Resolution 02/2019/NQ-HDTP guidelines Article 150 concerning human trafficking of Criminal Code

RESOLUTION

Guiding the application of the Penal Code’s Article 150 on human trafficking and Article 151 on trafficking in persons aged under 16 years^[1]

THE JUDICIAL COUNCIL OF THE SUPREME PEOPLE’S COURT

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

In order to properly and uniformly apply the Penal Code’s Article 150 on human trafficking and Article 151 on trafficking in persons aged under 16 years;

After consulting the Procurator General of the Supreme People’s Procuracy and Minister of Justice,

RESOLVES:

Chapter I

GENERAL GUIDANCE

Article 1.Scope of regulation

This Resolution guides the application of the Penal Code’s Article 150 on human trafficking and Article 151 on trafficking in persons aged under 16 years.

Article 2.Some circumstances for crime determination

1.Human traffickingmeans the use of force, threat to use force, deception, or employment of another trick to commit one of the following acts:

a/ Transferring a person in order to receive money, property or other material benefits;

b/ Receiving a person in order to transfer money, property or other material benefits;

c/ Transferring a person for sexual exploitation, forced labor, taking of a body organ, or for another inhuman purpose;

d/ Receiving a person for sexual exploitation, forced labor, taking of a body organ, or for another inhuman purpose;

dd/ Recruiting, transporting or harboring another person to commit the act of transferring a person as prescribed at Points a and c of this Clause.

2.Trafficking in humans aged under 16 yearsmeans the commission of one of the following acts:

a/ Transferring a person aged under 16 years in order to receive money, property or other material benefits, except the case of transfer for the humanitarian purpose;

b/ Receiving a person aged under 16 years in order to transfer money, property or other material benefits, except the case of receipt for the humanitarian purpose;

c/ Transferring a person aged under 16 years for sexual exploitation, forced labor, taking of a body organ, or for another inhuman purpose;

d/ Receiving a person aged under 16 years for sexual exploitation, forced labor, taking of a body organ, or for another inhuman purpose;

dd/ Recruiting, transporting or harboring a person aged under 16 years to commit the act of transferring a person as prescribed at Points a and c of this Clause.

3.Another trickprescribed in Clause 1, Article 150 of the Penal Code means one of such tricks as kidnapping the victim; deceiving the victim into taking sleeping pills or anesthetic, or drinking alcohol, beer or another strong stimulant to become incapable of cognizing or controlling his/her acts; poisoning the victim; taking advantage of one’s status as a marriage broker or an intermediary for sending laborers to work abroad; abusing one’s position or powers; taking advantage of dependent situation of the victim; and taking advantage of highly vulnerable or distressing circumstance of the victim (for example, the victim has a family member who is seriously ill and needs money for medical treatment) to commit one of the acts guided in Clause 1 of this Article.

4.For sexual exploitationprescribed at Point b, Clause 1, Article 150, and Point b, Clause 1, Article 151, of the Penal Code means the case where the victim is transferred, received or recruited, transported or harbored before being transferred to another person for taking acts of sexual exploitation (such as forcing or bringing the victim to a whorehouse to prostitute, using him/her to make pornographic products, or forcing him/her to perform in sex shows or act as a sex slave) or where the victim is received by another person to serve the latter’s sexual needs.

5.For forced laborprescribed at Point b, Clause 1, Article 150, and Point b, Clause 1, Article 151, of the Penal Code means the use of force or threat to use force or another trick to force the victim to work against his/her will.

6.For taking of a body organprescribed at Point b, Clause 1, Article 150, and Point b, Clause 1, Article 151, of the Penal Code means the case where the victim is transferred, received, or recruited, transported or harbored before being transferred for taking of his/her body organ(s).

A body organ means part of a human body made of different types of tissue to perform certain physical functions of humans.

For example: Nguyen Van A transfers Nguyen Thi C to Nguyen Van B for B to take C’s cornea (in fact, B has not yet taken C’s cornea).

7.For another inhuman purposeprescribed at Point b, Clause 1, Article 150, and Point b, Clause 1, Article 151, of the Penal Code means using the victim for an experiment, forcing the victim to beg, or using the victim for another cruel purpose.

Article 3.Some circumstances for determination of penalties

1.In an organized mannerprescribed at Point a, Clause 2, Article 150, and Point a, Clause 3, Article 151, of the Penal Code means a form of complicity with close collusion and assignment of roles of accomplices in committing a crime.

