Meanwhile, according to Article 76, Vietnam‘s Criminal Code 2015, commercial legal entities have to be subjected to 33 types of criminal liability regulated in 33 statutes stat[r]
Trang 1CRIMINAL LIABILITY OF COMMERCIAL LEGAL ENTITIES
IN VIETNAM’S CRIMINAL LAW PRIOR TO THE CHANGING OF TIMES
Sci-Dr.Prof Le Cam (Head Manager of Criminal law and Criminology Center, School of Law Vietnam National University) & Vu Dinh Hoang (Honor program Bachelor,
School of Law Vietnam National University)
Abstract: The article demonstrates scientific analysis about theoretical, criminal
legislative issues of the regulations which related to criminal liability of commercial legal entities committing criminal offense in Vietnam‘s Criminal Code 2015 amended 2017 prior to the changing of times in order to clarify the drawbacks during the process of applying these statutes, the reasons for it, as well as providing some guidelines to overcome these demerits
by improving the rules which regulated about criminal liability of commercial legal entities in the future Criminal code of Vietnam in the fourth Legislation
Keywords: Opinions about criminal liability of commercial legal entities; Criminal
liability of commercial legal entities in criminal law legislation; Subjects of crime; The solidarity in crime commitment
I Discussion
1 During the period of judicial reformation, as well as building up a Rule of law State and
especially prior to the changing of recent era, the researches on theoretical issues of criminal liability of commercial legal entities in criminal science of our country are very crucial The importance of it can be seen in 3 different aspects (Legislation, reasoning and in practice):
1.1 In the Legislative aspect, Chapter XI "Regulation applied for commercial legal
entities committing criminal offense" and other rules related to legal entities in the first part of Vietnam‘s Criminal code 2015 "General Provision" have some certain negatives However, basically, these regulations can temporarily be considered as a victory of Criminal law researchers in Vietnam prior to the trend that supports for the legislative recognition of criminal liability of commercial legal entities, especially for the rest of the authors who participated in editorial team of Vietnam‘s Criminal Code 2015 of The Ministry of Justice (In the past, statutes on criminal liability of legal entities had been about to be regulated in Vietnam‘s Criminal Code 1999 according to editorial team members' desire but for for some reasons, it had not been stated in the Code) Recently, there are many legislation difficulties in law enforcement of these regulations which can be listed:
1) Under the perspective of criminal procedure law, how will commercial legal entities
be prosecuted for criminal liability? Because according to the practice which is confirmed commonly when committing a crime, criminal liability of that subject must be stated in the Criminal Code, then the Criminal procedure Code will adjust procedural process; 2) However,
in practical, Vietnamese law makers have done it in an opposite way, in Vietnam‘s Criminal procedure Code 2015, the criminal liability of commercial legal entities is stated individually
Trang 2in 01 Chapter XXIX: "The procedure for criminal prosecution of judicial person" including 16 articles (from 431 - 446) (Note, Chapter XXIX only regulated procedure for criminal prosecution
of "judicial person" which is different from statutes in the Criminal Code 2015 - "Commercial legal entities"); 3) Moreover, The Criminal Code 2015 was postponed and amended till June
2017, meanwhile the regulations which are regulated in the Procedure Code 2015 on procedure for criminal prosecution of judicial person have been remained unchanged (!)
