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22 December, 2017
A comprehensive New Penal Code comes into force in Vietnam on 1 January 2018. This covers a wide range of crimes, including bribery and related offences. The New Penal Code substantially expands the range of offences, including regulating bribery within the private sector and introducing corporate criminal liability for tax evasion and money laundering. The revisions bring Vietnam’s domestic regime more in line with international laws.
OVERVIEW OF KEY AMENDMENTS
Private sector as well as public sector bribery prohibited
In line with a number of other Southeast Asian jurisdictions, for example Indonesia, Myanmar, the Philippines and Thailand, Vietnam’s regime has to date focused on the bribery of public officials only. By contrast, the New Penal Code prohibits bribes offered to or accepted by “persons with positions and/or powers” in both the public and private sectors. In summary, the prohibitions cover:
offering or giving bribes (directly or through intermediaries), being money, property or other benefits valued at VND two million or more; or non-material interests, in return for the recipient (not) doing something (Article 364).
accepting or receiving bribes (directly or through intermediaries), being money, property or other material benefits valued at VND two million or more; or non-material interests, in return for abusing one’s position and/or powers by (not) doing something (Article 354).
Bribes by intermediaries, in which case the intermediary may also be liable (Article 365).
Key observations
The VND 2 million (USD 88) de minimis threshold has not been changed.
Despite earlier predictions, a corporate liability regime for bribery has not been introduced; the offences continue to cover individuals only. Note that corporate liability has been introduced for certain corruption-related offences (see further below).
There is some ambiguity around who may be regarded as a “person with positions and/or powers” in the private context. A common sense interpretation indicates that this concerns those with sufficient seniority or influence to act or impact decisions.
The requirement for corrupt intent is preserved – benefits must be given/received to induce (non) performance of acts to the benefit of the offeror.
The severity of the sentence and fine depends on the sum/issues involved. Interestingly, the death penalty for receiving bribes has been removed, but life imprisonment may still be imposed.
Bribery of foreign public officials prohibited
Like some other Asian jurisdictions such as India, Indonesia and the Philippines, Vietnam has not historically prohibited the bribery of foreign public officials. Article 364 of the New Penal Code introduces liability for individuals who bribe foreign public officials.
Key observations
This revision brings the domestic regime more in line with international conventions.
It will be interesting to see whether this is enforced in practice. A number of Asian jurisdictions which have introduced similar provisions have seen little to no enforcement by domestic authorities, which has attracted criticism by international bodies like OECD.
Corporate liability introduced for tax evasion and money laundering
Whilst falling short of imposing corporate criminal liability for bribery, the New Penal Code has introduced corporate liability for a wide range of other offences. These include:
- tax evasion (Article 200);
- terrorist financing (Article 300); and
- money laundering (Article 324).
Key observations
These provisions apply to for-profit commercial entities only.
These offences impose liability where the offence is committed in the commercial entity’s name and for its benefit by those authorised to bind the corporate entity.
The corporate penalty regime includes fines which are graded depending on the sums in issue. Depending on the severity of the breach, other sanctions may include prohibition from operating in certain business areas, suspension of raising capital and even termination of operation.
Comment
Vietnam has long been perceived as high-risk from a corruption perspective. It is regularly ranked in the lowest quartile on the Corruption Perceptions Index and domestic laws have lacked ‘teeth’. Despite the imposition of severe penalties for breach and the politicisation of anti-corruption efforts in recent years, Vietnam’s record has remained poor. Against this backdrop, the New Penal Code is significant and heralds a far bolder anti-corruption regime. Corporates in particular should take heed of their heightened exposure to criminal liability.
For further information, please contact:
Kyle Wombolt, Partner, Herbert Smith Freehills
kyle.wombolt@hsf.com
