Nghị quyết 03/2020/NQ-HĐTP hướng dẫn xét xử tội phạm tham nhũng và tội phạm về chức vụ

RESOLUTION
ON GUIDELINES FOR APPLICATION OF A NUMBER OF PROVISIONS OF THE PENAL CODE IN TRIAL OF CORRUPTION AND OTHER POSITION-RELATED OFFENSES

THE COUNCIL OF JUSTICES OF THE SUPREME PEOPLE'S COURT 

Pursuant to the Law on Organization of People's Courts dated November 24, 2014;

In order to apply properly and consistently a number of provisions of the Penal Code No. 100/2015/QH13, which are amended and supplemented under Law No. 12/2017/QH14 in the trial of corruption and other position-related offenses;

After consulting the Prosecutor General of the Supreme People's Procuracy and the Minister of Justice.

RESOLVES:

Article 1. Scope of regulation

This Resolution guides the application of a number of provisions of the Penal Code No. 100/2015/QH13, which are amended and supplemented under Law No. 12/2017/QH14 (hereinafter referred to as the Penal Code) on corruption crimes and other position-related offenses; the valuation of appropriated properties and damages caused by corruption crimes or other position-related offenses; the handling of exhibits and money directly related to such crimes.

Article 2. A number of terms

1. “Agencies and organizations” mentioned in Clause 1, Article 352 of the Penal Code include State agencies, organizations, and units as well as non-state enterprises and organizations.

2. “State agencies, organizations and units” mean agencies, organizations and units defined in Clause 9, Article 3 of the Law on Anti-Corruption, including: State agencies, political organizations, socio-political organizations, units of the People's Armed Forces, public service providers, State-run enterprises and other organizations and units which are established by the State, those whose infrastructure facilities are invested in by the State or whose operating budget is wholly or partially allocated by the State, those directly managed by the State, or those participating in the management to serve the common and essential development needs of the State and the society. 

3. “Non-state enterprises and organizations” mentioned in Articles 353, 354, 364 and 365 of the Penal Code are enterprises or organizations other than those specified in Clause 2 of this Article.

4. “Position holders” mentioned in Clause 2, Article 352 of the Penal Code means those defined in Clause 2, Article 3 of the Law on Anti-Corruption.

5. “Another form” mentioned in Clause 2, Article of the 352 Penal code means those who are assigned not through appointment, election, recruitment, contract to perform certain duties and have certain powers when performing such duties.

For example: Persons assigned by a competent agency to perform duties at the Covid-19 epidemic control points.

6. “Voluntarily report such before being detected” as mentioned in Clause 7, Article 364 and Clause 6, Article 365 of the Penal Code means the case where a person who offers a bribe or an intermediary in bribery that are not detected by a competent agency or are not denounced by anyone, but he/she voluntarily reports his/her act of bribery.

7. “Voluntarily return at least three-quarters of the embezzled property or taken bribes” means the case where an offender has voluntarily returned at least three-quarters of the embezzled property or taken bribes after committing the crimes. It is also considered as voluntarily returning at least three-quarters of the embezzled property or taken bribes in the cases where an offender after committing the crimes has influenced his/her father, mother, spouse, children, brothers, sisters, or other relatives to surrender, or do object to that his/her parents, spouse, children, brothers, sisters, or other relatives return at least three-quarters of the property embezzled, or bribes taken by him/her.

In the cases where, if in the same case, a person is examined for penal liability for many crimes, including embezzlement, bribery, or other offences, but has voluntarily returned the property equal to at least three-quarters of the embezzled property or taken bribes, he/she shall be considered as voluntarily returning at least three-quarters of the embezzled property or taken bribes, unless there is a clear proof that the property is derived from other offenses.

For example: Nguyen Van A embezzles VND 4,000,000,000 and abuse his position and powers to appropriate VND 2,000,000,000,000. After A is prosecuted, if A's wife has transferred her own house and land to return VND 3,000,000,000 on A's behalf, A shall be considered as voluntarily returning at least three-quarters of his embezzled property.

8. “Actively cooperate with responsible agencies in detecting and investigating crimes or settling cases” means that after committing corruption or other position-related offenses, an offender actively provide valuable  information, documents and evidence for the detection, investigation and handling of crimes related to the crime he/she is accused of (such as: pointing out where important evidence is hidden thus helping responsible agencies recover such evidence; reporting and pointing out where other accomplices are hiding; testifying about new crimes and offenders related to the crime he/she is accused ofetc.). In addition to the above cases, others can possibly be considered as “actively cooperating with responsible agencies in detecting and investigating crimes or settling cases” which the Courts must clearly state in the judgments. 

