On January 1, 2015, the Criminal Procedure Code No. 101/2015/QH13 which was issued by the National Assembly on November 27, 2015 (“CPC 2015”), officially came into effect. In line with the new provisions of the Penal Code 2015, especially the Criminal Liabilities of the corporate legal entity, the CPC 2015 represents a new step in the legislative and regulatory frameworks in comparison with the provisions of the Criminal Procedure Code in 2003.

mediumThe CPC 2015 is composed of 8 parts, 37 chapters and 510 articles, supplementing many provisions on (i) the order and procedures for handling criminal cases; (ii) the functions, duties, powers and relationships between the authorities who institute legal proceedings; (iii) duties, powers and responsibilities of Individuals given authority to institute proceedings; (iv) the rights and obligations of participants in legal proceedings, of agencies, organizations and citizens; (v) International cooperation in criminal proceedings, in order to actively prevent and stop crimes, to detect accurately and quickly, and to handle justly and promptly all criminal acts, not to miss any criminals, not to make innocent people guilty.

In terms of the process for dealing with a criminal case, the new CPC covers four main phases, similarly to the process in the code of 2003, but it is supplemented by a number of other procedures, such as the Group of special litigation procedures (with minors, legal entities, and shortened procedures); Group of special investigation measures; Procedures for reviewing judgments and decisions which are in effect, … The goal of the CPC 2015 is to ensure fairness and to respect the law throughout the conduct of legal proceedings, to emphasize the monitoring role of the Procuracy and the Standing Committee of the National Assembly, to enhance international cooperation in the judiciary in line with international treaties to which Vietnam is a member …

The following is a summary of noteworthy points in the CPC 2015:

1. Added more individuals given authority to institute proceedings1 including investigators, inspectors, and verifiers.

2. Added more authorities and persons who are assigned to perform certain activities of investigation, including Border protection force’s units, Customs authorities, Forest ranger’s units, Maritime police force’s units, Fisheries resources surveillances units, People’s police force’s units, and other units in the People’s Army2. The persons assigned to the task include personnel, heads and vice heads of above-mentioned authorities3. The organizational principles, assignments, and powers of these

bodies and titles must comply with the provisions of the Law on the organization of criminal investigation authorities4, which is effective at the same time as the CPC.

3. Added more participants in the legal proceeding5, specified in Article 55 of the CPC 2015. At the present, “the accused” and “defendant” definitions shall include both individuals and legal persons, which are consistent with the interpretations prescribed by the Penal Code of 2015.

4. Grounds to identify signs of crime6: Added State agencies’ requisitions for charges.

5. Additional cases of non-prosecution7 are those prescribed in Clause 1 of Articles 134, 135, 136, 138, 139, 141, 143, 155 and 156, and Article 226 of the Penal Code 2015 that the crime victims or their representative do not ask for prosecution.

6. Decentralization of investigative authority is also more prominent8.

7. Regulated the time limit for authorities conducting an investigation9 and supplemented the contents of the investigation time limit10.

8. Issued sanctions applied to agencies, organizations, and individuals who fail to abide by the decisions and requests of the investigating bodies or procuracies11.

9. Additional provisions on the prosecution against legal persons.

10. Specified the time limit of examination and confirmed that this is a ground to resolve the case quickly.

11. New regulations on asset valuation, including Articles 215 through 222.

12. Special investigation measures12 include Secret recording by sound or sound-and-visual means; Secret phone tapping; a secret collection of electronic data. These measures applied under circumstances13 where a breach of national security, drug-related crimes, corruption, terrorism, money laundering, other organized crimes which are a particularly serious crime. The time limit for application of special investigation measures14 shall not exceed 02 months as from the date of being approved by the heads of the procuracies.

13. New regulations on arrangements to ensure equality between prosecutors and lawyers and other defense counsel in the courtroom15.

14. The contents and activities of the deliberation of the judgement of the trial panel must be recorded in writing16.

15. The new regulation on the jurisdiction of the Danang People’s Court in cases where the defendant’s last residential place cannot be determined at the stage of the first instance-court17.

16. Added more individuals who are entitled to appeal according to the cassation procedures: the court president of the Supreme People’s Courts and the head of the Supreme People’s Procuracy18.

17. Added to the authorities who have the rights to send the cassation appeal decision19.

18. A supplemented individual who is competent to appeal under the reopening procedure: the head of Supreme People’s Procuracy20.

19. Added the rights of a Judicial panel of reopening: Suspension of the reopening21.

20. Procedures for the review of rulings by the justices’ council of the Supreme People’s court22 applied only when there are (i) grounds that indicate the serious breach of laws in the rulings by the Justices’ Council of the Supreme; or (ii) the revelation of new significant facts that were beyond the knowledge of the Justices’ Council of the Supreme People’s Court upon the passing of its rulings and may alter the fundamentals of such rulings23. The process shall start with the Justices’ Council of the Supreme People’s Court’s meeting and review upon the requests by the Standing Committee of the National Assembly, or as per the requisitions by the Judiciary Committee of the National Assembly or the head of the Supreme People’s Procuracy, or according to the propositions by President of the Supreme People’s Court.

