SUMMARY OF HISTORICAL BACKGROUND

After 15 years of existing and developing, the Penal Code 1999, amended in 2009 (Law No. 15/1999/QH10, as amended by Law No. 37/2009/QH12, hereinafter “Old Penal Code”) has changed which is suitablue for economic and social situation in Vietnam. From 01^st July 2016, the Current Penal Code (Law No. 100/2015/QH13, hereinafter “Current Penal Code”) was effected and replaced the Old Penal Code. It is expected that the Current Penal Code will bring significant change of the bribery rule in Vietnam. This article addresses some issues regarding bribery offence under the Current Penal Code which should be paid attention to by foreign invested companies doing business in Vietnam.

Below is our brief analysis note on this matter.

BRIBERY REGULATIONS REACH FOREIGN PUBLIC OFFICIALS, PUBLIC INTERNATIONAL ORGANIZATION OFFICIALS, AND EMPLOYEES OF PRIVATE SECTORS

Bribery offence under the Old Penal Code is stipulated as a crime relating to a “person with position” for doing “public duties” (Article 277 of the Old Penal Code), and the receivers of the bribe are interpreted as persons who have certain powers in performing official duties in Vietnam (Articles 279 and 289 of the Old Penal Code). Under the Current Penal Code, it is clearly stipulated that a foreign official, an official of a public international organization, and an office holder in an enterprise or organization other than state organizations can also be a receiver of the bribe (Article 364.6 of the Current Penal Code). Although we should observe the actual enforcement by the competent authority in order to determine the concrete scope of the application of this provision, it should be noted that the scope of the bribe receiver will be expanded under the Current Penal Code.

CAN AN ENTERPRISE BE SUBJECT TO PUNISHMENT BY GIVING BRIBE UNDER THE CURRENT PENAL CODE?

One of the important changes under the Current Penal Code is to add corporate legal entities as offenders of certain crimes (for example, Smuggling – Article 188 of the Current Penal Code, Tax Evasion – Article 200 of the Current Penal Code, etc.). Meanwhile, the Old Penal Code regulates the crime within the limit of natural persons only (Article 2 of the Old Penal Code). However, most of these crimes under which offenders can be corporate legal entities are crimes only related to economic management or environment. The offence of giving bribe under Article 364 of the Current Penal Code and other bribery-related crimes are not applied to the corporate legal entities including foreign invested enterprises under the relevant provisions of the Current Penal Code.

AMOUNT OF BRIBE AND THE PENALTIES

Basically, the offence of giving bribe will be punished depends on the amount of the value of bribe and the manner of bribery. Below is the comparison on some major changes regarding the amount of bribe and the applicable penalties between the two Codes. 

Notably, while the offender might be subject to life imprisonment under the Old Penal Code (Article 289.4) as the most severe penalty, the Current Penal Code has abolished such penalty. Instead, the most severe sentence applied to this crime under the Current Penal Code is 20 years of imprisonment only. Also, under the Current Penal Code, the case of the bribe with the value under VND 2,000,000 has been abolished while the act of giving bribe of “non-material benefits” has been newly added to be subject to bribery crime (Article 364.1.b). Given that no further guidelines as to the non-material benefits have been so far provided for, there is a concern that this would be a risk for such less-valued bribery property of less than VND 2,000,000 might be considered as “non-material benefits” which is still subject to the bribery crime under the Current Penal Code. For this issue, there is the thought that non-material benefits can be implied as “the benefits are not tangible and exchanged into money but providing the satisfation to the receiver”.[1] Meanwhile, the brible with the value under VND 2,000,000 is not constituted as the giving bribes crime because the Current Penal Code regulates for the bribe with value from VND 2,000,000 as the bibery crime. As a result, the bribe with value is not consider as neither the giving bribes crime nor non-material benefits. Above analysis is a reference for non-material benefits, which is not an official guidance for this issue. Therefore, careful consideration should be made until an official guidance in this regard is promulgated. 

The fight against the bribery is one of the most important issues for Vietnamese government, and it is expected that the enforcement of anti-bribery legislations would be stricter going forward. Since the Current Penal Code was effected in 2016, the practical enforcement of the competent authority is more prudently observed but there is still inadequacies as mentioned above. 

BP Attorneys

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Endnote:

^[1] The new points of provisions on position crimes in Penal Code 2015, People’s Court Magazine, https://tapchitoaan.vn/bai-viet/phap-luat/nhung-diem-moi-quy-dinh-ve-cac-toi-pham-ve-chuc-vu-trong-blhs-2015;

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