Hello Lawyer. Although I do not practice law, I have a habit and passion for legal research. Recently, I am interested in the topic of legal entities. So about the matter “Is a legal entity criminally liable in Vietnam?″ Let’s find out with LSX in the article below.
Legal grounds
- Penal Code 2015 amended and supplemented in 2017
- Civil Code 2015
What is a legal entity?
Legal entity is a term used in law, especially economic law. This is a collective entity, with independent legal status, established in accordance with the law to enter into legal relations on its own behalf. When signing a legal document made by an organization without legal status, that document is considered invalid.
According to the provisions of Article 74, Civil Code 2015:
An organization is recognized as a legal entity when it fully meets the following conditions:
• Established under the provisions of this Code and other relevant laws;
• Having an organizational structure as prescribed in Article 83 of this Code;
• Having assets independent of other individuals or legal entities and taking responsibility for their own property;
• Independently participate in legal relations on their own behalf.
Commercial legal entity and non-commercial legal entity are both legal entities, so these two forms have the following characteristics: having a tight organizational structure, having assets independent of other organizations and individuals, and participating in their own behalf. independent legal relationship and automatically qualified to be responsible for its legal activities.
Conditions for criminal liability of legal entities
Article 75 of the Penal Code 2015, amended and supplemented in 2017, a commercial legal entity is only liable for penal liability when the following conditions are fully satisfied:
Crime committed in the name of a commercial juridical person: An offense committed in the name of a commercial juridical person is an act of a person or a number of people who are on the payroll of an economic organization that, according to the law, By law, this economic organization is a commercial legal entity. If they are not in an economic organization that is recognized as a commercial legal entity, then their offense is not an act of a commercial legal entity. However, if a person is contracted or authorized by a commercial legal entity to perform a task assigned by the commercial entity and when performing them on behalf of the commercial entity that has contracted or authorized them, the act this person’s crime is still the criminal act of the commercial legal entity with which they contract or are authorized.
– Crime committed for the benefit of a commercial legal entity: When a person or a number of persons commits a criminal act assigned or authorized by a commercial legal entity for the benefit of the commercial legal entity, not for their personal benefit. However, if in the course of committing the criminal act they take advantage of the commercial legal entity to commit additional acts for personal gain, only acts for the benefit of the commercial legal entity will compel the commercial legal entity to do so. must bear, and any acts beyond the interests of commercial legal entities but for their personal interests, they must bear.
– The offense is committed with the direction, management or approval of the commercial legal entity: The criminal act of one or several persons must have the direction, administration or approval of the commercial legal entity. . Executive direction is the direction of the heads or a collective of commercial legal entities such as: Director, General Director, Board of Directors, Board of Directors of the company. This is similar to the case of organized crime where the organizers
Is a legal entity criminally liable in Vietnam?
The 1999 Penal Code does not provide for criminal prosecution of commercial legal entities. However; due to the increasing situation of commercial legal entities taking advantage of this loophole to commit criminal law violations; should be in the Penal Code 2015; legislators have introduced cases where commercial legal entities are criminally liable; Specifically, Article 76 of the 2015 Penal Code is as follows:
Article 76. Scope of criminal liability of commercial legal entities
Commercial legal entities must bear penal liability for crimes specified in one of Articles 188, 189, 190, 191, 192, 193, 194, 195, 196, 200, 203, 209, 210, 211, 213, 216, 217, 225, 226, 227, 232, 234, 235, 237, 238, 239, 242, 243, 244, 245, 246, 300 and 324 of this Code
Accordingly, there are all 33 crimes for which commercial legal entities can be prosecuted for criminal liability; Specifically, the following crimes:
Crime of smuggling
Crime of intentionally disclosing false information or concealing information in securities activities
Crime of polluting the environment
Crime of illegally transporting goods and currency across borders
Crime of using inside information to trade in securities
Crime of violating regulations on prevention, response and remedy of environmental incidents
Crime of producing and trading banned goods
Crime of manipulating the stock market
Crime of violating regulations on safety protection of irrigation works, dikes and natural disaster prevention and control; Violations against regulations on protection of banks and riverbanks
Crime of storing and transporting prohibited goods
Crime of fraud in insurance business
