state secrets.

Article 4. Circumstances as the basis for determination of sentence bracket

1. “involving deceitful methods” or “employing dangerous methods” provided for in clause 2 of Articles 353, 354, 355, 364 and 365 of the Criminal Code:

a) “involving deceitful methods” means the offender uses deceitful trick in a sophisticated way, uses high technology to commit the crime, conceal the crime, blame others or the offender destroy evidences, making it difficult to detect, investigate and deal with the crime.

b) “employing dangerous methods” means the offender uses a trick that may endanger the lives and health of others or may cause other serious consequences in order to appropriate property or conceal the crime.

2. “committing offense more than once" provided for in clause 2 of Articles 353, 354, 355, 356, 357, 358, 361, 364, 365 and 366 of the Criminal Code means the offender has committed any of the acts in these Articles at least twice and each act, though all constitutes a crime, has not been criminally prosecuted and the prescriptive period for criminal prosecution has not expired.

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3. “The offence has a negative impact on life of officials, public employees and workers of an agency or organization” provided for in point g clause 2 of Article 353 of the Criminal Code means any of the following:

a) Causing a loss or decline in regular incomes and legitimate additional incomes of officials, public employees and workers;

b) Causing frustrated claims, whistleblowing, disunity, or disbelief within the agency or organization that negatively affects the morale of officials, public employees and workers.

4. “The offence has a negative impact on social security, order or safety” provided for in clause 3 of Articles 353, 355 of the Criminal Code means any of the following:

a) Causing massive lawsuits, protests, disturbances that enable hostile forces to misuse, entice or provoke actions against the government, distort the Party’s guidelines, policies and laws of the state;

b) Causing confusion, fear or resentment among the people;

c) Causing difficulties in implementing the Party's guidelines, policies and laws of the state.

E.g. Nguyen Van A embezzled a subsidy for the poor in economic development which causes the People’s Committee B difficult in implementing the hunger eradication and poverty reduction policy in the commune.

Article 5. Approaches to corruption-related or office title-related crimes

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2. In any stage of the proceedings, if the offender of embezzlement or taking bribes has voluntarily returned at least three fourths of the property embezzled or bribes taken and has closely cooperated with the authorities in the process of detection, investigation or trial of the crime or has made reparation in an effort to atone for the crime, he/she will not face the highest level of the sentence bracket for which he/she has been prosecuted or adjudicated.

3. The offender might be exempt from punishment as he/she deserves the leniency as prescribed in Article 59 of the Criminal Code if he/she has at least 02 mitigating circumstances as specified in clause 1 Article 51 of the Criminal Code or he has prior criminal record as a helper in a complicity but with a insignificant role in any of the following:

a) The offender has no personal gain motive or other self-seeking purposes, but merely seeks to achieve innovation or breakthrough in the socio-economic development and defense of the Fatherland;

b) The offender has a dependent relationship (such as subordinate and superior, salary earner, performing duties under the director of his/her superior), is not fully aware of his/her criminal act, has no personal gain motive or other self-seeking purposes, receives no benefit from the crime; not benefiting; has voluntarily reported the crime before being discovered, and has closely cooperated with the authorities in the process of detection, investigation or trial of the crime;

c) The offender has voluntarily reported the crime before being discovered, has closely cooperated with the authorities, has helped limit the damage, has voluntarily returned the property appropriated, has remedied all of the consequences and has made restitution for the damage caused;

d) The offender, upon being discovered, has expressed cooperative attitude and showed his/her repentance and desire to redeem his/her faults, has voluntarily returned the property appropriated, has remedied all of the consequences and has made restitution for the damage caused.

Article 6. Consideration of criminal liability and decision on sentences in case of case split

If a case is split to handle in varied stages (a case is split into multiple cases), the consideration of criminal liability and decision on sentences shall be as follows:

1. The conviction in a prior case shall not prevail as the basis for determining “committing offense more than once”, unless the offenses which are criminally considered in stages are deemed independent from each other;

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3. In making each decision on punishments in each case, it must ensure that the combined punishments of the cases may not exceed the highest level of the sentence bracket equivalent to total value of the property appropriated, bribes taken or the damage caused.

E.g. Nguyen Van A has abused his power during performance of public duties. At first, since the presiding agency might only demonstrate that A caused property damage worth VND 100,000,000, it decided to split the case into 02 cases, dealing with A in advance for the act of causing damage amounting to VND 100,000,000. However, later in the second stage, the presiding agency also proved that A's act also caused property damage worth VND 350,000,000. In the first stage, the court applied clause 2 Article 357 of the Criminal Code to sentence A to 5 years' imprisonment for abuse of power in performance of public duties. In adjudicating the case in the second stage, A was further prosecuted under clause 2 Article 357 of the Criminal Code, in order to ensure that the combined punishment of the 02 sentences does not exceed the highest level of this clause, the court may only decide a punishment up to 5 years’ imprisonment to A.

Article 7. Criminal prosecution in case the offender uses the corrupted property to commit money laundering

If the offender uses the corrupted property to commit any of money laundering acts prescribed in Article 324 of the Criminal Code, apart from facing the criminal prosecution as for the equivalent offense in Chapter XXIII of the Criminal Code, the offender also faces the criminal prosecution for money laundering as prescribed in Article 324 of the Criminal Code.