1.2 Although it was until 2015 that the criminal liability of judicial person was first
recognized and regulated in both Criminal Code and Criminal procedure Code 2015, in fact, the basis studies about this subject has been processed generally during the last 2 decades (Even it was attested to have been started since the execution of The 1999 Criminal Code of Vietnam) Since then, there have been many researches which were conducted about liability
of judicial person in general, as well as that of commercial legal entities in particular61, especially recent researches of Prof Nguyen Ngoc Hoa, one of the greatest Criminologists62 with
a very accurate and informative analysis which related to regulations on criminal liability of commercial legal entities in some countries in the world and also that of Vietnam in The 2015 Criminal Code
1.3 Finally, in practical, even having been regulated in both Criminal law and Criminal
procedure law, since 2015, no commercial Judicial person has been prosecuted by Legal protection agencies of Vietnam because of several certain difficulties So why? This question has been asked from the perspective view of practical which forces us to take a look back at the subject: Criminal liability of commercial legal entities under 2 different aspects: Theory and Criminal law legislation in order to find out the exact reasons, as well as a satisfactory answer to
solve that problem (!)2 All above analysis has shown that a correct and proper scientific
awareness about those topics above will generate a positive and significant support which not only orientates the process of improving regulations on criminal liability of commercial legal entities in Vietnam‘s Criminal law in the future but also creates essential condition for applying statutes on criminal liability of commercial legal entities during the procedure of committing a crime from prosecution to criminal trial As a result, no crimes will be missed,
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See more specifically: For example, Pham Hong Hai Can a legal entity be a subject of crime? ─ Law Journal, No 6/1999; Le Cam Criminal liability of legal entities: Some theoretical and practical issues ─ People's Court Journal, No 3/2000, p 8-13; Le Van Cam Section IV Criminal liability of legal entity in Chapter Six "Criminal liability" ─ In
Graduate Monographs: Basic Issues in Criminal Law Science (General Section) Publisher of Hanoi National University,
2005 p 640-655; Tran Van Do Theories on the basis of criminal liability of legal entities ─ State and law magazine,
No 6/2011; Trinh Quoc Toan Criminal responsibility of legal entities in criminal law National Political Publishing House Hanoi, 2011; Nguyen Ngoc Hoa The criminal responsibility of the subject is organized with the amendment of the Criminal Code ─ Journal of Law, No 6/2011; Hoang Hai Yen Some issues of criminal responsibility for legal entities ─ Prosecute Journal, No 4/2014; Nguyen Ngoc Hoa & Trinh Quoc Toan Subject of criminal responsibility - limited to individuals or organizations ─ In books: Nguyen Ngoc Hoa (Editor) and some other authors Modification of Criminal Code - Perceptions need to change Justice Publishing House, 2015, p 4-110; Dao Tri Uc The issue of criminal liability of legal entities in the Criminal Code ─ Journal of State and Law, No 3/2015; Hoang Tri Ngoc Some theoretical issues about criminal liability of legal entities ─ Legislative Research Journal, No 12/2015; Dinh Hoang
Quang The issue of criminal liability for legal entities in Vietnam's Criminal Code ─ Journal of State Journal and Law,
No 2/2016; Nguyen Van Huong Criminal liability of commercial legal entities according to the Criminal Code 2015 ─
The Law School Journal, No 2/2016; etc
in Vietnam's Criminal Code in 2015 ─ Journal of Law Studies, No 2/2016, p 3-13
Trang 3no commercial legal entities will be prosecuted mistakenly if they comply with the law and especially have many charitable activities for the common good of the community
3 However, because of the limitation of a science article at this workshop, in the research
scope of this paper, we - the authors are only able to mention the things that according to us, are the most fundamental and important As a result, from our point of view, it will be reasonable to
arranged the scientific contents of this article in the following order: section II "Content " which will be divided into 4 subsections: §1 Main opinions about criminal liability of legal entities in Vietnam criminal law theory; §2 Legislative techniques of regulations on criminal liability of
legal entities committed criminal offenses in current criminal law legislation, some demerits in
particular and reasons for it; §3 Orientation to overcome inadequacies in legislative techniques in
Vietnam‘s Criminal Code 2015 with the purpose to guarantee effectiveness of regulations on criminal liability of legal entities in particular
II Content
§1 Main opinions about criminal liability of legal entities in Vietnam criminal law theory
1 In the last decade of XX century, before legislating Vietnam‘s Criminal Code 1999,
from the perspective of science, researching in legal journals, books had shown some differences in the theoretical opinions of researchers which revealed the fact that legislative adjustment on legal liability of criminal entities had begun to appear since this period
1.1 First of all, there were only some opinions that supported the idea that criminal
