Smuggling is understood in the simplest way as bringing goods into consumption in the Vietnamese market across the border; not through the official route is to import through the customs border gate in accordance with the provisions of the law. Today, LSX Lawfirm will give you an article about “Regulations of Vietnamese law on the crime of smuggling“, as follows:
Legal grounds
Penal Code 2015, amendments and supplements in 2017
What is smuggling?
Smuggling is the (Act) of illegal cross-border trade in goods.
Article 188 of the Penal Code 2015, as amended and supplemented in 2017, smuggling is the act of trading across borders or from a non-tariff zone into the inland or vice versa contrary to the law in goods, Vietnamese money, foreign currencies, metals, gas, gems, etc.
The above illegal trade is reflected in the exchange of goods without declaration; making false declarations, using forged papers, concealing goods without valid papers; to evading the control of customs and border guards for the purpose of obtaining illicit profits.
The object of the crime of smuggling
Objects of the offense of smuggling include: goods; Vietnamese dong; currency; metal; gemstone; relics; relic; …. Specifically:
Commodities are products made in the production process, which can satisfy certain human needs and be used for exchange in the market. For example, consumer goods in daily life such as televisions, refrigerators, motorbikes, etc. The concept of goods is very broad and includes all products; except for the number of special goods specified separately from other crimes such as narcotics; military weapons and technical means;…
- Vietnam currency: The currency here does not perform the function of payment exchange but is a commodity; is the object of the act of buying and selling. The currency subject to the crime of smuggling must be the current Vietnam Dong issued by the State Bank of Vietnam;
- Foreign currency: The foreign currency in circulation; is not a currency issued by the State Bank of Vietnam.
- Precious metals Are precious and rare metals in natural form made from precious metals according to the list promulgated by the State of Vietnam such as gold, silver, platinum, etc.
- Gemstones Are natural stones and finished products from precious stones according to the list promulgated by the State of Vietnam;
- Relics are objects handed down that have historical, cultural, or scientific value (According to the Law on Cultural Heritage 2001);
- Antiquities are artifacts that have been handed down, have typical values in terms of history, culture, and science, and are one hundred years old or more (according to the Law on Cultural Heritage).
Elements of the crime of smuggling
Objective side
About behavior. Having acts of illegally trading from abroad into Vietnam or from Vietnam to abroad the following subjects: Goods; Vietnam Dong, foreign currencies (such as USD, Yen…); Precious metals, precious stones (gold, silver, diamond…); Articles belonging to historical and cultural relics; Prohibited goods (banned from circulation by the State). Illegal trading is reflected in the purchase or sale without a license or inconsistent with the contents of the import and export license and other regulations of the State on customs (for example, an import license is a machine). machinery and equipment used for agricultural production but actually buy and sell machinery used for consumption such as refrigerators, motorcycles, televisions, etc.)
In case of import and export business with the correct license but the incorrect quantity is declared (declared less than the actual imported quantity), or import in excess of the export license; permitted import is also considered as smuggling but only for the undeclared part; or import and export in excess of the allowed limit.
The trick is shown through false declaration (more or less, this item is declared as another item..); falsifying papers, concealing goods, money… or going around the border gate area to evade the control of competent authorities.
The time to complete this crime is counted from the time of delivery of goods; to money illegally crossing the border into Vietnam. However, if it is to deliver goods; money from Vietnam to abroad (in our opinion) is not necessarily calculated from the time of crossing the border of Vietnam.
Regarding the value of illegal goods as a basis for criminal prosecution
For goods, Vietnamese currency, foreign currency; precious metals, and gems must have a value of one hundred million dongs or more.
Crime of illegally transporting goods and currency across borders; Crime of producing, storing, transporting, and trading in banned goods; and Crime of producing and trading in fake goods; Crime of producing and trading in fake goods such as food, foodstuffs, curative and preventive drugs, etc.
At the same time until the time when the smuggling act is detected; the criminal record has not yet been expunged for the offenses; but also commits violations of smuggling and not in the cases specified in the following articles: Crime of illegal production of narcotics; Crime of illegally possessing, transporting, trading in or appropriating narcotics; Crime of possessing, transporting, trading in or appropriating pre-substances used in the illegal production of narcotics,…
For banned goods, there must be a large quantity (according to the guidance of the competent authority); or have been administratively sanctioned for the act of smuggling and one of the acts specified in the above articles; or have been convicted of one of the offenses set forth in these articles; have not yet had criminal records remitted, but also commit acts of smuggling but not in the cases specified in the articles specified above.
For items belonging to historical and cultural relics, the law does not specify the minimum value of illegal objects; because items of this type contain spiritual (priceless) values that cannot be measured in money.
Objects of the crime of smuggling
The act of smuggling infringes upon the state economic management of export and import.
The subjective side of the crime of smuggling
The offender commits this crime with willful error.