E.g. Nguyen Van A embezzled VND 5,000,000,000, then A used this sum of money to invest and do real estate business to hide its illegal origin. In this case, A will face criminal prosecutions for embezzlement as prescribed in Article 353 and for money laundering as prescribed in Article 324 of the Criminal Code.

Article 8. Criminal prosecution in case of multiple performance of the same act prescribed in Chapter XXIII of the Criminal Code

2. Where a person commits multiple times the same act specified in Chapter XXIII of the Criminal Code, the act in each time has sufficient elements to constitute a crime and the total value of property appropriated, bribe taken, property damaged falls under the aggravating sentence bracket, if the offenses have not been prosecuted for and the criminal prescriptive period has not expired; in addition to applying the sentence bracket corresponding to the total value of property appropriated, bribe taken, property damaged, he/she shall also face aggravating circumstances for sentence bracket or aggravating circumstances for criminal liability as follows:

a) If the total value of the property appropriated, bribe taken, property damaged falls under clause 2 of the equivalent article, the offender shall face aggravating circumstances for sentence bracket of “committing offense more than once”.

E.g. On August 15, 2019, Nguyen Van A took a bribe amount of VND 50,000,000; on June 30, 2020, A continued to receive bribes amounting to VND 100,000,000 and was discovered by the competent authority. In this case, A shall face 02 aggravating circumstances for sentence bracket: “The bribe is money, property or other financial benefits assessed at from VND 100,000,000 to under VND 500,000,000” and “committing offense more than once” as prescribed in points c and dd clause 2 of Article 354 of the Criminal Code.

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E.g. On March 11, 2019, Nguyen Van A took a bribe amount of VND 400,000,000; on July 30, 2020, A continued to receive bribes amounting to VND 200,000,000 and was discovered by the competent authority. In this case, A shall face the aggravating circumstance for sentence bracket of “the bribe is money, property or other financial benefits assessed at from VND 500,000,000 to under VND 1,000,000,000” as prescribed in point a clause 3 Article 354 and the aggravating circumstance for criminal liability of “committing offense more than once” as prescribed in point g clause 1 Article 52 of the Criminal Code.

Article 9. Criminal prosecution if the offender both appropriates property, takes bribes and causes damage to property

If an offender both appropriates property, takes bribes and causes damage to property and the value of the property appropriated, bribe taken, property damaged falls under paragraphs under the same sentence bracket, he/she shall face a criminal prosecution for such equivalent paragraphs of that sentence bracket. Where the value of the property appropriated, bribe taken, property damaged falls under varied sentence brackets, the higher sentence bracket shall prevail when it comes to criminal prosecution.

Article 10. Determination of the value of the property appropriated, bribe taken, property damaged caused by corruption-related or office title-related crimes

1. The value of the appropriated property as the basis for criminal actions shall be determined at the moment of perpetration of the offense. If the offense is perpetrated in a continuous and prolonged manner, the value of the appropriated property shall be determined at the end of the offense. In case the offense is ongoing but detected or prevented, the value of the appropriated property is determined at the time the offense is detected and prevented.

2. The damage of property as the basis for criminal actions as the case maybe shall be determined as follows:

a) If the damage occurs when the offense is perpetrated, the damage shall be determined at such time; if the offense is perpetrated in a continuous and prolonged manner, the damage shall be determined at the time when the offense is detected or prevented or at the end of the offense.

b) Where the damage occurs or lasts after the crime is committed or after the crime has ended, the damage is determined at the time the damage is prevented.

c) In case the damage cannot be determined as guided in points a and b, clause 2 of this Article, the damage is determined at the time of institution of the case.

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Article 11. Approaches to items, money directly related to the crime

1. After receiving a case, the court must consider immediately applying measures to distrain property and blockade accounts directly related to the criminal act if such property has not yet been subject to coercive measures during the investigation and prosecution phase.

2. The court shall consider confiscating the property into the state budget, destroying the property or forcing return or compensation to the owners and/or custodians in accordance with the provisions of law if the property is directly related to corruption-related or other office title-related crimes, including :

a) Instruments, vehicles used for the commission of the crime;

b) Money, property appropriated;

c) Bribes taken;

d) Damage caused by the offense;

dd) Illicit proceeds from the offense;

e) Profits, yield, income derived from the commission of the crime;

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3. If the property to be confiscated no longer exists at the time of case settlement, the court shall decide confiscation of the value of the property based on a valuation conclusion of the competent authority.

4. If the property derived from the corruption-related or other office title-related crime is joined to a shared property, the court shall only confiscate or force the return to the owner or custodian of the part of property derived from the crime. The profit earned from the share property shall be distributed proportionately for confiscation or return to the owner or custodian as per the law.

Article 12. Entry into force

1. This Resolution is passed on December 30, 2020 by the Council of Judges of the Supreme People's Court and enters into force as of on February 15, 2021.

2. Where the offenders have been tried before the effective date of this Resolution in accordance with previous regulations and guidelines and the judgments are legally effective, they shall not prevail this Resolution as the basis to protest under cassation procedure or reopening procedure.

ON BEHALF OF THE COUNCIL OF JUDGES
CHIEF JUSTICT




Nguyen Hoa Binh