CRIMINAL LIABILITY FOR LEGAL ENTITIES COMMITTING CRIMES IN VIETNAMESE AND UNITED STATES CRIMINAL LAW

ABSTRACT

The 2015 Penal Code of Vietnam has added provisions on criminal liability for commercial legal entities - this is not only a provision in Vietnamese criminal law but also in the laws of many countries in the world. Most countries following the "Common Law" system (typically the United State) do not limit the scope of crimes attributed to legal entities, but legal entities can be held criminally responsible for all crimes prescribed in criminal law. In this article, the author has researched criminal liability for legal entities committing crimes in Vietnamese and US criminal law. From there, he draws experiences in building laws in Vietnam today.

АННОТАЦИЯ

Уголовный кодекс Вьетнама 2015 года добавил положения об уголовной ответственности коммерческих юридических лиц - это положение не только во вьетнамском уголовном праве, но и в законах многих стран мира. Большинство стран, следующих системе «общего права» (как правило, Соединенные Штаты), не ограничивают сферу преступлений, приписываемых юридическим лицам, но юридические лица могут быть привлечены к уголовной ответственности за все преступления, предусмотренные в уголовном праве. В этой статье автор исследовал уголовную ответственность юридических лиц, совершивших преступления во вьетнамском и американском уголовном праве. Оттуда он черпает опыт в построении законов во Вьетнаме в настоящее время.

Keywords: Viet Nam, United State, Penal Code, commercial legal entities, legal entities, crimes.

Ключевые слова: Вьетнам, Соединенные Штаты, Уголовный кодекс, коммерческие юридические лица, юридические лица, преступления.

Not only in Vietnam but also in the world, besides determining the criminal liability of individuals, the issue of criminal liability of legal entities is also raised. Currently, the criminal liability regime of legal entities is not only established in positive law and has become a basic principle in criminal law in countries with developed legal systems and long traditions such as England, France, the United States, but also established in many developing countries in Asia, Latin America...

1. Basis for determining criminal liability of legal entities

Regarding the concept of legal entities in Vietnamese law, it is understood as follows: according to Article 74 of the 2015 Civil Code: “An organization is recognized as a legal entity when it meets all the following conditions: Established in accordance with the provisions of this Code and other relevant laws; Having an organizational structure according to the provisions of Article 83 of this Code; Having assets independent of other individuals and legal entities and being responsible for its own assets; Participating in legal relations independently in its own name.” In Vietnam and other countries that recognize the criminal liability of legal entities, the theory of identification of responsibility is used to explain this issue. The main idea of ​​the identification theory is basically expressed in the fact that this theory considers the acts and mistakes of those who manage (direct, operate) legal entities as the acts and mistakes of the legal entity itself. In other words, the conduct and fault of a legal entity are assessed through the conduct and fault of the individuals who command, manage and operate that legal entity.

In the Model Penal Code of the American Institute of Legal Research, the theory of vicarious liability is used to prescribe the criminal liability of legal entities for crimes prosecuted under the principle of objective accusation, while the theory of identification of responsibility is used to prescribe the criminal liability of legal entities for crimes prosecuted under the principle of fault. For crimes requiring criminal intent and crimes requiring signs of fault, this Code accepts the application of the theory of identification of responsibility, but for crimes that do not require criminal intent, the principle of vicarious liability is used. The theory of vicarious liability imposes responsibility on the head or organization, legal entity for the actions of employees or agents. Accordingly, anything that an employee or agent of an organization or legal entity performs on the basis of the relationship between the organization or legal entity and its employees as prescribed by law is considered to be performed by the organization or legal entity. An employee or agent must perform the tasks assigned by the employer (or organization or legal entity), and must comply with the rules and regulations set forth by the employer (organization or legal entity). Therefore, when there is a violation by an employee or agent, the employer (organization or legal entity) must bear responsibility.

2. Regarding the scope of legal entities subject to criminal liability

Article 75 of the 2015 Civil Code also stipulates commercial legal entities, according to which commercial legal entities are legal entities whose main objective is to seek profits and profits are distributed to members. Commercial legal entities include enterprises and other economic organizations. Thus, only enterprises and other economic organizations whose main objective is to seek profits can be the subjects of crimes. There is no issue of criminal liability for non-commercial legal entities, which are legal entities whose main objective is to seek profits; If there is profit, it must not be distributed to members, including state agencies, people's armed forces, political organizations, socio-political organizations, socio-political-professional organizations, social organizations, socio-professional organizations, social funds, charity funds, social enterprises and other non-commercial organizations (Article 76).

In the 2015 Penal Code, Article 2 stipulates the basis of criminal liability: “Only a commercial legal entity that commits a crime specified in Article 76 of this Code shall be held criminally responsible”. Chapter XI stipulates the criminal liability of legal entities, including 16 articles (from Article 74 to Article 89) and in a number of other specific provisions of the Code (Articles 2, 3, 8, 33, 46), showing the principle of handling commercial legal entities that commit crimes as follows: (i) All criminal acts committed by commercial legal entities must be detected promptly, handled quickly, and fairly in accordance with the law; (ii) All commercial legal entities that commit crimes are equal before the law, regardless of ownership form and economic sector; (iii) Strictly punish commercial legal entities that commit crimes using sophisticated tricks, of a professional nature, intentionally causing particularly serious consequences; (iv) Leniency for commercial legal entities that actively cooperate with responsible agencies in detecting crimes or in the process of resolving cases, voluntarily repair and compensate for damages caused, and proactively prevent or remedy consequences. This provision shows that the subject of criminal liability of legal entities in Vietnamese criminal law has a narrower scope than that of the US Criminal Law. In the US, legal entities are considered subjects that can be brought to trial and convicted for crimes committed by individual directors, managers and even low-level employees. The US is a country that applies specific criminal liability to supplement civil and administrative regulations, which other countries use as a tool to regulate the activities of legal entities.

