Legal Entities as the Subject of Crime in Criminal Law of the

Socialist Republic of Vietnam

Alexey Alekseyevich Chistyakov

, Nguyen Huu Tam

, Bui Shi Nam

and Le Anh Thuan

Peoples’ Friendship University of Russia (PFUR), Moscow, Russia

National Academy of Public Administration, Hanoi, Vietnam

Keywords: Legal entity; individual; criminal liability; crime subject; administrative responsibility.

Abstract: Faced with the need for a comprehensive reform of legislation, in general, and the process of judicial reform,

in particular, the Political Bureau of the Communist Party of the Socialist Republic of Vietnam (hereinafter -

SRV) by Resolutions No. 8 and No. 49 indicated that the study of fundamental theoretical questions about the

legal situation in the state and the criminal responsibility in the SRV has not only political, social and legal

significance, but also an important practical scientific significance. The need for such research is due to the

state’s desire to ensure a more thorough, fair and effective consideration of criminal cases. On November 27,

2015, the National Assembly of the SRV voted for the adoption of amendments to the Criminal Code, which

entered into force on January 1, 2018. For the first time in the history of the criminal legislation of the SRV,

a legal entity was recognized as the subject of a crime. The purpose of the article is to study the issue of the

formation of legal regulation of the institution of criminal liability for legal entities in the SRV. The article

discusses the need to introduce criminal liability for legal entities in the SRV. In the course of the work, the

following tasks were set: to identify the reasons for the need to establish the institution of criminal liability

for legal entities in the criminal legislation of the SRV; and also to reveal the characteristic features of the

subject of crimes - legal entities. Applying comparative legal research methods, general methods of scientific

knowledge, and such analysis and synthesis, the author made a number of theoretical conclusions. The result

of the study was the development of knowledge in the field of criminal law science, in particular, the

development of scientific approaches to the legal regulation of the institution of criminal liability of legal

entities in the SRV.

1 INTRODUCTION

In the course of international integration, Vietnam

became a member of many international

organizations and took part in many international

conventions on economics, human rights and

international, such as: the convention on transnational

organized crime, the convention against corruption,

the convention for the suppression of the financing of

terrorism, and the strong development market

economy creates breakthroughs in economic life.

However, Vietnam is facing many phenomena

and socially hazardous behavior on the part of legal

entities. This reality has posed serious questions for

the Vietnamese criminal law science that need to be

answered: should a legal entity be the target of a

crime?

A legal entity is a legally constituted organization

that has a single structure, has its own property and is

responsible for its assets, as well as independently

participating in legal relations on its own behalf

(Bobkina,, 2017

, Bottega and Powell, 2012, Cam and

Lan, 2017, Harald, 2002, Krishnan, 2020).

2 MATERIALS AND METHODS

In the course of research, the author used general

scientific research methods such as analysis,

synthesis, systems approach, as well as private law

methods as comparative legal and statistical.

3 RESULTS AND DISCUSSION

The problem of establishing criminal liability for

legal entities has not yet been unambiguously

interpreted. Herewith, the number of states in the

world that enshrine in legislation the provision on the

Chistyakov, A., Tam, N., Nam, B. and Thuan, L.

Legal Entities as the Subject of Crime in Criminal Law of the Socialist Republic of Vietnam.

DOI: 10.5220/0010634800003152

In Proceedings of the VII International Scientiﬁc-Practical Conference “Criminal Law and Operative Search Activities: Problems of Legislation, Science and Practice” (CLOSA 2021), pages

249-252

ISBN: 978-989-758-532-6; ISSN: 2184-9854

249

criminal liability of legal entities is growing, and this

is considered a trend in the progressive development

of modern criminal law.

From a practical standpoint, legal entities commit

a significant number of crimes in the spheres of

economy, trade, labor law, tax law, health care and

environmental protection. A. Renou, argues that “it is

necessary to effectively punish these crimes,

especially since the financial resources of enterprises

allow them to commit much more serious crimes in

comparison with the capabilities of individuals”

(Lawrenson and Braithwaite, 2018).

