Business ethics and anti-corruption laws: Vietnam

Contributed by VILAF

Vietnam is ranked 113 out of 176 on the TI CPI 2016.

Vietnam ratified the UNCAC with certain reservations. In addition, Vietnam is a member of the ADB/OECD Anti- Corruption Initiative for Asia and the Pacific.

Vietnam has also signed certain bilateral agreements for the purpose of sharing information, exchanging experience and enhancing the effectiveness of anti-corruption programmes, e.g. the Development Partnership Agreement with the United Kingdom (2006), the Joint Committee with Japan for Preventing ODA Related Corruption (2008), the Cooperation Agreement on Anti-Corruption Measures with Malaysia (2010), and the Partnership and Cooperation Agreement with EU (2012).

In Vietnam, there are four key laws relating to anti-bribery:

• Law on Prevention and Combat of Corruption No. 55/2005/QH11 dated 29 November 2005, as amended by Law No. 01/2007/QH12 dated 4 August 2007 and Law No. 27/2012/QH13 dated 23 November 2012 (Anti-Corruption Law);
• Decree No. 59/2013/ND-CP of the Government, dated 17 June 2013, detailing a number of Articles of the Anti- Corruption Law;
• Decision No. 64/2007/QD-TTg of the Prime Minister, dated 10 May 2007, on the Promulgation of the Regulations on Giving and Receiving Gifts and Returning Gifts Applicable to Agencies, Organisations and Units Using State Budget and Cadres, Civil Servants and Public Officials (Decision 64); and
• Penal Code No. 100/2015/QH13 dated 27 November 2015 (New Penal Code). Note that in 2015, Vietnam’s National Assembly passed the New Penal Code, which was to meant to take effect from 01 July 2016 and replace Penal Code No. 15/1999/QH10 dated 21 December 1999 (amended by Penal Code No. 37/2009/QH12 dated 19 June 2009). However, Vietnam’s National Assembly subsequently promulgated Resolution No. 144/2016/QH13 dated 29 June 2016 suspending the implementation of such New Penal Code for unspecified term due to certain drafting formality and consistency errors therein and has a plan to rectify such errors of the law. It is expected that the New Penal Code with revised provisions would soon take effect. This writing is updated based on the New Penal Code.

The primary law penalising corruption activities in the public and private sectors is the New Penal Code, which covers both active and passive bribery.

A bribe is construed as: (1) money, assets or other material benefit in any form, which has a value of VND  2 million (approximately US$90) or more (or less than VND 2 million if the act of bribery was committed repeatedly) or (2) intangible benefits either provided, offered or promised by any person to a person holding an official position or power with the intent of taking advantage of his or her official position or power in order to perform or refrain from performing certain acts for the benefit of, or as requested by, the person who offers the bribe.

The New Penal Code covers bribery of foreign public officials, so a Vietnamese individual would be subject to criminal liability in accordance with Vietnamese law if such individual gives bribes to a foreign public official.

A Vietnamese citizen who pays a bribe to a Vietnamese public official when abroad may be subject to criminal or administrative liability under Vietnamese laws.

A foreign citizen paying a bribe to a Vietnamese public official outside of Vietnam’s territory may also be subject to criminal liability under the New Penal Code.

Persons who are coerced to offer bribes but report them before being detected are deemed to be innocent and will have the entire property offered as bribes returned. Non-coerced bribe givers or bribery intermediaries who report the bribes before being detected may also be exempt from penal liability.

The laws of Vietnam do not expressly provide that having adequate compliance procedures in the context of anticorruption is an express defence or a mitigating factor. If the anti-corruption programme or compliance procedures help to prevent or reduce the violation then these procedures can be taken into account by the court as a mitigating circumstance.

There is no express recognition of, or exemption for, facilitating payments if the person offering or making the facilitating payment had the intention of requiring the public official(s) to perform or refrain from performing certain acts. According to the scope of bribery set out in the New Penal Code, a person receiving a facilitation payment may still be subject to criminal liability even if the ensuing action is in accordance with the law.

Generally speaking, the giving or receiving of gifts and hospitality will be deemed a bribe under Vietnamese law if it satisfies all elements of a bribe as described in paragraph 2 of Features of bribery offences Section above.

Decision 64 provides regulations on the receiving and giving of gifts by organisations, units, and ‘staff, public officials and officials’. Under this Decision, a gift includes, among other things, cash, ‘valuable papers’ (such as shares, bonds, certificate of deposits or promissory notes), goods, properties, tourism benefits, medical services, education and training. Decision 64 also prohibits ‘staff, public officials and officials’ from directly or indirectly receiving gifts when the public official has responsibilities and/or power over the gift giver’s activity and the gift giving is not justified by a clear and legitimate purpose.

Subject to prohibited cases mentioned above, Decision 64 allows a public official to receive gifts if: (a) he or she is sick or on certain occasions such as a wedding, funeral, traditional ceremonies or Lunar New Year holiday; and (b) if the value of such gift is less than VND 500,000 (approximately US$22). Government officials who receive any gift in excess of VND500,000 must report this to his or her direct manager.

Decision 64 also provides that staff, public officials and officials may receive gifts that do not relate to their public duties without having to report them to the relevant authority. However, they must sign for the receipt of the gifts. It is not clear what document must be signed by the person receiving the gift.

Generally, companies are not liable for the acts of their intermediaries, such as their subsidiaries because under Vietnamese laws: (a) only individuals can be subject to criminal liability with respect to bribery offences (companies can only be administratively sanctioned); and (b) a subsidiary is usually regarded as a separate legal person from its parent company and is therefore responsible for its own conduct only.

