NEW CRIMINAL CODE 2015 ELIMINATES 5 CRIMES FROM JULY 1ST, 2016 On November 27th, 2015, the National Assembly passed by the Criminal Code No. 100/2015/QH13 (“Criminal Code 2015”), which will intentionally take effect from July 1st, 2016 to substitute the Criminal Code No. 15/1999/QH10 (“Criminal Code 1999”) dated December 21st, 1999 as amended by Law No. 37/2009/QH11 dated June 19th, 2009. Accordingly, from the effective date of Criminal Code 2015, 5 crimes will be eliminated include: conducting banditry activities (Article 83); unlawful marriage registration (Article 149); unlawful business conducts (Article 159); deliberately acting against State’s regulations on economic management causing serious consequence (Article 165); and making false report on economic management (Article 167). Following is a brief of the mentioned 5 crimes to be eliminated. (i)
Unlawful business conduct under Criminal Code 1999 means conducting business without business registration, in contravention of the registered contents or without separate license if so required by law. Applicable penalties: fines of between 3 million to 50 million dong or noncustodial reform for up to 2 years or from 3 months to 2 years of imprisonment. Currently, unlawful business conduct is now being particularly interested in public when it comes to the café “Xin chao”. Mr. Tan, in this case, had conducted business without registration, and was prosecuted by Binh Chanh Police, Ho Chi Minh City for his unlawful business. Although the case has been suspended, but the impact of this incident is still great to when the Criminal Code 2015 is not in effect yet, the business thousands of households are likely to be criminally prosecuted. Speaking about the elimination of this crime under Criminal Code 2015, Dr. Tran Van Dung, Deputy Director General of Criminal - Administration Law Department, Ministry of Justice (“MOJ”) said: “With respect to the crime of unlawful business conduct regulated in Article 159 of the Criminal Code, it can be seen that the Constitution 2013 has expressed clearly its ideology of respecting and ensuring freedom to business based on the principle that citizens and enterprises are enable to invest and conduct business lines which are not prohibited by laws. The (amended) Investment Law and Enterprises Law passed by the National Assembly in 2014 already realized this ideology. Enterprises just need to register for business, then they are free to choose any business lines at their discretion and no registration or records is required as earlier. Furthermore, banned business lines are prescribed in particular Articles of the Criminal Code (trading, transport of banned goods; manufacturing, trading, transport of narcotic substances, psychotropic drugs; human trafficking, etc.)”.1 These are grounds for the National Assembly to eliminate the crime of unlawful business conduct in order for an “open and safe” business environment.
(ii)
Deliberately acting against State’s regulations on economic management causing serious consequence under Criminal Code 1999 is about those who abuse their positions and/or powers to deliberately act against the State’s regulations on economic management causing a loss. Penalties: non-custodial reform for up to 3 years or a prison term of between 1 and 20 years; confiscation of part or whole of their property, the ban from holding certain posts or doing certain jobs for 1 to 5 years.
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Source: http://tuoitre.vn/tin/phap-luat/20150404/vi-sao-bo-toi-kinh-doanh-trai-phep/729521.html
Some serious and complex cases regarding economic, corruption crimes in the recent years such as cases relating to of Nguyen Duc Kien, Duong Chi Dung, Ha Van Tham, Huynh Thi Huyen Nhu, Pham Cong Danh, etc. In these cases, most of defendants were investigated, prosecuted and sentenced under this crime. In the case in relation to of Nguyen Duc Kien, former Chairman of the Investment Board, Vice Chairman of the Management Board, Vice Chairman of the Establishment Board of ACB, 9 defendants had been prosecuted and brought to trial. Subsequently, apart from Mr. Kien, 5 other defendants, including Le Vu Ky, Ly Xuan Hai, Trinh Kim Quang, Pham Trung Cang, Huynh Quang Tuan, were sentenced for the said crime. Accordingly, Kien was accused for causing a loss of 1,405 billion dong and was sentenced to 18 years of imprisonment, total punishment for all of his crimes was 30 years of imprisonment. For other defendants, they were sentenced between 2 years to 8 years of imprisonment for such crime. Another example is the case of relating to Pham Cong Danh, former Chairman of Construction Bank, with 27 of 50 defendants prosecuted for the crime of deliberately acting against State’s regulations on economic management and causing serious consequence of 13 trillion dong. Legally speaking, Criminal Code 2015 does not eliminate the crime of deliberately acting, but in fact concretizes this offense into the specific crimes in specific areas, 2 in order to ensure the reasonableness of the Criminal Code, to avoid arbitrariness in the application use of the Criminal Code to process the crime, thereby contribute to the protection of human rights, the rights of citizens in the spirit of the Constitution 2013.3 However, the elimination of such crime and the addition of specific offenses can lead to crimes left untried if lack of sufficient provisions. (iii)