9. “Perform a feat” means the case where an offender has helped procedural agencies to detect, arrest, investigate and handle crimes not related to the crime he/she is accused of; rescued other people in a dangerous situation or property valued at VND 100,000,000 or more of the State, collectives, or individuals in a natural disaster, epidemic, fire or another force majeure event; have an invention, initiative or idea of great value certified by a competent State agency. In addition to the above cases, others can possibly be considered as “performing a feat” which the Courts must clearly state in the judgments. 

Article 3. A number of circumstances as signs for determining crimes

1. “Having been disciplined for this act” mentioned at Point a, Clause 1 of Articles 353, 354, 355 and 358 of the Penal Code means that an offender of a criminal act, who has been previously disciplined for such act, but the statute of limitations for disciplinary action has not yet expired, is considered as having not yet been disciplined in accordance with the law provisions.

For example: Nguyen Van A has been disciplined by warning about this embezzlement of VND 500,000, but 06 months later, A embezzled another VND 1,500,000. 

In cases where a person committing a violation has been disciplined by a competent agency or organization, then examined for penal liability by a procedural agency for this act, the disciplinary action imposed previously shall not be considered as “having been disciplined for this act”.

For example: Nguyen Van A has been disciplined by a competent agency for his embezzlement of property, then he is to be prosecuted for this act of embezzlement, the circumstance of “Having been disciplined for this act” shall not be imposed to A.

2. “Having been convicted of one of the offenses prescribed in Section 1 of this Chapter and not had such conviction expunged” mentioned in Clause 1 of Articles 353, 354 and 355 of the Penal Code means that an offender has been convicted once of at least one offenses specified in Section 1, Chapter XXIII of the Penal Code and his/her criminal record have not yet been cleaned, but he/she commits one of the acts mentioned in Clause 1 of one of the Articles 353, 354 and 355 of the Penal Code.

In cases where the offender has a previous conviction for another offense in addition to the above-mentioned convictions, such conviction may be used to determine the recidivism or dangerous recidivism, unless his/her criminal records have all been used to determine the signs for determining crimes in the previous convictions.

For example: Before committing the act of taking a bribe of VND 1,500,000, A has had 02 convictions, of which the first is embezzlement of VND 5,000,000 and the second is abuse of his position and powers to appropriate VND 1,000,000. In this case, the latter shall be used to determine signs for determining his embezzlement. The former, because it has been previously used to determine signs of abuse of position and powers to appropriate property (with the appropriated amount of VND 1,000,000), shall not be used again to determine recidivism.

3. “Other material benefits” mentioned in Articles 354, 358, 364 and 366 of the Penal Code means material benefits other than property specified in Article 105 of the Civil Code.

For example: Giving bribes by sponsoring abroad study, travel, etc.

4. “Non-material benefits” mentioned at Point b, Clause 1, Articles 354, 358, 364, 365 and 366 of the Penal Code means benefits other than material benefits.

For example: Giving bribes by rewarding, nominating titles and awards; electing, assigning and appointing to positions; increasing exam scores; guaranteeing the graduation, education, competence and performance abroad; offering sex as a form of bribery, etc.

5. “Abusing position and powers to appropriate property” mentioned in Clause 1, Article 355 of the Penal Code means performing duties in a field ultra vires, or without being assigned duties or authorized powers related to such field.

For example: Nguyen Van A is the Deputy Chairperson of the Provincial People's Committee. A is only assigned to be in charge of the socio-cultural field rather than land management, but A still issues a decision to recover land from Company X in order to allocate it to Company Y (which is established by the family of A). In this case, A's action is beyond his assigned responsibilities and duties.

6. “Abusing position and powers when on official duty” mentioned in Clause 1, Article 356 of the Penal Code means abusing the assigned positions and powers to act against, fail to act, or act in contravention of law provisions.

For example: Nguyen Van A, Head of the Natural Resources and Environment Division of District B, acted against his official duty and proposed the leadership of the People's Committee of District B to sign a decision to grant a land use right certificate for a land plot ineligible for the grant of land use right certificates in in accordance with the law provisions on land.

7. “For self-seeking purposes” mentioned in Clause 1, Articles 356, 357 and 359 of the Penal Code means the case where an offender abuses his/her position and powers or acts ultra vires to gain material or non-material benefits for himself/herself or for other agencies, organizations, or individuals.

8. “Other personal motives” mentioned in Clause 1, Articles 356, 357 and 359 of the Penal Code means the case where an offender abuses his/her position and powers or acts ultra vires to affirm, consolidate, or elevate his/her status, prestige and power in an improper way.

