1. Introduction to criminal liability of commercial legal entities

In the modern economy, legal entities play an important role in economic, production and service activities. However, when these legal entities commit violations of the law, especially crimes related to business activities, determining their criminal liability is essential to protect social order and ensure the legitimate rights of related parties. The 2015 Penal Code, amended and supplemented in 2017, has stipulated the criminal liability of commercial legal entities, creating an important legal basis for handling violations by organizations.

2. Legal regulations on criminal liability of commercial legal entities.
   1. Conditions for criminal liability of commercial legal entities.

Pursuant to Article 75 of the Penal Code 2015, amended and supplemented in 2017, the conditions for liability of commercial legal entities are stipulated as follows:

“ 1. A commercial legal entity shall only be criminally liable when all of the following conditions are met:

1. The crime is committed on behalf of a commercial legal entity;
2. The crime is committed for the benefit of a commercial legal entity;
3. The crime is committed under the direction, management or approval of a commercial legal entity;
4. The statute of limitations for criminal prosecution under Clauses 2 and 3, Article 27 of this Code has not expired.

2. The criminal liability of a commercial legal entity does not exclude the criminal liability of an individual.”

2.2. Scope of criminal liability of commercial legal entities.

Pursuant to Article 76 of the 2015 Penal Code, amended and supplemented in 2017, the scope of criminal liability of commercial legal entities is stipulated as follows:

“A commercial legal entity shall only be criminally liable for the following crimes:

1. Article 188 (Crime of smuggling), Article 189 (Crime of illegally transporting goods and currencies across the border); Article 190 (Crime of producing and trading in prohibited goods); Article 191 (Crime of storing and transporting prohibited goods); Article 192 (Crime of producing and trading in counterfeit goods); Article 193 (Crime of producing and trading in counterfeit goods such as food, food additives); Article 194 (Crime of producing and trading in counterfeit goods such as medicine for treatment and prevention of diseases); Article 195 (Crime of producing and trading in counterfeit goods such as food for animal husbandry, fertilizers, veterinary medicines, pesticides, plant varieties and livestock); Article 196 (Crime of speculation); Article 200 (Crime of tax evasion); Article 203 (Crime of illegally printing, issuing and trading in invoices and documents for payment to the state budget); Article 209 (Crime of intentionally disclosing false information or concealing information in securities activities); Article 210 (Crime of using inside information to buy and sell securities); Article 211 (Crime of manipulating the securities market); Article 213 (Crime of insurance business fraud); Article 216 (Crime of evading payment of social insurance, health insurance, unemployment insurance for employees); Article 217 (Crime of violating regulations on competition); Article 225 (Crime of infringing copyright and related rights); Article 226 (Crime of infringing industrial property rights); Article 227 (Crime of violating regulations on research, exploration, and exploitation of resources); Article 232 (Crime of violating regulations on forest exploitation, protection, and forest product management); Article 234 (Crime of violating regulations on management and protection of wild animals);
2. Article 235 (Crime of causing environmental pollution); Article 237 (Crime of violating regulations on prevention, response and remediation of environmental incidents); Article 238 (Crime of violating regulations on protecting the safety of irrigation works, dykes and natural disaster prevention and control; violating regulations on protecting river banks and beaches); Article 239 (Crime of bringing waste into Vietnam); Article 242 (Crime of destroying irrigation sources); Article 243 (Crime of destroying forests); Article 244 (Crime of violating regulations on management and protection of endangered, precious and rare animals); Article 245 (Crime of violating regulations on management of nature reserves); Article 246 (Crime of importing and dispersing invasive alien species); Article 300 (Crime of financing terrorism); Article 324 (Crime of money laundering).
3. Criminal penalties for commercial legal entities
   1. Fine

Fines for commercial legal entities violating the law are prescribed in Article 77 of the Penal Code 2015, amended and supplemented in 2017, as follows:

“1. Fines are applied as official or additional penalties to commercial legal entities that commit crimes.

2. The amount of the fine is decided based on the nature and severity of the crime and takes into account the financial situation of the commercial legal entity committing the crime and price fluctuations, but must not be lower than VND 50,000,000.