Herewith, it is extremely interesting that the

criminal law systems of these states belong to

different legal systems. The criminal liability of legal

entities is established in the UK, USA, Canada and

some former colonies of Britain, which are classified

as a common law criminal family. But at the same

time, legal entities are brought to criminal

responsibility in a number of countries of the

Romano-Germanic legal family (Ministry of Justice,

2006).

Prior to the adoption of the 2015 Criminal Code

in Vietnam, there was no possibility of recognizing

legal entities as the subject of a crime. In the period

up to 2015, under the criminal law of the SRV

(hereinafter - SRV), only individuals could be

criminally liable.

The birth of the 2015 Criminal Code contributes

to the development of politics and criminal law

thinking in our state. For the first time in the history

of the criminal legislation of the SRV, the Criminal

Code provides for criminal liability for commercial

legal entities. This has changed the traditional

understanding of crime and punishment, meeting the

demand in the fight against crimes committed by

commercial entities in Vietnam in recent years. This

has created a legal basis for international cooperation

in the fight against crime, especially the transnational

organized crime. According to the traditional point of

view, it is a crime to combine objective and subjective

factors. According to objective factors, it is the

criminal act of a person that exposes society to a

significant danger. According to subjective factors,

this act should be associated with the internal

subjective attitude (guilt) of the offender, therefore,

prior to the adoption of the Criminal Code of 2015,

the criminal legislation of Vietnam recognized only

an individual as a subject of a crime, since it meets

the above two conditions. Thus, only a natural person

is subject to criminal liability, the liability of legal

entities, respectively, is not provided for by criminal

law.

In the past, in a planned economy, legal entities

were mainly state-owned enterprises that produced

goods and products pursuant to the state’s plan,

therefore, the obligations for these legal entities were

not considered. However, at present, with the socialist

market economy and the trend of international

integration in Vietnam, there are many different types

of enterprises producing products for different

purposes.

Many legal entities are commercial economic

organizations that have committed new unlawful acts

because of profits, which are detrimental to the

interests of the state, society and people. Therefore, in

addition to administrative liability, liability for

damages in civil law, the establishment of the

institution of criminal liability for legal entities for

committing dangerous acts has become necessary.

A legal entity is an organization, but not all

organizations are legal entities. Only those

organizations that meet the requirements of the law

can become legal entities and have an independent

status to enter into legal relations, that is, they have

the same “A legal entity is an organization that meets

all the necessary conditions established by law...

which is a subject of civil legal relations; differs from

an individual (individual); a legal entity is an

organization, but not any organization, but only those

organizations that meet all the conditions established

by law” (Nie, 2018).

It should be noted that a legal entity is an

organization that is legally established, has a strict

organizational structure, has independent property

and independently participates in legal relations on its

own behalf and is responsible for its property when

entering into these relations.

Legal entities can participate in public relations,

including criminal law relations.

When participating in criminal legal relations, are

legal entities recognized as subjects of a crime and are

they subject to criminal liability for dangerous acts?

Currently, this issue, which some countries are

considering, others have noted in the criminal law,

including Vietnam.

However, in general, consideration of the

question of whether a legal entity can become a

subject of a crime is always the main task in

regulating the criminal liability of a legal entity.

As analyzed above, not every organization has the

legal status of a legal entity. To be considered a legal

entity, an organization should meet the following

criteria:

- A legal entity should be legally created, that is,

it should be established in the manner prescribed by

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the Civil Code. Legal entities should be created on

clear legal grounds.

- The presence of an organizational structure

established by the Civil Code or other laws. To

survive and function normally, legal entities should

be structured in a complete, stable and unified

organizational form.

- Since a legal entity is not a person, but an

organization, that is, an association of people working

together for a specific purpose, therefore, in order for

a legal entity to function consistently, this

organization should be a team with a single will and

actions, this organization should be managed by some

"executive body"...