21. Special procedures for juveniles: First time to legalize the principle of conducting criminal procedures for juveniles, in which it ensures the procedures friendly, suitable with psychology, age, maturity level, cognitive ability, personal privacy, legal

rights, and benefits… 24The procedures apply not only to the accused but also to the victim or witness25.

22. Procedures for prosecuting criminal liability of legal entities

For the first time, the Penal Code 2015 regulates criminal proceedings against criminal offenders made by legal entities, hence the CPC 2015 provides regulations for prosecuting their criminal liability.

– When detecting signs of crimes committed by legal entities, competent agencies shall issue decisions to institute criminal cases according to regulations on grounds for instituting criminal cases, competence to institute criminal cases, and decision on prosecuting a criminal case.

– The grounds, order, and procedures for changing or supplementing decisions to institute criminal cases shall be conducted in the same manner with the regulations applicable to individuals committing crimes26.

– The competence, order, and procedures for initiating criminal proceedings against the accused, changing or supplementing decisions to prosecute defendants against legal entities shall be conducted in the same manner with the regulations applicable to individuals committing crimes27.

– The legal representative of the juridical persons participating in the proceedings: If this individual is prosecuted, investigated, tried or cannot participate in the proceedings, the legal entities must appoint another person to act as his representative at law. In the case where juridical persons change their representatives, they must immediately notify such to the bodies competent to conduct the proceedings. At the time of prosecution, investigating, or adjudicating the legal entities without a legal representative or having more than one legal representative at the same time, the competent procedure-conducting body shall designate one person to represent legal entities participating in legal proceedings28.

Coercive measures against legal entities include: (i) Distrainment of assets linked with the juridical person’s criminal acts; (ii) Freeze the juridical person’s accounts in connection with its criminal acts; (iii) Suspend the juridical person’s operations associated with its criminal acts in limited time; (iv) Impose a pecuniary guarantee of the enforcement of sentences. The length of time of coercive measures shall not exceed the time limit for investigation, prosecution, and adjudication29.

– Issues need proving when conducting legal proceedings against a charged legal entities: (i) Whether or not a criminal offense has occurred, the time, location and other details of the criminal offense, which are prescribed as criminal liability of legal entities by

the Penal Code; (ii) The fault of the legal entity, the fault of the individual who is a member of the legal entity; (iii) The nature and extent of damage caused by the criminal act of the jurisdical person; (iv) Extenuating circumstances, aggravating the criminal liability and other circumstances related to the penalty exemption; (v) Causes and conditions of crime30.

– Jurisdiction to adjudicate juridical person belongs the court where the legal person commits the offense. Where the crime is committed in different places, the jurisdiction shall belong to the court where the legal person is headquartered or where its branch commits the offense.

– The first-instance, appellate, cassation or retrial courts against criminal offenders shall be conducted according to general procedures31.

– Judgment execution for juridical persons: The order and procedures for executing the penalties shall be implemented in accordance with the provisions of the Law on Execution of Civil Judgments. Where a legal person is convicted after dividing, splitting, consolidating or merging, the legal person who inherits the rights and obligations of the convicted person shall be responsible for executing the fines and compensating harm32.

23. Shortened procedures are applied during the investigation, prosecution and first-instance trials33 when the following conditions are met: (i) The person committing the offense has been caught or confessed; (ii) Simple offenses, clear evidence; (iii) The crime committed is less serious; (iv) The offender has clear place of residence and profile.

24. Regulations on the handling the acts of obstructing criminal proceedings: The forms, competence, order, and procedures for sanctioning the acts of obstructing criminal proceedings shall comply with the provisions of the Law on Handling of Administrative Violations and other relevant laws34.

25. Protection over the denouncers of criminals, witnesses, victims and other persons involved in legal proceedings. For the purpose of protecting justice, protecting the right to help those who strictly comply with the law35.

26. International cooperation

– The CPC 2015 structures the eighth section with the provisions on international cooperation, to clearly delineate the scope of cooperation, to promote and to perfect the regulation of cooperation.

– The contents mentioned and supplemented include:

– The conduct of legal proceedings by competent Vietnamese persons overseas and the competent persons of foreign countries in Vietnam.

– The presence of foreign witnesses, experts, persons serving imprisonment sentences in Vietnam; Vietnamese witnesses, experts, persons serving imprisonment sentences in foreign countries.

– International cooperation activities under treaties to which Vietnam is a contracting party, the law on legal assistance and other relevant laws.


DISCLAIMER

This LBN newsletter are NOT legal advice. Readers are advised to retain a qualified lawyer, should they wish to seek legal advice. VCI Legal are certainly among those and happy to be retained, yet VCI Legal is not to be hold responsible should any reader choose to interpret/apply the regulations after reading this LBN without engaging a qualified lawyer.

About VCI Legal:

VCI Legal is an international award-winning, full service business law firm in Vietnam. The firm provides a wide range of advisory services and has gained a strong reputation for successfully handling corporate, commercial, financial and contentious matters. The firm’s practice areas which have been highly recommended by various international magazines and agencies include: Corporate/M&A, Banking and Finance, Capital Markets, Insurance, FDI, cross-border transactions, Competition, Dispute Resolution, Energy, Infrastructure, IPRs Management and Real Estate.

Download here: 5 Criminal Procedures