liability of legal entities should be regulated For instance, the opinion of authors from Legal Research Institute, Ministry of Justice: " Criminal liability should only be regulated with some certain types of commercial entities, such as business, company This is the type called liability at the same time (Both legal entities and persons are criminally responsible for the same offense)" Before that, other specific legislative requests from the same author on criminal liability of judicial person had been mentioned in the draft number 10 of Vietnam‘s
Criminal Code 1999 (amended in April 1998), section 2 Article 2 "Basis of criminal liability"
that agencies, organizations and units shall bear penal liability for criminal acts committed by their representatives for the benefit of such organizations Moreover, it should be noted that criminal liability of persons was also regulated in section 1 of this article63
1.2 Until the end of XX century, in a science article which was published on The
Legal Journal, based on a criminal case which happened in Ngoc Thuy commune, Gia Lam district, Hanoi, a famous Vietnamese lawyer, Assoc Prof Pham Hong Hai presented his own thesis on considering the legal entity to be the subject of crime when it's representative performed duties which related to that entity, so their will and behavior would be considered
to be the will and behavior of that legal entity64
(3)
09 major regimes that are generally accepted by the scientific and feasible criminal law system are generally accepted as: 1) Criminal Law → 2) Crime → 3) Exclusion Crime of behavior → 4) Criminal liability → 5) Criminal enforcement measures (the penalties of our country include penalties and judicial measures) → 6) Penalty decisions → 7) Remedial measures → 8) Criminal penalties of juvenile offenders, and → 9) Criminal penalties of criminal entities
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See more specifically: Le Van Cam Section IV "Criminal liability of legal entity" Chapter six "Criminal liability" ─ In
Trang 42 After legislating the Criminal Code 2015 (17th November, 2015) till now, there have been many papers of law researchers in Vietnam mentioned and commented on regulations which related to criminal liability of commercial entities in the 2015 Code but the main purpose of this article is not to focus on analyzing opinions which were mentioned in those papers However, the researches conducted by Prof Nguyen Ngoc Hoa were the most logical and we totally agreed with his point of view65 that 1) The definition of crime would not need
to be changed when implementing criminal liability of the subjects that were not persons (But legal entities, agencies or enterprises); 2) The reason for not changing this definition was that the addition only lead to the spread of subjects' scope which had to subjected to criminal liability when committing criminal offenses It meant that subjects of crime were then included both persons and legal entities; 3) Consequently, the definition of crime, as well as other regulations on crime such as complicity, fault; stages to conduct a crime would not be changed by the manifest of statutes on criminal liability of legal entities
§2 Legislative techniques of regulations on criminal liability of legal entities committed criminal offenses in current criminal law legislation, some demerits in particular and reasons for it
By scientific analyzing under the scope of legislative techniques of regulations on commercial legal entities committing criminal offense in Chapter XI of The General provision, the Criminal Code 2015 which include 15 articles from article 74 to 89, the authors can come into some general comments below
1 The third type subject in criminal law which is commercial legal entities, has some
differences when compare it to the others: the adults and the persons who are under 18 years old However, it is such a pity that Chapter XI of The 2015 Criminal Code still lacks some regulations on criminal liability of this third type subject and one of the main reasons is that the Vietnam‘s Criminal Code 2015 do not have separate statutes on 1) Explaining special terms in Criminal Code If these explanations are regulated, it will provide benefits that clarify many important categories recorded in the Penal Code For instance, definition for subjects of criminal law, subjects committed criminal offense, subjects of criminal liability etc; 2) Legally affirming clear distinction between: criminal penalties, criminal justice measures and penalty decisions which are applied separately to each of the three offenders which have been stated above
2 The legislative technique used in the process of regulating statutes in section 1
Article 75 of Vietnam‘s Criminal Code 2015 is the clearest evident for the fact that commercial entities are not subjects of crime but subjects of criminal liability Thus, the terms
"which is done on behalf of commercial legal entities" at the end of point a section 1 indicate that there must be a certain subject (it is definitely person) that committed criminal offense on behalf of that judicial person And that is the point which is scientifically proved by Prof.Dr
graduate monographs: Basic issues of Criminal Law section Publisher of Hanoi National University, 2005, p 646-647
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Nguyen Ngoc Hoa Crime definitions and the provision (Documented guide) ─ Journal of Law, No 2/2016, p 5-11
(6) Prof.Dr Nguyen Ngoc Hoa (Editor) Scientific comments on Criminal Code 2015 Modified and supplemented in 2017
(General section) Justice Publishing House Hanoi, 2017, p 17-18.