Subject to the imposition of criminal liabilities in the case of directors and officers who are accomplices or their failure to denounce crime, Vietnam laws do not expressly stipulate any particular responsibility of individual directors and officers for consent to, or connivance in, a corrupt act in their company. Nevertheless, a head and deputy head of an enterprise may be subject to discipline or criminal liability upon the occurrence of corrupt acts in their enterprise.

According to the New Penal Code, a bribe receiver may be liable for criminal penalties of: (a) imprisonment, including life imprisonment, or capital punishment; (b) a fine of up to VND100 million; (c) confiscation of all or part of the properties; and (d) prohibition from holding a public position for up to five years.

A bribe giver may be liable for criminal penalties of: (a) up to 20 years’ or life imprisonment; and (b) a monetary fine of up to VND50 million.

A bribe intermediary may be liable for criminal penalties of: (a) up to 15 years’ imprisonment; and (b) a monetary fine of up to VND200 million.

From the central to the local level, the key enforcement agencies within the anti-corruption sector include the following:

• Central Committee for Internal Affairs of the Communist Party of Vietnam, which is responsible for directing and coordinating anti-corruption activities in Vietnam. By law, this Committee is a part of the Communist Party and does not have judicial or executive function but given the current political settings in Vietnam, the Committee possesses significant weight in the fight against corruption;
• Steering Committee for Corruption Prevention and Combat at the central and provincial levels, which are responsible for directing, coordinating, inspecting and expediting anti-corruption activities at nationwide and local scales respectively;
• State Inspector and the State Audit, who are responsible for the inspection and audit of corrupt acts;
• Ministry of Police, the Ministry of National Defence, the Procuracies and the Courts, which are responsible for the investigation, prosecution and adjudication of corruption-related crimes; and
• Ministry of Foreign Affairs and the Ministry of Justice, which play an active role in corruption cases involving foreign elements.

In Vietnam, the key legal instruments governing the antimoneyanti-money laundering activities include:

• Law on Prevention and Combat of Money Laundering No. 07/2012/QH13 (AML Law);
• Decree No. 116/2013/ND-CP of the Government, dated 4 October 2013, detailing the Implementation of a number of Articles of AML Law;
• Circular No. 35/2013/TT-NHNN of the State Bank of Vietnam (SBV), dated 31 December 2013, guiding the Provisions on Prevention and Combat of Money Laundering (as amended by Circular No. 31/2014/TT-NHNN of the SBV dated 11 November 2014); and
• New Penal Code.

Under the AML Law and the New Penal Code, money laundering covers various acts conducted by individuals and organisations in order to legitimise the origin of the assets obtained as a result of crime, including the following:

• directly or indirectly engaging in financial, banking transactions or other transaction to conceal the illegal origin of the proceeds of crime;
• using the proceeds of crime; and
• assisting an organisation or individual involved in crime to evade its legal liabilities by way of legalising the source of assets obtained as a result of crime.

Generally, Vietnamese anti-money laundering laws require organisations operating in certain businesses such as banking, gambling, insurance and securities to comply with various requirements for preventing money laundering. These include the establishment of an anti-money laundering programme for the identification of their customers, record keeping, internal controls and supervision of suspicious transactions and reporting obligations with respect to suspicious transactions.

A person convicted of committing a crime of money laundering may be subject to 15 years’ imprisonment, confiscation of all or part of properties, a monetary fine of up to VND100 million and a ban from holding certain positions for up to five years. In addition, those convicted of preparing to commit money laundering crime may be subject to 5 years’ imprisonment.

In Vietnam, whistleblowing or denunciation is mainly handled in accordance with the Law on Denunciation No. 03/2011/QH13, the Criminal Proceedings Code No. 19/2003/QH11 and the Anti-Corruption Law.

Denunciation may be made verbally or in writing. Generally, after the receipt of the denunciation, the competent authority will verify the information of the denouncer and the contents of denunciation in order to issue a written conclusion within a period up to 90 days. This may be extended for an additional period of up to 60 days, subject to the complexity of the case. The conclusion must be disclosed publicly in accordance with the laws.

Denouncers and their relatives are protected by certain legal mechanisms. Although the denouncers must give their name and address when making the denunciation, their identifying information may be kept confidential.

Under certain circumstances as provided in the New Penal Code, failure to denounce a criminal violation or corrupt act may subject the relevant person to a penalty of up to three years’ imprisonment.

Currently, there are no specific laws governing the protection of data privacy in Vietnam. However, the requirement for keeping private information relating to an individual or organisation confidential may be found in various legal documents, such as the Civil Code No. 91/2015/QH13 effective as from 1 January 2017, the Law on Information Technology No. 67/2006/QH11 and the Law on Electronic Transactions No. 51/2005/QH11. In principle, the collection and/ or publication of any information and material of an individual or organisation must be approved in advance by that person or organisation, except as required by the competent authority in accordance with the laws.

Under Vietnamese laws, lawyers are required to keep information relating to the cases and the clients confidential during and after their supply of legal services, except as approved otherwise by the client or requested in accordance with the laws. Nevertheless, as Vietnamese laws do not expressly recognise any privilege with respect to the disclosure of confidential information in the legal profession, it is arguable whether lawyers have the obligation to disclose confidential information of their clients upon the request of the competent authority during any investigations or legal proceedings.

Contact

Luu Hoang Ha, Partner
VILAF
ha@vilaf.com.vn