- The presence of property that is independent of

other individuals or legal entities, and is responsible

for its property. The legal entity should have

independent property, that is, the property of the legal

entity should be completely separated from the

private property of the participant.

A legal entity has the right to use its property to

service its activities, is responsible for its property

and fulfill its legal obligations, and can also sue to

return property or receive compensation for damage,

regardless of who causes it, even if it is a member of

it. legal entity.

- Members do not use their property for liability

for a legal entity, and legal entities do not use their

property to fulfill their duties or responsibilities on

behalf of their members.

As already analyzed above, organizational and

property independence from its members is an

independent subject of a legal entity. When

participating in legal relations, a legal entity has an

independent subject status with its members. In

addition, legal entities also have the right to

participate in the proceedings on an independent and

equal basis with other bodies, organizations and

individuals.

The Criminal Code of the SRV 2015 (as amended)

was adopted by the National Assembly of the SRV on

November 27, 2015 and entered into force on January

1, 2018. Chapter XI (Articles 74 - 89) of this Code

specifies the conditions for the application of criminal

liability for commercial legal entities, the scope of

their liability, sanctions and applicable judicial

measures, circumstances mitigating and aggravating

their liability, the conditions for their release from

punishment and convictions.

The current Criminal Code of the SRV regulates

in the most detailed way the criminal liability of

commercial legal entities. To implement the specified

vector of development of Art. 2 of the Criminal Code

of SRV 2015. “Grounds for criminal liability” was

supplemented with Part 2 on the conditions for

imposing criminal liability on a commercial legal

entity (Nie, 2019).

According to Art. 75 of the Civil Code of the SRV

2015, a commercial legal entity is a legal entity, the

main purpose of which is to make a profit for

distribution among its members [10]. Commercial

legal entities include enterprises and business

organizations. The process of creation,

implementation and termination of the activities of

commercial legal entities should be performed

pursuant to the provisions of the Civil Code of the

SRV, the Law of the SRV "On Entrepreneurial

Activity" and other relevant regulations.

It should be noted that not all legal entities can be

the subjects of crime under the criminal law of the

SRV, but only those commercial legal entities that

commit either criminal acts or acts entailing criminal

consequences. Moreover, the 2015 Criminal Code of

the SRV provides for a list of 33 specific crimes for

the commission of which commercial organizations

are subject to criminal liability.

This innovative approach of Vietnamese

lawmakers to the issue of combating crime meets the

practical requirements of concentrating the fight

against commercial legal entities in the sphere of their

encroachments on the economy and the environment,

as well as support by these organizations of terrorism

and the implementation of the process of laundering

proceeds of crime. The introduction of criminal

liability for commercial legal entities in the SRV

creates favorable conditions for the protection of the

rights of victims of violations by legal entities, and

also contributes to better legal protection of victims

in the context of globalization and the processes of

international integration in the SRV. In addition, the

provisions under consideration implement the

participation of the EOT in many international

conventions on the prevention and fight against

crime, especially participation in such significant

ones as the 2000 Convention. “On Transnational

Organized Crime”, 2003 United Nations Convention

against Corruption and other documents.

4 CONCLUSIONS

Thus, for the first time in the history of criminal law,

Vietnamese legislators have introduced provisions on

the criminal liability of commercial legal entities in

the Criminal Code, which come into force on January

1, 2018.

It is a breakthrough in legislative thinking of the

Vietnamese legislators by consideration of the

Legal Entities as the Subject of Crime in Criminal Law of the Socialist Republic of Vietnam

251

commercial legal entity as subject of crime. It duly

reflects the urgent needs of the era of building a

market economy that Vietnam is undertaking, and

also corresponds to the development trend of world

criminal law and international law pursuant to

international conventions Vietnam has participated

in.

However, since the entry into force, criminal

prosecution of commercial entities under the Vietnam

Penal Code of 2015 has not been effective, and there

are still no restrictions. This problem continues to

pose new requirements for Vietnamese lawmakers to

continue to edit, supplement and enhance the law

provisions that will be effectively applied in the fight

against organized crime in the new phase.

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