Trang 5Nguyen Ngoc Hoa: "Commercial legal entities can not be regarded as subjects of criminal offense It should only be considered as subjects that have to subjected to criminal liability for criminal offense which committed by persons As a result, it only exists the phrase
"Commercial legal entities subjected to criminal liability" instead of "Commercial legal entities committed criminal offense"
3 The recognition of regulations on penalties and exemption methods with
commercial legal entities still lacks logical and science when these statutes are not gathered in
1 specific chapter that only mentions about criminal liability of commercial legal entities These regulations are now still scattered in different chapters such as: 1) The list of penalties applied for commercial legal entities is regulated in Article 33, chapter VI meanwhile the specific content of these penalties is specified in chapter XI from Article 77 to 81 and so on; 2) Although the list of exemption methods of commercial judicial person committed criminal offense is in chapter VII (section 2 Article 48), it's application and implications are in chapter
XI (Article 82)
4 There having been some missing regulations on exemption methods applied for
commercial legal entities committed criminal offense, as well as those who are sentenced (In the 2015 criminal Code, there are only 2 statutes about exemption from sentence and criminal records removal in Article 88 and 89 respectively)
5 The legislative techniques of statutes in Article 1 of Vietnam‘s Criminal Code 2015
show that these regulations need to be amended because there are 2 existing limitations:
5.1 For the last few decades (since the legislation of Vietnam‘s Criminal Code 1985,
then the 1999 Code and until now with the Code of 2015) Vietnam criminal law have not been able to clear the insufficiency of unify in legal logical, as well as lacking of a well organized structure and scientific accuracy The category objects protected under Article 1, as well as objects regulated in Article 8 of all 3 criminal Code (1985, 1999 and 2015) are coincide with each other Although objects in Article 1 are listed a lot, however, they are still missing some certain types, such as environment, economic and world's security which are regulated in the Code and protected by criminal justice statutes
5.2 Despite the fact that law makers have defined a separate chapter (Chapter XI) about
regulations on criminal liability of commercial legal entities committed criminal offense, statutes about objectives of the criminal Code still not mention the types of category objects protected by Vietnam‘s Criminal law (However, in the time of the 2017 amendment, this disadvantage which should have been added to the category objects mentioned in Article 1 of the Penal Code 2015 as
"legitimate business interests of commercial legal entities" has not been overcome"
6 The legislative techniques of regulations in Article 2 The Criminal Code 2015 As
mentioned above, commercial legal entity is a subject that completely different from human (a biological entity) Legal entities are not made of bone, flesh, face, nose, legs, hands, brains, as a result, they are not able to think and calculate like human (persons) which leads to the
Trang 6conclusion that they can only be jointly subjected to criminal liability with individuals for letting those persons (can be the representative, member of the Board of Directors, members of the Board of Directors or any authorized person of the law) committed criminal offense From our point of view, when continuing to improve Vietnam criminal law in the future, it is necessary to add new regulations to section 2, Article 2 "Basis of criminal liability" of Vietnam‘s Criminal Code 2015 as follows: "Only commercial legal entities let their representatives " (the rest is the same as section 2, Article 2, The 2015 Criminal Code)
7 The analysis of legislative techniques in Article 8, Vietnam‘s Criminal Code 2015
shows that when committing crimes conducted by 2 different subjects: persons and Legal persons, it is necessary to force them to subject to criminal liability but unfortunately, they (2 stated subjects) are recorded only by the same regulation with common signs ─ "intentionally or unintentionally" and violating the same objects such as "Sovereignty, independence, unity, territorial integrity of the Motherland, socialist law order " (as listed in section 1), although these 2 subjects of criminal liability are completely different to each other Consequently, it is absolutely unscientific and not very specific characteristics in terms of legislative techniques Such recognition is completely contradictory in that:
7.1 Persons as biological entities (in the flesh with the face, nose, legs, hands, brain, etc.)
have the capacity of criminal liabilities, because of the ability to think and calculate when doing behaviors base on their own intelligence (with an "intentional or unintentional faults") On the contrary, commercial legal entity is completely different from human (because it is not made of bone, is equal to meat, without face, nose, leg, hand, brain, etc.) So the question is - it is possible for this type of entity to think and calculate (?) and does it exist faults of judicial person (?) If not, why does the Penal Code 2015 stipulate that commercial legal entities "conduct " a crime and aggregate it's signs of fault (intentionally or unintentionally) with individuals (?)
7.2 Except 03 categories object groups, including "law on economics", "environment"
and "public order" (Because section 2, Article 2 "Basis of criminal liability" of the 2015 criminal Code states that "Corporate legal entity only committed a criminal offence according to statutes regulated in Article 76), we wonder that can commercial legal entities harm to other objects (similar person committed criminal offense) which are listed in section 1, Article 8 including sovereignty, political regimes, culture, national defense, safety and order of society, other fields of order of Socialist law? If not, why did law makers comply the concept of criminals committed by legal entities together with the concept of crime committed by individuals?
7.3 Meanwhile, according to Article 76, Vietnam‘s Criminal Code 2015, commercial
legal entities have to be subjected to 33 types of criminal liability regulated in 33 statutes stated
in 03/15 chapters in part II Criminal offense of the Code which are: Chapter XVIII: Economic offense (21 types of criminal liability), Chapter XIX: Environmental offense (11 types of criminal liability), Chapter XXI: Infringement upon public safety, public order (2 types of criminal liability) As can be seen, there are only 3 groups of category objects regulated in section 1 Article 8 of Vietnam‘s Criminal Code while the others are not mentioned as objects
Trang 7that can be infringed by commercial judicial persons So it is really strange for law makers to put legal entities par with individuals in a same regulation (section 1 Article 8 Vietnam‘s Criminal Code 2015)
8 There are some disadvantages and illogical in regulations on the penalties and
exemption methods which related to commercial legal entities that these statutes have not been aggregated in a specific chapter on criminal liability of commercial judicial persons These regulations are still having been stated separately in different chapter that 1) the list of penalties applied for commercial legal entities committed criminal offenses is placed in Chapter VI (Article 33) but it's contents are regulated separately in Chapters XI (from Article 77 to 81) and
so on; 2) The list of Judicial measures applied for commercial judicial persons is regulated in Chapter VII (section 2 Article 46) However, the appliance of these measures are stated in Chapter XI Article 82
9 Vietnam‘s Criminal Code 2015 still lacks of regulations on exemption from sentence
with commercial legal entities committed criminal offenses (In the 2015 Criminal Code, there are only 2 statutes on 1) exemption from sentence and 2) Conviction expungement in Article 88 and 89) Once a gain, these drawbacks are evidences proving for the need of a new regulation to explain the meaning of some vital terms, such as subjects and objects of criminal offenses, subjects of criminal liability, subjects of sentence, etc Consequently, these regulations will humanize Vietnam‘s Criminal law, as well as creating advantages for law enforcement agencies
in applying statutes of the Criminal Code in practical
10 According to the scientific analysis, under the scope of legislative techniques, of
regulations on commercial legal entities committed criminal offenses which are stated on Chapter XI, General provision section with 16 articles (from Article 74 to 89), it can be inferred that although both commercial legal entities and persons (which include adults and persons who are under 18 years old) are subjects of criminal liability, commercial judicial persons have some different characteristics when compare to others, Chapter XI still lacks of regulations on criminal liability of the third type subject (commercial legal entities) The main reason for it is the lack of specific statutes in Vietnam‘s Criminal Code 2015 about: 1) Explanation for important terms in Criminal Code such as subjects of criminal offenses and criminal liability; 2) The legislative affirmation about the differences between 3 legal systems: 1) Penalties; 2) Judicial measures and 3) Decision on sentences, which are applied separately to 3 subjects of criminal liability: 1) The adults; 2) The persons who are under 18 years old; 3) Commercial legal entities committed criminal offenses
11 It can be inferred a logic from analyzing the disadvantages in the appliance of recent
criminal law regulations on criminal liability of commercial legal entities committed criminal offenses and reasons for it that:
11.1 Since the officially appliance of Vietnam‘s Criminal Code 2015 (From 01/01/2018
until now), the law enforcement agencies are still not able to prosecute any commercial legal entities! What are reasons for it?