According to criminal law, a person is only held accountable when he or she commits an act that is clearly intentional. Legal entities, unlike humans, are incapable of moral cognition, so how can a legal entity be held accountable? According to US law, the answer lies in the actions and decisions of its employees. The US Supreme Court has ruled that “the actions of a legal entity are, ultimately, the actions of its employees within the scope of the authority conferred upon it.” To hold a legal entity criminally accountable, US criminal law requires establishing the intent of the legal entity’s actions through the actions of its employees. If an employee has “actual authority” or “reasonable authority” to act, where “actual authority” is understood as the authority granted to this employee by the legal entity, “reasonable authority” is defined as “authority, in which, according to third parties, according to the representative arrangement of the organization, arising from their responsibilities and obligations to perform in the legal entity, related to their previous actions”.

3. Crimes that legal entities can be the subject of

In the criminal law of the United States, there is no limit to the scope of crimes attributed to legal entities. That means that under the criminal law of this country, legal entities can be held criminally responsible for any crime prescribed in the criminal law. Thus, in terms of legislative techniques, the United States has accepted a system of general provisions regulating the criminal responsibility of legal entities. This choice in practice encounters certain difficulties, forcing the court, when applying the law, to set specific standards to determine which crimes a legal entity can commit, which crimes a legal entity cannot commit or cannot be prosecuted for criminal liability. In the trial practice of the US court studied, the criminal liability of a legal entity is applied to all types of crimes in Common law or statutory law, including crimes committed with criminal intent, unintentional negligence or recklessness.

In Vietnam, commercial legal entities are only criminally liable for 31 crimes stipulated in the 2015 Penal Code, of which 22 are in Chapter XVIII. Crimes against economic management order and 09 are in Chapter XIX. Environmental crimes, if committing one of these crimes, the commercial legal entity must bear criminal liability (Article 76). This provision shows that the type of crimes that legal entities must bear in the Penal Code has a narrower scope than the US Penal Code.

4. Penalties applied to legal entities

Because it is impossible to use prison sentences to restrict or deprive legal entities of their freedom as applied to individuals who commit crimes. Therefore, criminal law in the US and Vietnam both stipulate that the penalty applied to legal entities that commit crimes is mainly a fine as the main penalty.

However, in US criminal law, if based on the actions and decisions of the employees of the legal entity. The US Federal Court of Appeals has ruled that the activities of a legal entity are, ultimately, the actions of its employees within the scope of the authority granted. To prosecute a legal entity, US criminal law requires determining the intention of the legal entity's activities through the actions of its employees. If the employee has “actual authority” or “authority on the basis of reasonable anticipation” to act, in which “actual authority” is understood as the authority granted by the legal entity to this employee, “authority on the basis of reasonable anticipation” is defined as: authority, in which, according to third parties, according to the representative arrangement of the organization, arising from their responsibilities and obligations to perform in the legal entity, related to their previous actions. In Vietnam, the 2015 Penal Code for each crime, a commercial legal entity committing a crime is only subject to one main penalty and may be subject to one or more additional penalties. Main penalties include: Fines (Article 77), temporary suspension of operations (Article 78), permanent suspension of operations (Article 79). Additional penalties include: Prohibition of business, prohibition of operations in certain fields (Article 80), prohibition of capital mobilization (Article 81) and judicial measures applied to commercial legal entities committing crimes (Article 82).

5. Conclusion

The author see that the provisions in the 2015 Penal Code have deepened and completed the theoretical system of criminal law science, which has previously only recognized criminal responsibility for individuals. The addition of provisions on criminal responsibility for legal entities does not change the theoretical system of criminal law, but on the contrary, it helps this branch of science diversify and enrich its theories on crime and punishment. In addition, these provisions have met the requirements of the trend of deep international integration, including legislative activities. On the other hand, the process of international integration and the strong development of the market economy show that the situation of law violations by legal entities is complicated and increasingly serious.

The US experience shows that the legal issues that arise in the prosecution of legal entities, such as the ability to determine the state of intent in the activities of organizations, as well as the ability to apply an appropriate penalty, can be easily resolved. However, the criminal liability regime of legal entities is a powerful law enforcement weapon with the potential to cause serious consequences. Therefore, the introduction of this regime into the criminal law of the country must simultaneously introduce strict guidelines for ensuring, responsible and appropriate application to prevent illegal acts of enterprises and have strict enforcement measures that are sufficiently deterrent to legal entities.

References:

1. Cao Thi Oanh, Comparative study of theoretical and practical bases for applying criminal liability to organizations, Summary report of the ministerial-level scientific research project, Institute of Legal Sciences, Hanoi, 2011.
2. Edward B. Diskant, “Comparative Corporate Criminal Liability: Exploring the Uniquely American Doctrine. Through Comparative Criminal Procedure.” The Yale Law Journal, October 2008, v.118:i1, p.126-176, at p. 128.
3. United States v. Bank of New England , N.A., 821 F .2d 844, 855 (1st Cir. 1987).
4. Joel M. Androphy, Richard G. Paxton & Keith A. Byers, General Corporate Criminal Liability, 60 Tex. B.J. 121 (1997).
5. United States v. BI-Co Pavers, 741 F .2d 730, 737 (5th Cir. 1984).