Making false reports on economic management means the crime of ones, for self-seeking or other personal purposes, making false reports to the competent agencies on data and/or documents which are clearly untruthful, then causing serious consequences to the elaboration and implementation of socio-economic plans of the State. Applicable penalties: non-custodial reform for up to 1 year or a prison term of between 3 months and 3 years; banned from holding certain posts, practicing certain occupations or doing certain jobs for 1 to 5 years. The MOJ supposed that this crime actually is no longer consistent with the spirit of the Constitution 2013 and institutionalized socialist-oriented market economy as well as the current provisions of the special law such as Investment Law, Law on Enterprises, Intellectual Property Law, Law on Credit Institution, etc.4
(iv)
Conducting banditry activities means opposing the authorities by conducting armed activities in mountainous, marine and other difficult to access areas, murdering people and looting or destroying property. Penalties: 12 - 20 years of imprisonment, life imprisonment or capital punishment. From 1990 up to now, Investigation Security Agency has prosecuted, investigated 9 cases with 79 individuals on charges of banditry activities. Compared to other types of crimes,
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The crime of deliberately acting was concretized in 45 crimes of infringing economic management order belonging to 3 group of areas: 1- Production, trade, commerce; 2- Tax, Finance, Banking, Securities, Insurance; 3Other economic areas. Besides, the Criminal Code 2015 also has some provisions designed to “deliberately acting” in the field of environmental protection and a number of other crimes related to “deliberately acting” of persons holding positions and authorities such as the crime of Abuse of power or position in performance of official duties, etc. Source: http://baochinhphu.vn/Lay-y-kien-Nhan-dan-ve-du-thao-Bo-luat-Hinh-su-sua-doi/Ban-vecu-the-hoa-toi-co-y-lam-trai-quy-dinh-NN-ve-quan-ly-kinh-te/234403.vgp See note 3.
this may not account for too many cases, but reflects a very complex nature, and causes serious damages to the national security. 5 A case on charges of banditry activities most recently is the cases of Giang A Tinh in Dien Bien Province. Whereby, the Investigation Security Agency started investigation of criminal cases, recommended for prosecution over 29 defendants; the court then sentenced 1 defendants to life imprisonment sentence (i.e., Giang A Tinh); 5 others sentenced to 20 years in prison; 1 defendants 18 years in prison; and 22 remainders were sentenced up to 15 years.6 According to the MOJ, for offenses of banditry activities, the objective in terms of behavior, such as murder, pillage directed against the people's administration has been handled in other crimes in the Chapter of Infringement of national security, 7 should the Criminal Code has eliminated this crime. (v)
Unlawful marriage registration is about those who are responsible for the registration of marriage and know clearly that the applicants are not qualified for the marriage and still make the registration for such persons, have been disciplined for such act but repeat their violation. Penalties: warning, non-custodial reform for up to 2 years or a prison term of between 3 months and 2 years; banned from holding certain posts for 1 to 5 years. According to the MOJ, the crime abolished have been processed by the regulations on illegal civil registration (Article 336 of the Criminal Code 2015).8
The application of these Articles before and after Criminal Code 2015 entry in force is instructed at Article 1.e of Resolution 109/2015/QH13 dated November 27th, 2015 as follows: (i)
Violations occurred before 0:00 July 1st, 2016, but after that point the case is in the process of investigation, prosecution and trial shall continue to apply the provisions of the Criminal Code 1999 to handle.
(ii)
For the case has been tried and has the court’s decision, judgment, it shall not be allow to refer to the fact that Criminal Code 2015 eliminates 5 crimes to appeal or protest.
(iii)
For persons convicted of these crimes or completed serving the sentence, it’s permitted to apply the relevant provisions of the normative acts of criminal law in effect before 0:00 am July 1st, 2016 to solve.
(iv)
After 0:00 am July 1, 2016, if new cases of such crimes are detected, there will be no prosecution, investigation, prosecution and adjudication for such crimes, but it will apply such criminal proceedings for corresponding crimes in Criminal Code 2015.
They have decided to delay the enforcement of the Criminal Code 2015. Please check our 2016 First Half Year Newsletter on Dispute Resolution at: [to be inserted after publicizing the relevant LBN].
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Source: http://cand.com.vn/Van-de-hom-nay-thoi-su/Khong-bo-quy-dinh-ve-toi-hoat-dong-phi-trong-duthao-Bo-luat-Hinh-su-sua-doi-371558/ Source: http://baotintuc.vn/phap-luat/tuyen-an-giang-a-tinh-va-dong-pham-ve-toi-hoat-dong-phi20140404194452719.htm Source: http://noichinh.vn/ho-so-tu-lieu/201605/5-toi-danh-duoc-bai-bo-trong-bo-luat-hinh-su-2015300579/ See note 3.