Trang 811.2 First of all, it is attested that the main reason for it is that during the recent period
in Vietnam, the standards of lawyers in our country are improved significantly which enables them to detect legislative errors in regulations on criminal liability of commercial legal entities, especially statutes mentioned in Article 1 and 8 of Vietnam‘s Criminal Code 2015 As a result, lawyers are able to participate in legal disputes, argue and easily earn legal victories over prosecutors During the process of prosecuting criminal liability of commercial legal entities, it is really hard for prosecutors to advocate against lawyers when statutes in Criminal Code 2015 still only regulate "Commercial legal entities committed criminal offenses" instead of "The representatives or managers of that judicial persons committed criminal offenses" although in fact, subject of criminal offenses can be a member of administrative Council, board of directors, chief accountant or person who is authorized by that commercial entities Commercial judicial persons are just legal entities as mentioned above which are not able to conduct criminal offenses
11.3 And the legislative techniques of The 2015 Criminal Code mentioned above will
lead to the results which can be witnessed on television, news and other means of public communication that in the cases which related to commercial legal entities, prosecutors were only able to committed criminal offenses with persons It will still be impossible for them to prosecute judicial persons in those cases if the Criminal Code 2015 regulations are not changed fast and timely because of the fact that commercial legal entities do not have body parts like human which unable them to conduct criminal offenses A commercial legal person can be subjected to criminal liability only when the prosecutors are able to prove that there has been solidarity between that entity with the person who is committed criminal offenses in letting individuals conduct crime with the conditions mentioned in section 1 Article 75, the Penal Code
of 2015 Unfortunately, the idea for a group of terms that regulate on the solidarity between judicial persons and individuals has not been mentioned yet in Vietnam‘s Criminal law
11.4 Meanwhile, it is such a pity that Vietnam‘s Criminal Code 2015 still not have
regulations above which lead to the consequence that it having been impossible for prosecutors to commit criminal offenses with commercial legal entities (both both domestic and foreign judicial persons) in the last 2 years
§3 Orientation to overcome inadequacies in legislative techniques in Vietnam’s Criminal Code 2015 with the purpose to guarantee effectiveness of regulations on criminal liability of legal entities in particular
From the ideas which are analyzed above, we are about to give some orientations to improve the legislative techniques used in the 2015 Penal Code in order to guarantee the appliances of regulations on criminal liability of commercial legal entities in particular which are listed below:
1 It is essential to regulated in the future Criminal Code 1 specific statute that provide
the official explanations from lawmakers on meaning of the terms related to criminal liability
of commercial legal entities The explanation should be organized and divided into different categories with different levels From our point of view, there will be 4 separate categories:
Trang 91.1 "Subject of criminal offenses" is the person who intentionally or unintentionally
conducts criminal offenses or/and participated in conducting criminal offenses which are regulated in the Criminal Code
1.2 "Subject of criminal liability" is the person who:
a) intentionally or unintentionally conducts criminal offenses or/and participated in conducting criminal offenses
b) Commercial legal entities who has a solidarity in letting their representative or the person authorized by them to commit criminal offenses for their own interests and with their direction, administration or approval, they must bear (be investigated) criminal liability with the offenders
1.3 "Commercial legal entities committed criminal offenses" are judicial persons who
has a solidarity in letting their representative or the person authorized by them to commit criminal offenses, which are regulated in The Criminal Code, for their own interests and with their direction, administration or approval
1.4 "Commercial legal entities subjected criminal liability" for having a solidarity in
letting their representative or the person authorized by them to commit criminal offenses, which are regulated in The Criminal Code, for their own interests and with their direction, administration or approval
2 In consequence, subjectively, criminal offenses are acts that can be shown in 3 main
aspects: 1) Conducting by persons who have criminal liability 2) those persons' age is enough
