1. Bribery in the home (private to public)
1.1 The Legal Environment
The Anti-Corruption Law1 and the Penal Code govern the subject of anti-corruption or anti-bribery in Vietnam.
The Anti-Corruption Law is seen as a “code of behavior” for those in positions of responsibility and power, such as state officials, public employees, and others entrusted with state power (collectively, “Officials”). The Anti-Corruption Law serves as the foundation for the Penal Code’s application to bribery offenses. It makes no mention of the act of paying bribes, nor does it specify any penalties for non-compliance. The Anti-Corruption Law, depending on the gravity of the breach, refers to the Penal Code, the Law on Cadres and State Officials3, and the Law on Public Employees4 for punishments.
Bribery (private to public) is addressed in the Penal Code by I people in “public” positions of responsibility and power, and (ii) those who give bribes or act as middlemen for bribery. The Penal Code outlines the elements of corruption-related offenses, as well as the criminal responsibilities and penalties associated with them.
According to Supreme Court Letter No. 276/TANDTC-PC, certain parts of the amended 2015 Penal Code (including various bribery-related laws) took effect on July 1, 2016.
However, the articles of the 2015 Penal Code that apply to private sector bribery as well as bribery of foreign public authorities and officials of public international organizations have yet to go into force.
1.2 What does bribery mean?
In regards to persons in positions of responsibility and influence, the 2015 Penal Code distinguishes between “taking bribes” and “offering bribes.”
(a) Accepting bribes
Under Article 354 of the 2015 Penal Code, which took effect on July 1, 2016, any person who abuses his or her position and/or power by accepting or will accept any of the following interests for himself or for another person or an organization in order to perform or not perform certain official tasks for the benefit, or at the request of o
Money, property, or other monetary interests worth at least VND 2 million (roughly USD 90); or less than VND 2 million but where I the receiver has been previously disciplined for the same act; or (ii) the receiver has been previously condemned for corruption-related crimes specified under Section 1, Chapter XXIII of the 2015 Penal Code.
Any vested non-financial interest
There are serious ramifications.
The offender has been reprimanded in the past for similar offenses.
The perpetrator has already served time in prison for corruption offenses under Section A of Chapter XXI of the Penal Code.
(b) Taking bribes
According to Article 364 of the 2015 Penal Code, which took effect on July 1, 2016, anyone who has given or will give money, property, or other pecuniary interest in any form worth VND 2 million or more.
The four elements of the crime of “bribery” that must be satisfied at this time are as follows:
The bribe recipient is in a position of authority and responsibility.
The recipient must receive the money, property, other pecuniary interest, or non-pecuniary interest (i.e., there must be an act of giving).
It had to be supplied to persuade the bribe recipient to perform or refrain from performing a specific official task for the benefit of, or at the request of, the bribe donor.
The bribe’s value (for pecuniary gain) must meet the criminal culpability level (i.e., VND 2 million). Otherwise, proof that the recipient has been previously reprimanded for accepting bribes or has been previously sentenced for any corruption-related offense is required.
1.3 What does it mean to be a public official?
Officials (or those in positions of responsibility and influence) are defined broadly under Article 1.3 of the Anti-Corruption Law:
Cadres, state officials, and government workers
Officers and non-commissioned officers, professional-technical officers and non-commissioned officers in agencies or units of the People’s Army; officers and non-commissioned officers, professional-technical officers and non-commissioned officers in agencies or units of the Public Security; officers and non-commissioned officers, professional-technical officers and non-commissioned officers in agencies or units of the People’s Army; officers and non-commissioned officers, professional-technical officers
Leading, managerial officials in state-owned enterprises (SOEs); leading, management officers representing the state’s contributed capital portions in enterprises.
Persons who have been assigned tasks or official responsibilities and who, as a result of completing those tasks or fulfilling those responsibilities, have some authoritative capabilities.
State officials and public employees are the two basic sorts of officials. The following are the relevant definitions of “state officials” and “public employees”:
“State officials” are Vietnamese nationals who are recruited; appointed to a position, a post, or a title in public bodies; and paid from the state budget or the salary fund of the public non-business unit if they are in the leadership and managing apparatuses of the non-business unit (Article 4, Law on Cadres and State Officials).
“Public employees” are Vietnamese citizens who work in a public non-business unit and are hired following an examination or selection process. They work under a labor contract with the head of the public non-business unit and are paid from the public non-business unit’s pay budget (Article 2, Law on Public Employees).
1.4 Bribery and its Consequences
Currently, the Penal Code only addresses criminal culpability for individuals (not corporate liability). As a result, only natural humans who have committed or been proved accountable for a crime involving a company may be held liable.
According to the Penal Code, an official who commits a corrupt conduct may face disciplinary action or criminal prosecution, depending on the nature and degree of the violation. He or she will be terminated if he or she is sentenced for a corrupt act and the decision is legally enforceable. Those who accept bribes may face criminal charges, which could include the death penalty. Any properties, monies, or other valuables obtained through corruption or bribery may be expropriated under applicable legislation.
Bribery shall be punishable by fines and/or prison terms ranging from six months to twenty years for those who give bribes or act as intermediaries for bribery. Those who are pressured into offering bribes but take the initiative to denounce their acts before they are discovered are not judged guilty and are entitled to reclaim any property they were forced to give as bribes back. Bribe givers who, although not being pressured, take the initiative to report their activities before they are discovered may be immune from criminal culpability and recover some of the property they gave as bribes back.
Commercial legal entities will be subject to criminal liability for committing specific crimes, which do not include corruption-related offenses like taking bribes, giving bribes, and serving as bribery intermediaries, after the rest of the 2015 Penal Code takes effect. Individuals of commercial legal entities who accept bribes, on the other hand, may face criminal liability, including fines and/or prison terms ranging from six months to twenty years, and those who give bribes may face criminal liability, including fines and/or prison terms ranging from six months to twenty years.
1.5 Contributions from politics
Vietnamese legislation does not specify how much money can be given to political parties. The Communist Party of Vietnam is the only political party recognized by the Constitution of the Socialist Republic of Vietnam. Independent candidates, on the other hand, can and do run for elected positions.
1.6 Hospitality expenses are subject to a limit (gifts, travel, meals, entertainment, among others)
The Anti-Corruption Law imposes the following restrictions on gift giving and receiving:
Except in certain rare circumstances allowed by law, agencies, organizations, and units may not use state budget cash or property as presents.
Cadres, state officials, and public employees are prohibited from accepting money, assets, or other material interests from agencies, organizations, units, and/or persons involved in matters for which they are accountable, or which fall under their administration.
Giving or receiving presents as bribes, as well as performing other acts that support self-serving objectives, is strictly prohibited.
Officials are allowed to accept presents in certain limited circumstances under Decision No. 647.
They could, for example, receive the following gifts:
from relatives who, in turn, get no benefits related to the gift recipient’s official duties (no specified restriction on the gift’s value);
from individuals or entities unrelated to the gift recipient’s official duties/activities (no specified restriction on the gift’s value); and
if the recipient is ill or injured in an accident, in mourning or celebrating a marriage, or if the present is in accordance with traditional festivals or the Lunar New Year, from individuals or entities (Tet). In these cases, the present value must be less than VND 500,000 (about USD 23) and must not be given in conjunction with the gift recipient’s official duties, any benefits, purposes, or acts of corruption forbidden by the Anti-Corruption Law or the Penal Code.