Crime of bringing waste into Vietnam’s territory
Crime of producing and trading in fake goods
Crime of evading payment of social insurance, health insurance, unemployment insurance for employees Crime of destroying aquatic resources
Crime of producing and trading in fake goods being food, foodstuffs and food additives
Crime of violating regulations on competition
Crime of destroying forests
Crime of producing and trading in counterfeit goods being curative and preventive drugs
Crime of infringing upon copyright and related rights
Crime of violating regulations on protection of endangered, precious and rare animals
Crime of producing and trading in counterfeit goods being animal feed, fertilizers, veterinary drugs, plant protection drugs, plant varieties and livestock breeds
Crime of infringing on industrial property rights
Crime of violating regulations on industrial property rights management of nature reserve
Crime of speculation
Crime of violating regulations on research, exploration and exploitation of resources
Crime of importing and spreading invasive alien species
Crime of tax evasion
Crime of violating regulations on exploitation and protection of forests and forest products
Crime of financing terrorism
Crime of illegally printing, issuing, trading in invoices and receipts for state budget collection and payment
Crime of violating regulations on wildlife protection
Crime of money laundering
Types of penalties for legal entities
Depending on the level; consequences of the legal person when committing one of the above-mentioned crimes; with corresponding penalties. Pursuant to the provisions of Article 33 of the Penal Code; then the main and additional penalties that the commercial legal entity must bear when committing the crime are:
Main penalty:
• Monetary fine;
• Suspension of operations for a definite time;
• Permanent suspension of operations.
Additional penalties:
• Prohibit business and activities in certain fields;
• Prohibit capital raising;
• A fine, when not applied is the primary penalty.
For each offense, the commercial legal entity is subject to only one main penalty, but may be subject to many additional penalties.
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Frequently asked questions
Termination of a legal entity is the termination of the existence of an organization as an independent subject in the legal relations in which that organization previously entered into a legal entity. The grounds for terminating a legal entity are specified in article 96 of the 2015 Civil Code, which are:
A legal entity ceases to exist in the following cases:
Consolidation, merger, division, transformation, dissolution of legal entities as prescribed in Articles 88, 89, 90, 92 and 93 of this Code;
Being declared bankrupt in accordance with the bankruptcy law.
Thus, the termination of the legal entity is carried out in two forms: Dissolution and reform of the legal entity (which can be consolidation, merger, division, or transformation). The case of a legal person being declared bankrupt is governed by the Bankruptcy Law and conducted by other legal avenues.
According to the provisions of Article 89 of the current Penal Code:
Convicted commercial legal entities are automatically expunged; if within 02 years from the time of serving the main penalty, additional penalty, other decisions of the judgment or from the expiration of the statute of limitations for judgment execution; that the commercial juridical person does not commit a new offence.
Thus, through this regulation, the commercial legal entity still has a criminal record and will get a criminal record after 02 years from the time of serving the main and additional penalties; other decisions of the judgment or from the expiration of the statute of limitations for judgment enforcement; that the commercial juridical person does not commit a new offence.
Legal entities are divided into two categories:
Commercial legal entity is a type of legal entity whose main objective is to generate profits and that profits are divided equally among members according to Article 75 of the 2015 Civil Code.
A commercial legal entity is a legal entity whose main objective is to seek profits and to distribute profits to its members.
Commercial legal entities include businesses and other economic organizations.
The establishment, operation and termination of commercial legal entities shall comply with the provisions of this Code, the Enterprise Law and other relevant laws.
Non-commercial legal entity is a type of legal entity that does not have the goal of seeking profit, if any, it will not be distributed to members according to Article 76 of the 2015 Civil Code.
A non-commercial entity is a legal entity whose primary objective is to seek profit; If there is a profit, it is not distributed among the members.
Non-commercial legal entities include state agencies, people’s armed forces units, political organizations, socio-political organizations, socio-political-professional organizations, social organizations, and social organizations. professional, social funds, charitable foundations, social enterprises and other non-commercial organizations. The establishment, operation and termination of non-commercial legal entities shall comply with the provisions of this Code, the laws on the organization of the state apparatus and other relevant laws.
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