2.With a despicable motiveprescribed at Point b, Clause 2, Article 150, and Point g, Clause 2, Article 151, of the Penal Code means the case where the offender commits a criminal act for the purpose of revenge or shirking his/her own responsibility or against a person to whom he/she owes a favor or another criminal act showing his/her infidelity or treachery.

For example: Nguyen Van A sells Nguyen Thi C (his lover) to another person after knowing that C is pregnant by him.

3.Bringing the victim out of the border of the Socialist Republic of Vietnamprescribed at Point d, Clause 2, Article 150, and Point dd, Clause 2, Article 151, of the Penal Code means the case where the offender has brought or is bringing the victim out of the national border on land or sea, in the air or underground of the Socialist Republic of Vietnam. Having completed the exit procedures for the victim is also regarded as having brought the victim out of the border of the Socialist Republic of Vietnam.

4.Committing the crime twice or moreprescribed at Point e, Clause 2, Article 150, and Point e, Clause 2, Article 151, of the Penal Code means the case where the offender has committed the criminal act of human trafficking or trafficking in a person aged under 16 years for twice or more but has not yet been examined for penal liability and the statute of limitations for examination of his/her penal liability has not expired.

For example: On June 15, 2018, Nguyen Van A committed the act of human trafficking. On July 20, 2018, he again committed the act of human trafficking and was then arrested. For both times of crime commission, he has not yet been examined for penal liability for human trafficking. In this case, he shall be examined for penal liability for human trafficking under Point e, Clause 2, Article 150 of the Penal Code.

5.In a professional mannerprescribed at Point a, Clause 3, Article 150, and Point b, Clause 3, Article 151, of the Penal Code means the case where the offender has committed the act of human trafficking or trafficking in a person aged under 16 years for five times or more (regardless of whether he/she has or has not yet been examined for penal liability, provided that the statute of limitations for examination of his/her penal liability has not expired or his/her previous convictions have not yet been remitted) and he/she has earned illicit profits from such act as his/her main source of living.

6.Having taken a body organ of the victimprescribed at Point b, Clause 3, Article 150, and Point d, Clause 3, Article 151, of the Penal Code means the case where the offender trafficked in a person or a person aged under 16 years to another person who has later taken a body organ of the victim.

For example: Nguyen Van A sold Nguyen Thi C to Nguyen Van B who has later taken C’s cornea.

Chapter II

EXAMINATION OF PENAL LIABILITY IN SOME SPECIFIC CASES

Article 4.Examination of penal liability in case of employing the trick of brokering marriage with foreigners

1. A person who employs the trick of brokering marriage with foreigners shall be examined for penal liability for human trafficking under Article 150 of the Penal Code if his/her act is one of the following:

a/ Forcing, intimidating or deceiving another person to get married to a foreigner and then transferring him/her to the foreigner for receiving money, property or other material benefits;

b/ Forcing, intimidating or deceiving another person to get married to a foreigner and then transferring him/her to the foreigner for sexual exploitation, forced labor or taking of a body organ, or for another inhuman purpose;

c/ Taking advantage of his/her status as the broker for marriage with foreigners to recruit, transport or harbor another person before transferring him/her to a foreigner for sexual exploitation, forced labor or taking of a body organ, or for another inhuman purpose.

2. A broker who knows that the real intention of a foreigner is to, through blind dates, spouse selection or arranged marriage, bring the chosen person abroad for sexual exploitation, forced labor, taking of a body organ, or sale to another person, or for another inhuman purpose but still performs the brokering act in order to receive money or other material benefits from the foreigner shall be examined for penal liability for human trafficking under Article 150 of the Penal Code.

Article 5.Examination of penal liability in case of employing the trick of sending laborers to work abroad

1. A person who employs the trick of sending laborers to work abroad shall be examined for penal liability for human trafficking under Article 150 of the Penal Code if his/her act is one of the following:

a/ Deceiving or forcing a laborer to be transferred to a foreign party in order to receive money or other material benefits though knowing that such laborer (who is aged full 16 years or older) will be a victim of sexual exploitation, forced labor, taking of a body organ or another inhuman act abroad;

b/ Transferring a laborer (who is aged full 16 years or older) to a foreign party for sale to another person;

c/ Recruiting, transporting or harboring a laborer (who is aged full 16 years or older) for transfer to a foreign party for sexual exploitation, forced labor, taking of a body organ or another inhuman purpose.