to subject to criminal liability and 3) the criminal offenses are conducted with faults Especially with the recognition of criminal liability of commercial legal entities in The Penal Code 2015, when mentioning the subjective aspect of criminal offenses, agency conducting proceedings must have a clear scientific comprehension of this mater, as well as clarifying definitively 3 cases when individuals committed criminal offenses with complicated details (which are mentioned below) to guarantee the accuracy in prosecuting crimes
2.1 The first case - In most crime elements in Vietnam‘s Criminal Code 2015,
subjects of criminal offenses and criminal liability as well are the persons who committed crimes (this case is applied for both individual and complicity criminal offenses)
2.2 The second case - According to 33 types of crime elements regulated in Article 76
Vietnam‘s Criminal Code 2015 about commercial legal entities committed criminal offenses, subjects of crimes in this case can only be persons (this case is applied for both individual and complicity criminal offenses) These subjects can be divided into 2 categories: 1) The first category - Subjects of criminal offenses are the persons who conducted crimes individually which means that they (both individual and complicity criminal offenses) committed crime with out any solidarity with judicial persons (similar to the first case mentioned above) and; 2) subjects of criminal offenses in second category - the individuals that conducted crimes have a solidarity with commercial legal entities which is regulated in Article 75 Vietnam‘s Criminal Code 2015
Trang 102.3 And the third case - with subjects of criminal offenses in the second case, we can
divide it into 2 separate subjects of criminal liability which means that there could be 2 subjects must be dealt with criminally for the same criminal offense In this case, prosecutors can only accuse criminal offenses with commercial legal entities if they can prove appropriately and persuasively, there is a certain subjective association of that legal entities in the damage that has been caused by objective behavior of the individuals Consequently, 3 different circumstances of prosecution will appear (including both objective and subjective) which must be noted by agency conducting proceedings
1) In the case of simple subjective accusation - there is only 1 type of subject of criminal offenses (that has full conditions regulated in section 1 Article 75 the 2015 Criminal Code), as well as 1 type of subject of criminal liability including the individuals conducted criminal offenses directly and their accomplices which can be persons of Administrative Council, board of directors and Chief accountant, as well They had represented for that commercial legal entities and involved, connected with each other to benefit from criminal acts with out notifying to other members who had rights to administrate that legal entities and did not get any beneficial from these acts More over, their acts did not harm to the profit of the commercial judicial persons
2) In the case of complex subjective accusation which is similar to the first case with 1 type of subject of criminal offenses and 1 type of subject of criminal liability, however, in this case all members of Administrative Council, board of directors, etc are persons who involved in conducting that criminal offenses as accomplices and get beneficial from that criminal acts In this case, the profit from criminal offenses will also be shared to other members of that entities
3) In the case of objective accusation, there are no subjects of criminal offenses but it does exist 1 type of subject of criminal liability which is commercial legal entity It means that actual damage results from the objective criminal acts which happen without any human impact on it For instance: Due to heavy rain and storms in a stormy night, there was 01 100
KV high voltage pylon broken by strong winds and smashed into a nearby apartment building causing property damage and death for some citizens In this case, a criminal case can still be prosecuted, however, the agency conducting proceedings will not able to prove subjective faults of any individual Consequently, there will be no individual that have to subject to criminal liability but the corresponding commercial judicial person that invest and build up those 100 KV electric poles can be subjected to criminal liability In this case the accusation
of that judicial person can be considered as objective charge because the consequences (damage) actually happened and depending on specific circumstances of the case that penalties will be imposed on commercial legal entity prescribed by criminal law
2.4 The examples in 3 cases above have given us sufficient grounds to assert the
perfectly correct thesis mentioned above of Prof Nguyen Ngoc Hoa that commercial legal entities can not be subjects committed criminal offenses, they can only be considered as subjects of criminal liability