25 November, 2016
Pursuant to Resolution No. 144/2016/QH13 dated 29 June 2016, Penal Code No. 100/2015/QH13, which was issued to replace the current Penal Code and intended to take effect on 1 July 2016 (the 2015 Penal Code), has been postponed and will not come into effect until the law amending and supplementing a number of articles of the 2015 Penal Code takes effect, excluding the provisions which are more favorable as applied to offenders which were applicable from 1 July 2016.
Recently, a draft law on amending a number of articles of the 2015 Penal Code (the Draft Law) has become available for public review. On 21 October 2016, the Draft Law was submitted to the 14th National Assembly for consideration during the parliament’s second session.
The Draft Law aims to revise all technical errors and inapplicable provisions in the 2015 Penal Code. The proposed revisions and supplements relate to 141 articles, including 38 articles with technical errors, 102 others with content problems, and one article was proposed to be abolished. The most considerable changes are to provisions regarding commercial legal entities committing crimes and provision regarding individuals who provide illegal services via computer or telecommunication networks. These changes are set out below.
Amendments relevant to commercial legal entities;
The extension of criminal liabilty to commercial legal entities for certain crimes is a new development in the 2015 Penal Code. The 2015 Penal Code focused on building general criminal policies applicable to commercial legal entities such as applicable principles, conditions for a commercial legal entity to bear criminal liability, scope of a commercial legal entity’s criminal liability, etc. However, were still some insufficient and unspecific regulations causing certain difficulties as applied in practice. Therefore, to ensure the effective application of such general policies, the Draft Law amends and supplements some regulations as laid out below:
More guidance on merging of penalties in cases where a commercial legal entity commits multiple criminal offenses;
The 2015 Penal Code did not specify as to the combination of different penalties which may be incurred by a commercial legal entity. Thus, the Draft Law adds that if the applicable punishments to a commercial legal entity includes both temporary suspension of its operations and permanent suspension of its operations in the same domain as that in which the crimes were committed, the cumulative punishment will be permanent suspension of its operations in said domain. However, if the punishments are for temporary suspension or permanent suspension of operation for each specific domains, the punishments will not be merged.
More guidance on criminal history expungement for commercial legal entities sentenced to permanent suspension of its operations in one or some certain domains;
As a measure to prevent commercial legal entities from committing crimes, the Draft Law strictly regulates the period of criminal history expungement for commercial legal entities that are sentenced to permanent suspension of its operations is five (5) years from the date in which additional penalties and other decisions of judgment are served or from the expiration of the time limit for execution of the judgment.
Supplement of other regulations applicable to a commercial legal entity; and
For the purpose of fulfilling necessary regulations regarding crimes and penalties to a commercial legal entity, the Draft Law supplements some provisions on classification of crimes, complicity, time limit for criminal prosecution, exemption for criminal liability, recidivism, and instrumental recidivism. Accordingly, concepts/contents of these provisions are the same as provisions applicable to individuals committing crimes. With the supplement as mentioned above, the Draft Law will strengthen the consistency of the 2015 Penal Code regarding the application of crimes and penalties to a commercial legal entity.
Abolishment of the offense of providing illegal services on computer or telecommunication networks.
The controversial article is finally removed from the 2015 Penal Code due to its inadequacy. In recent years, doing business online has been significantly promoted and has attracted just as much public attention. Therefore, the existence of Article 292 will be an obstacle for the development of business activities via computer and telecommunications networks, especially the growth of Vietnam’s young technology start-ups. Further, the removal of Article 292 is to be consistent with the abolishment of the crime of “Conducting Business Illegally” under the 2015 Penal Code.
For further information, please contact:
Chi Anh Tran, Baker & McKenzie
Chianh.Tran@bakermckenzie.com