The subject of the crime of smuggling
The subject of the crime of smuggling is any person or legal entity with criminal capacity.
Penalties for smuggling crimes against individuals
A fine of from 50 to 300 million dongs or imprisonment from 6 months to 3 years in the following cases;
- Firstly, The value of the smuggled property is from 100 to less than 300 million dongs;
- Secondly, The value of the smuggled property is under VND 100 million but falls in one of the following cases:
Has been administratively sanctioned for smuggling;
And Has been administratively sanctioned for one of the acts specified on the crime of illegally transporting goods and currency across borders (Article 189); crime of producing and trading banned goods (Article 190) … of the Penal Code;
Has been convicted of one of the above crimes, has not yet had his criminal record cleared but still commits it.
Smuggling of illegal objects is relics and antiquities.
A fine of between VND 300 million-1.5 billion; or sentenced to between 03-07 years of imprisonment when committing the crime of smuggling in one of the following cases:
Organized crime;
Be of a professional nature;
Illegal objects worth from 300 to under 500 million dongs;
Gaining illicit profits from 100 to under 500 million dongs;
Illegal objects are national treasures;
Abusing positions and powers;
Taking advantage of the name of an agency or organization;
Committing the crime twice or more;
Dangerous recidivism.
In addition
A fine of between VND 1.5-5 billion; or sentenced to between 07-15 years of imprisonment when committing the crime of smuggling in the following cases:
Illegal objects worth between 500 million and under 1 billion dongs;
Illegal profits from 500 million to less than 1 billion dongs.
A prison term of between 12 and 20 years if falling into one of the following cases:
Illegal objects valued at VND 01 billion or more;
Gaining illegal profits of 1 billion VND or more;
Taking advantage of wars, natural disasters, epidemics, or other particularly difficult circumstances.
Thus, the heaviest penalty for smuggling is defined as a prison term of between 12 and 20 years. Along with that, offenders of smuggling may also be subject to one of the additional penalties of a fine ranging from 20 to 100 million VND; prohibited from holding certain posts, prohibited from practicing, or doing certain jobs from 01 to 05 years; or confiscate all or part of the property then.
Smuggling penalty framework for commercial legal entities
According to Article 188, the penalty frame for commercial legal entities is as follows:
A fine of between VND 300 million and VND 01 billion when:
- Firstly, Committing acts of smuggling with the value of illegal items valued at between VND 200 million and under VND 300 million;
- Secondly, Committing the act of smuggling with the value of illegal items worth less than VND 200 million but being relics and antiquities;
- Thirdly, Goods; Vietnamese dong; currency; precious metals, and gems valued at between VND 100 million and under VND 200 million but have administratively sanctioned for the acts specified in this Article; or in one of articles 189, 190, 191, 192, 193, 194, 195, 196 and 200 of the Penal Code; or has convicted of one of these crimes, has not yet had his criminal record cleared, but still commits it.
A fine of between VND 01-03 billion if committing the crime of smuggling in one of the following cases:
Organizing;
Be of a professional nature;
Illegal objects worth between 300 million and under 500 million dongs then;
Gaining illicit profits from 100 million to under 500 million dongs;
Illegal objects are national treasures then;
Committing the crime twice or more;
Dangerous recidivism.
In addition
A fine of from 03 to 07 billion dongs if committing the crime of smuggling the illegal object valued between 500 million dongs and under 1 billion dongs or illegally earning between 500 million dongs and under 1 billion dongs.
A fine of between VND 07-15 billion or suspension of operation for a term of 06 months to 03 years when committing the crime in one of the following cases:
- Firstly, Illegal objects valued at VND 01 billion or more;
- Secondly, Gaining illegal profits of 1 billion VND or more;
- Thirdly, Taking advantage of wars, natural disasters, epidemics, or other particularly difficult circumstances.
Permanently suspend operations in cases where the commercial legal entity commits a crime causing damage or has the actual potential to cause damage to the lives of many people; causes environmental problems; or adversely affects security, order, and social safety; and inability to remedy the consequences caused, or commercial legal entity established solely to commit a crime then.
According to the above provisions; The highest fine for a commercial legal entity when committing a crime of smuggling from VND 07 – 15 billion or worse, can permanently suspended from the operation then.
In addition, commercial legal entities may also be subject to some additional penalties such as a fine of between VND 50 and 300 million; prohibited from doing business or from operating in certain fields, or banned from raising capital from 01 to 03 years then.
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Related questions
The act of deliberately sending two or more people for the purpose of bringing goods across the border or from non-tariff into the inland and vice versa for consumption in the market without going through customs censorship to Tax evasion or the sale of prohibited items is considered an accomplice to the crime of smuggling.
People who commit smuggling often aim to buy and sell illegally to buy and sell again for the sake of profit and self-interest. Different from the crime of smuggling, the person who commits the crime of illegally transporting goods is not for the purpose of trading or profit. So smuggling is not the illegal transportation of goods.
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