3.2. Suspension of operations

In addition to fines, legal entities may have their operations temporarily suspended or permanently suspended depending on the severity of the case, as specifically provided for in Articles 78 and 79 of the 2015 Penal Code, amended and supplemented in 2017, as follows:

Article 78 Temporary suspension of operations:

“1. Temporary suspension of operations means temporarily stopping the operations of a commercial legal entity in one or more fields where the commercial legal entity commits a crime causing damage to human life, health, environment, security, order, and social safety and the consequences can be remedied in practice.

2. The suspension period is from 06 months to 03 years”

Article 79 Permanent suspension of operations:

“1. Permanent suspension means the termination of the operation of a commercial legal entity in one or several fields where the commercial legal entity commits a crime causing damage or is actually capable of causing damage to the lives of many people, causing environmental incidents or adversely affecting security, order and social safety and is unable to remedy the consequences caused.

2. A commercial legal entity established solely to commit crimes shall have all operations permanently suspended.”

3.3. Prohibition on capital mobilization

In addition to the penalties of suspension and fines, the legal entity committing the crime is also subject to the penalty of prohibiting capital mobilization, specifically in Article 81 of the 2015 Penal Code, amended and supplemented in 2017, as follows:

1. Prohibition on capital mobilization is applied when it is considered that if a convicted commercial legal entity is allowed to mobilize capital, there is a risk of continuing to commit crimes.
2. Forms of capital mobilization prohibition include:

1. Prohibition on borrowing capital from credit institutions, foreign bank branches or investment funds;
2. Prohibition of issuance and offering of securities;
3. Prohibition of customer capital mobilization;
4. Prohibition of joint ventures and associations at home and abroad;
5. Prohibition of the formation of real estate trusts;

3. The Court decides to apply one or several forms of capital mobilization prohibition prescribed in Clause 2 of this Article.
4. The period of prohibition on capital mobilization is from 01 year to 03 years, from the date the judgment takes legal effect.

3.4. Judicial measures applied to commercial legal entities committing crimes

Pursuant to the provisions of Article 82 of the Penal Code 2015, amended and supplemented in 2017, as follows:

1. The Court may decide to apply the following judicial measures to a commercial legal entity that commits a crime:

1. Judicial measures prescribed in Articles 47 and 48 of this Code;
2. Forced restoration to original condition;
3. Forced to take some measures to remedy and prevent further consequences.

2. The Court may decide to apply judicial measures to force a commercial legal entity that has committed a crime to restore the original state that has been changed due to its criminal act.
3. Based on each specific crime case, the Court may decide to force the commercial legal entity that committed the crime to take one or more of the following measures to remedy and prevent the consequences of the crime:

1. Forced demolition of construction works or parts of construction works constructed without a permit or constructed not in accordance with the permit;
2. Forced to remedy environmental pollution and spread of disease;
3. Compulsory removal from the territory of the Socialist Republic of Vietnam or re-export of goods, items, and means brought into the territory of the Socialist Republic of Vietnam, imported in violation of the provisions of law or temporarily imported and re-exported but not re-exported in accordance with the provisions of law; imported and transit goods that infringe intellectual property rights, goods counterfeiting intellectual property rights, imported means, raw materials, and materials used primarily for the production and trading of counterfeit intellectual property goods when the infringing element has been removed;
4. Compulsory destruction of goods and items harmful to human health, livestock, crops and the environment, cultural products with toxic content or other exhibits subject to destruction according to the provisions of law;
5. Forced removal of infringing elements on goods, goods packaging, business vehicles, and items;
6. Forced recall of infringing products and goods currently circulating on the market.

4. Conclude

The criminal liability of commercial legal entities in the 2015 Penal Code has expanded the scope of handling to organizations that violate the law, not just individuals who commit crimes. The provisions on criminal handling of legal entities aim to protect social interests, the environment and consumer rights, and at the same time create a strong mechanism to prevent violations of the law in business activities. However, to ensure fairness and effectiveness in the application of these provisions, there needs to be synchronization in law enforcement and supervision.

Above is some information on the issue of common property of husband and wife according to the provisions of Vietnamese law. The article is for reference only, for detailed advice, please contact: info@barrso.com