9. Damage caused by offenses mentioned in Articles 353, 354, 355 and 358 of the Penal Code means the damage that have been actually caused and has a causal relationship with the offense, excluding money, properties, or other material benefits that the offender has appropriated or will appropriate.

For example: Nguyen Van A, a storekeeper of Company B, embezzled an amount of anti-epidemic medicines worth VND 200,000,000. The lack of such anti-epidemic medicines resulted in the death of all domestic birds worth VND 10,000,000,000 of Company B. In this case, the amount of money appropriated by A is VND 200,000,000 and the actual damage caused by A's offense is VND 10,000,000,000.

10. “Work secrets” mentioned in Articles 361 and 362 of the Penal Code means work information presented in any form (for example: documents, draft documents, speeches, images, etc.) which is regulated by agencies or organizations not to be disclosed to others and is not on the list of State secrets.

Article 4. A number of circumstances used to determine penalty brackets

1. The circumstance of “employing a treacherous trick” or “employing a dangerous trick” mentioned in Clause 2 of Articles 353, 354, 355, 364 and 365 of the Penal Code:

a) “Employing a treacherous trick” means the case where an offender employs a sophisticated deception trick, use high technology to commit his/her offense, conceal other criminals, or blame others for his/her offense or an offender commits acts of destroying evidence, making it difficult to detect, investigate and handle his/her offense.

b) “Employing a dangerous trick” means the case where an offender employs a trick that could endanger the lives and health of others or cause other serious consequences in order to appropriate property or conceal criminals.

2. The circumstance of “committing the offense twice or more” mentioned in Clause 2 of Articles 353, 354, 355, 356, 357, 358, 361, 364, 365 and 366 of the Penal Code means the case where an offender has committed one of the acts specified in these articles for 02 or more times and each act constitutes a crime, but he/she has not yet been examined for penal liability and the statute of limitation has not yet expired.

For example: On August 15, 2018, Nguyen Van A embezzled VND 10,000,000. On September 25, 2019, A again embezzled VND 20,000,000.  A has not been examined for penal liability regarding such criminal acts and the statute of limitation has not yet expired. In this case, A shall be examined for penal liability for property embezzlement and subject to the circumstance of “committing the offense twice or more” in accordance with the provisions of Point c, Clause 2, Article 353 of the Penal Code.

3. The circumstance of “adversely affecting the life of cadres, civil servants, public employees and other employees of an agency or organization” mentioned at Point g, Clause 2, Article 353 of the Penal Code means one of the following cases:

a) Causing loss or decrease of regular income or legal added income of the cadres, civil servants, public employees and other employees;

b) Causing pressing complaints and denunciations, causing disunity or distrust within the agencies or organizations, affecting morale of cadres, civil servants, public employees, and other employees.

4. The circumstance of “causing adverse impacts on security or social order and safety” mentioned in Clause 3, Articles 353 and 355 of the Penal Code means one of the following cases:

a) Causing a large-scale lawsuit, demonstrating and causing security disturbance for hostile forces to take advantage of, manipulate, and incite riots against the government, distort the guidelines of the Party and policies and laws of the State;

b) Causing public confusion, panic, or anxiety;

c) Causing difficulties in implementing the guidelines of the Party and policies and laws of the State.

For example: Nguyen Van A embezzled money used for supporting the poor in economic development, which leads to difficulties for the People's Committee of Commune B in implementing the hunger eradication and poverty reduction policies in the locality.

Article 5. Principles of handling corruption and other position-related offenses

1. The handling of corruption and other position-related offenses must ensure strictness and strictly comply with the principles of the criminal and procedural law provisions.

2. In the course of the proceedings, an offender embezzling property or taking a bribe, who have voluntarily returned at least three-quarters of the embezzled property or taken bribes, and actively cooperated with responsible agencies in detecting and investigating his/her offense or settling the case, or performed a feat, shall not be applied the heaviest penalty in the penalty bracket for the crime he/she is prosecuted or adjudicated for.

3. The special leniency of penalty exoneration mentioned Article 59 of the Penal Code may be applied for offenders with at least 02 extenuating circumstances mentioned in Clause 1, Article 51 of the Penal Code or the first-time offenders who are assistants with a negligible role in accomplice cases falling into one of the following cases:

a) They commit the offences not for self-seeking purpose or another personal motive, but only because they want to innovate or make breakthroughs in the cause of socio-economic development and national defense;

b) They are in dependent relationships (such as subordinate - superior relationship, wage earners, or performing duties as directed by their superiors), not fully aware of their criminal acts, not for self-seeking purpose or another personal motive, or not benefited; or have voluntarily reported their offenses before being detected and actively cooperated with responsible agencies in detecting and investigating their offenses or settling the cases;

c) They have voluntarily reported their offenses before being detected and actively cooperated with responsible agencies, prevented or lessened harms of their offense, voluntarily returned all appropriated property, remediated all consequences and fully compensated for damage;

d) They have made honest declarations or shown their repentance after being detected, voluntarily returned all appropriated property, remediated all consequences, and fully compensated for damage caused by them.