2. A person who employs the trick of brokering the sending of laborers to work abroad to swindle or abuse their trust to appropriate their property (for example: after having received their money, he/she flees or fails to send them to work abroad) shall not be examined for penal liability for human trafficking but shall, on a case-by-case basis, be examined for penal liability for appropriating property through swindle or abusing trust in order to appropriate property.

3. A person who organizes for or forces another person to stay abroad neither for the purpose of sexual exploitation, forced labor, taking of a body organ nor another inhuman purpose shall not be examined for penal liability for human trafficking but shall, on a case-by-case basis, be examined for penal liability for organizing or brokering illegal emigration or illegally staying abroad or for forcing other persons to illegally emigrate or stay abroad.

Article 6.Examination of penal liability in case the offender has taken a body organ of the victim

1. The offender who has taken a body organ crucial to the life of a victim (e.g., heart or liver) causing the latter’s death shall be examined for penal liability for murder under Point h, Clause 1, Article 123 of the Penal Code.

2. The offender who has taken a body organ of a victim but does not fall into the case guided in Clause 1 of this Article shall be examined for penal liability for human trafficking under Point b, Clause 3, Article 150 of the Penal Code. In this case, if inflicting injury to, causing harm to the health of, or causing mental and behavioral disorders to, the victim with an injury rate of 61% or higher or causing the victim’s death due to infection or suicide shall, on a case-by-case basis, also be examined for penal liability under Point c or d, Clause 3, Article 150 of the Penal Code.

Article 7.Examination of penal liability in case of employing the trick of brokering child adoption

1. A person who employs the trick of brokering the adoption of an under-16 child shall be examined for penal liability for trafficking in a person aged under 16 years under Article 151 of the Penal Code if his/her act is one of the following:

a/ Transferring the victim to receive money, property or other material benefits though knowing that the real intention of the adopter is to sexually exploit him/her, force him/her to labor, take his/her body organs or sell him/her to another person or use him/her for another inhuman purpose;

b/ Taking advantage of the child adoption for sexual exploitation, forced labor, taking of a body organ or another inhuman purpose;

c/ Abusing his/her position and powers to receive money, property or other material benefits in order to act as a broker for the illegal child adoption or to facilitate the illegal brokerage and child adoption though knowing that the real intention of the adopter is to sexually exploit the adopted child, force him/her to labor, take his/her body organs or use him/her for another inhuman purpose.

2. A person with position and powers who has abused his/her position and powers to receive money, property or other material benefits to act as a broker for an illegal child adoption or to facilitate an illegal brokerage and child adoption without knowing that the real intention of the adopter is to sexually exploit the adopted child, force him/her to labor, take his/her body organs or use him/her for another inhuman purpose shall not be examined for penal liability for trafficking in a person aged under 16 years but shall, on a case-by-case basis, be examined for penal liability for another crime under the Penal Code.

3. In case of a person who knows that another person really needs to adopt a child (for he/she is barren or fond of children) and has brokered for the latter to adopt a child of a person who, due to difficult family circumstances, wishes to give his/her offspring up for adoption, and received a sum of money for brokerage, then the broker, the person giving up his/her child for adoption, and the adopter shall not be examined for penal liability for trafficking in a person aged under 16 years.

Article 8.Examination of penal liability in case of more than one criminal act

In case an offender, in the course of committing the act of human trafficking or trafficking in a person aged under 16 years, also commits other criminal acts, he/she shall, in addition to being examined for penal liability for human trafficking or trafficking in a person aged under 16 years, also be examined for penal liability for other crimes under the Penal Code.

For example: Nguyen Van A bought Nguyen Thi C for sale. While trying to sell C, A beat her, causing a 30% body injury to C. In this case, A shall be examined for penal liability for human trafficking and intentionally inflicting injury to another person.

Chapter III

IMPLEMENTATION PROVISIONS

Article 9.Effect

This Resolution was adopted by the Judicial Council of the Supreme People’s Court on January 11, 2019, and takes effect on March 15, 2019.-

On behalf of the Judicial Council of the Supreme People’s Court
Chief Justice
NGUYEN HOA BINH