Article 6. Considering the penal liability and deciding the penalty in case of separation of the case

In case a case is separated for handling in different stages (into multiple cases), the penal liability shall be considered and the penalty shall be decided as follows:

1. The fact that the offender has been convicted in the previous case shall not be considered as “committing the offense twice or more”, unless the offenses considered and examined for penal liability in the stages are independent of each other;

2. The fact that the offender has been convicted in the previous case shall not be considered as having a bad personal record in order not to suspend the execution of his/her sentence, if he/she meets other conditions for being entitled to suspended sentence;

3. The penalty in each judgment or decision must be decided to ensure that the aggregation of penalties of all judgments does not exceed the heaviest penalty in the penalty bracket corresponding to the total value of the appropriated property, taken bribe or damage caused by such offender.

For example: Nguyen Van A acted beyond his authority against his official duty. Initially, as A was only proved to cause property damage worth VND 100,000,000, the proceeding agency decided to split the case into two separate cases and convict A of the act of causing damage worth VND 100,000,000. However, in the second stage of the case, the proceeding agency proved that A's offense also caused property damage worth VND 350,000,000. In the first stage, the Court applied Clause 2 of Article 357 of the Penal Code and sentenced A to 5 years in prison for misfeasance while on official duty. When hearing the case in the second stage, A continues to be prosecuted under Clause 2, Article of 357 of the Penal Code. In order to ensure that the aggregation of penalties of both judgments does not exceed the heaviest penalty in the penalty bracket prescribed in this Clause, the Court shall only decide a penalty of no more than 5 years in prison for A.

Article 7. Examining for penal liability the offenders using corrupt properties to commit one of the acts of money laundering

In cases where an offender uses property gained from his/her acts of corruption to commit one of the acts of money laundering mentioned in Article 324 of the Penal Code, in addition to being examined for penal liability for the respective crimes mentioned in Chapter XXIII of the Penal Code, such offender shall be also examined for penal liability for money laundering in accordance with Article 324 of the Penal Code.

For example: Nguyen Van A embezzled VND 5,000,000,000, then A uses this money to invest and trade in real estate to hide the illegal origin of the embezzled money. In this case, A shall be examined for penal liability for embezzlement of property as specified in Article 353 and money laundering as specified in Article 324 of the Penal Code.

Article 8. Examining for penal liability the offenders committing multiple times one of the acts mentioned in Chapter XXIII of the Penal Code.

1. In cases where an person commits one of the acts mentioned in Chapter XXIII of the Penal Code multiple times, but in each time, the value of appropriated property or taken bribe, or the property damage caused by such offender is below the prescribed minimum level for being examined for penal liability and not falls one of the other cases subject to examination for penal liability, and in all the times, the offender has not ever been disciplined for such act and the statute of limitations for disciplinary action has not yet expired, if the total value of the appropriated properties or taken bribes or the property damage caused by such offender is equal to or above the minimum level for being examined for penal liability prescribed by the Penal Code, he/she shall be examined for penal liability for his/her respective crimes in accordance with the total value of the appropriated properties or taken bribes or the damaged properties.

For example: On August 15, 2019, Nguyen Van A accepted a bribe of VND 1,500,000; on September 15, 2019, A continued to accept a bribe of VND 2,500,000; on December 30, 2016, he accepted another bribe of VND 4,500,000 and then his offense is detected by the competent agency. Such acts of A have not been disciplined yet and the statute of limitations for disciplinary action has not expired. In this case, the total value of the bribes taken by A shall is determined to be equal to VND 8,500,000, so A shall be examined for penal liability in accordance with the provisions of Clause 1, Article 354 of the Penal Code.

2. In case where a person commits one of the acts mentioned in Chapter XXIII of the Penal Code multiple times in which each time fully constitutes a crime and the total value of appropriated properties or taken bribes, or the damaged properties in all the times is subject to aggravating penalty bracket, if all the times of committing such offense have not ever been examined for penal liability and the statute of limitations for penal liability examination has not expired, in addition to the penalty bracket corresponding to the total value of the appropriated properties or taken bribes or the damaged properties, such offender shall be subject to the following aggravating circumstances used to determine penalty brackets or circumstances aggravating penal liability:

a) If the total value of the appropriated properties or taken bribes or the damaged properties is mentioned in Clause 2 of the respective law provisions, the offender shall be subject to an additional aggravating circumstance used to determine penalty brackets “committing the offense twice or more”.

For example: On August 15, 2019, Nguyen Van A accepted a bribe of VND 50,000,000; on June 30, 2020, A continued to accept a bribe of VND 100,000,000 and his offense then was detected by a competent agency. In this case, A shall be subject to two aggravating circumstances used to determine penalty brackets: “The bribes are money, property or other material benefits valued at between VND 100,000,000 and under VND 500,000,000” and “committing the offense twice or more” mentioned at Points c and dd, Clause 2, Article 354 of the Penal Code.

b) If the total value of the appropriated properties or taken bribes or the damaged properties is subject to another aggravating penalty bracket, the offender shall be subject to an additional aggravating circumstance of “committing the offense twice or more”.

For example: On March 11, 2019, Nguyen Van A accepted a bribe of VND 400,000. 000; on July 30, 2020, A continued to accept a bribe of VND 200,000. 000 was his offense then was detected by a competent agency. In this case, A shall be subject to the aggravating circumstance used to determine penalty brackets “The bribes are money, property or other material benefits valued at between VND 500,000,000 and under VND 1,000,000,000” mentioned at Point a, Clause 3 of Article 354 and the circumstance aggravating penal liability “committing the offense twice or more” mentioned at Point g, Clause 1, Article 52 of the Penal Code.

Article 9. Examining for penal liability the offenders not only appropriating properties or taking bribe but also causing property damage

In case where an offender has not only appropriated property or taken a bribe, but also caused property damage while the value of appropriated property or taken bribe, or the damaged property is subject to the points in the same penalty bracket, such offender shall be examined for penal liability in accordance with the respective points of such penalty bracket. In cases where the value of appropriated property or taken bribe, or the damaged property is subject to different penalty brackets, the offender shall be examined for penal liability under the heavier penalty bracket.

Article 10. Determining the value of appropriated property and damage caused by corruption or other position-related offenses

1. The value of appropriated property which serves as a ground for criminal handling shall be determined at the time the crime is committed. In case an offense is committed continuously or in a long time, the value of the appropriated property shall be determined at the time the offense ends. For the cases where an offense is in progress, but it is detected or prevented, the value of the appropriated property shall be determined at the time the offense is detected or prevented.

2. The property damage which serve as a ground for criminal handling, depending on each specific case, shall be determined as follows:

a) In cases where the damage is caused at the time the offense is committed, the damage shall be determined at this time; for a continuous or prolonged offense, the damage shall be determined at the time such offense is detected or such offense ends.

b) In cases where the damage is caused or lasts even after the offense is committed or after the offense has ended, the damage shall be determined at the time the damage is prevented.

c) In cases where the damage cannot be determined under the instructions at Points a and b, Clause 2 of this Article, the damage shall be determined at the time of the case is prosecuted.

3. Examination of civil liability shall comply with civil law provisions.

Article 11. Handling of exhibits and money directly related to an offense

1. After taking a case, the Court shall immediately consider and apply the measures of distrainment of properties and freezing of accounts directly related to the criminal act if these properties have not been subject to coercive measures in the stage of investigation and prosecution.

2. The Courts shall consider and decide to confiscate and remit to the State budget, or confiscate and destroy, or force the return or compensation to the lawful owners and managers in accordance with the law provisions the properties directly related to corruption and other position-related offenses, including:

a) Tools and means used in committing crimes;

b) Appropriated money or properties;

c) Bribes;

d) Damage caused by criminal acts;

dd) Illegal income from criminal acts;

e) Profits, yields and profits incurred on the illegally acquired properties;

g) Other properties as prescribed by law provisions.

3. For properties which shall be confiscated and remitted to the State budget but no longer exist at the time the case is being settled, the Court shall decide to confiscate amounts equal to the value of such properties based on the valuation conclusion of a competent agency.

4. In cases where the properties originate from corruption or other position-related offense have been merged into a block of property under common ownership, the Court shall only confiscate or force the return to the lawful owners or managers of the illegally acquired properties. Profits earned from such block of property under common ownership shall be divided with a ratio in order to confiscate or return to their legal owners and managers in accordance with law provisions.

Article 12. Effect

1. This Resolution has been passed by the Council of Judges of the Supreme People's Court on December 30, 2020 and shall take effect on February 15, 2021.

2. In cases where the offenders have been tried before the effective date of this Resolution in accordance with the previous regulations and instructions and the judgments took legal effect, this Resolution shall not be used to make appeals with the cassation and reopening procedures.