Resolution No. 03/2019/NQ-HDTP guiding Penal Code’s Article 324 on money laundering

RESOLUTION

Guiding the application of the Penal Code’s Article 324 on money laundering^[1]

THE JUDICIAL COUNCIL OF THE SUPREME PEOPLE’S COURT

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

For proper and uniform application of Article 324 of Penal Code No. 100/2015/QH13 which had a number of articles amended and supplemented under Law No. 12/2017/QH14;

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

RESOLVES:

Article 1.Scope of regulation

This Resolution guides the application of some provisions of the Penal Code’s Article 324 on money laundering.

Article 2.Terms referred to in the guidance on the application of Article 324 of the Penal Code

1. Money includes Vietnam dong and foreign currencies which may be in cash or account balance.

2. Property includes objects, valuable papers and property rights as defined in the Civil Code, which may exist in physical or non-physical form; be movables or immovables; be tangibles or intangibles; documents or legal instruments evidencing the ownership of or interest in the property.

3. Money or property acquired through the commission of an offense means money or property gained through the commission of a criminal act. The identification of a criminal act shall be based on one of the following documents:

a/ Court judgments or rulings;

b/ Documents and evidences provided by proceeding-conducting bodies (e.g., decision on initiation of a criminal case, investigation conclusions, indictment, etc.);

c/ Other documents and evidences to identify the criminal act (e.g., documents and evidences of the International Criminal Police Organization (Interpol), and Financial Action Task Force (FATF), and documents on criminal justice assistance, etc.).

4. Knowing or having grounds to believe that money or property is acquired through another person’s commission of an offense refers to one of the following cases:

a/ The offender directly knows that money or property is gained through another person’s commission of an offense (for example: the offender is told by the person committing the primary offense that the money or property is acquired through his/her commission of an offense);

b/ Through the mass media, the offender knows that another person commits the primary offense (for example: the primary offender’s criminal act has been publicized by a newspaper, radio or television station);

c/ By common sense, the offender can know that money or property is acquired through another person’s commission of an offense (for example: A knows that her husband is a public employee of a state agency with a salary of VND 8 million/month, without other sources of income but still receives an amount of VND 10 billion from her husband to contribute capital to a business without asking about how he earns the money);

d/ As prescribed by law, the offender must know the origin of money or property acquired through another person’s commission of an offense (for example: A buys a car from B without any document of title at the price of one tenth of the car’s value).

Article 3.Primary crimes

1. A primary crime is one prescribed in the Penal Code and property acquired from its commission becomes a subject of money laundering (for example: murder; intentionally inflicting injury to, or causing harm to the health of, other persons; human trafficking; trafficking in persons aged under 16 years; plundering property; kidnapping in order to appropriate property; stealing property; appropriating property through swindling; abusing trust in order to appropriate property; smuggling; illegally transporting goods and currencies across the border; producing or trading in prohibited goods; stockpiling or transporting prohibited goods; producing or trading in counterfeit goods; tax evasion; making, stockpiling, transporting or circulating counterfeit money; manipulating the securities market; infringing upon copyright and related rights; violating regulations on protection of wildlife; polluting the environment; violating regulations on protection of endangered, precious and rare animals; illegally stockpiling narcotics; illegally transporting narcotics; illegally purchasing or selling narcotics; appropriating narcotics; terrorism; financing terrorism; taking hostages; illegally manufacturing, stockpiling, transporting, using, purchasing or selling, or appropriating, military weapons and military technical equipment; gambling; organizing gambling or running gambling dens; embezzling property; taking bribes; abusing position and powers to appropriate property, etc.). Primary offenses may be committed by Vietnamese citizens, commercial legal persons and stateless persons who permanently reside in Vietnam within or outside the territory of the Socialist Republic of Vietnam.

Offenses that are committed by foreigners and foreign commercial legal persons outside the territory of the Socialist Republic of Vietnam but are defined as crimes under Vietnam’s Penal Code or laws of host countries or territories are also regarded as primary crimes.

2. The examination of penal liability for money laundering may be carried out at the same time with the examination of penal liability for primary crimes and does not exclude the examination of penal liability for primary crimes.

Article 4.Some circumstances for criminalization

1. Participating directly or indirectly in financial and banking transactions prescribed at Point a, Clause 1, Article 324 of the Penal Code means the performance, support for performance or performance or support for performance through another person of, one of the following acts in order to conceal the illegal origin of money or property which is acquired from his/her commission of a crime, or which, he/she has grounds to believe, is acquired from another person’s commission of a crime:

a/ Opening an account and depositing or withdrawing money at a credit institution or foreign bank branch;

b/ Contributing capital or mobilizing capital to an enterprise with money and property in any form;

c/ Withdrawing money in any form and by various instruments such as checks, bills of exchange, and other lawful payment instruments in accordance with law;

d/ Pledging or mortgaging property;

dd/ Lending or financial leasing;

e/ Transferring money or value;

g/ Trading in stocks, bonds and other valuable papers;

h/ Participating in issuance of securities;

i/ Providing guarantee and financial commitments, trading in foreign currencies, monetary market instruments or transferrable securities;

k/ Managing individual and collective investment portfolios;

l/ Managing cash or securities for other organizations and individuals;

m/ Managing or providing life insurance and other investment-related insurance;

n/ Other acts in financial and banking transactions in accordance with law.

2. Participating directly or indirectly in another transaction prescribed at Point a, Clause 1, Article 324 of the Penal Code means the performance, support for performance or performance or support for performance through another person one of the following acts in order to conceal the illegal origin of money or property which is acquired from his/her commission of a crime, or which, he/she has grounds to believe, is acquired from another person’s commission of a crime;

a/ Casino activities (playing or providing casino services);

b/ Participating in (playing or dealing in) prize-winning games;

c/ Purchasing and selling antiques;

d/ Other acts unrelated to finance and banking.

3. Using money or property which is acquired from his/her commission of a crime, or which, he/she knows or has grounds to believe, is acquired from another person’s commission of a crime, for business prescribed at Point b, Clause 1, of Article 324 of the Penal Code means an act of using money or property to perform one, several or all stages of the investment process, from production to sale of products or provision of services in the market for profit-making purpose.

4. Using money or property which is acquired from his/her commission of a crime, or which, he/she knows or has grounds to believe, is acquired from another person’s commission of a crime, for other activities prescribed at Point b, Clause 1, Article 324 of the Penal Code means an act of using money or property to provide services, or build schools or hospitals, or using it for the sponsorship, charity, humanitarian aid purpose or other activities.

5. Obstructing the verification of information about the origin, true nature, location, movement or ownership of money or property which is acquired from his/her commission of a crime, or which, he/she knows or has grounds to believe, is acquired from another person’s commission of a crime prescribed at Point c, Clause 1, Article 324 of the Penal Code means an act of deliberately causing difficulties or obstacles for clarifying the origin, true nature, location, movement or ownership of money or property (for example: providing false documents and information; refusing to provide or insufficiently providing; destroying, falsifying or erasing documents and evidences, etc.)

Article 5.Some circumstances for determining penalty brackets

1.Abusing position and powersprescribed at Point b, Clause 2, Article 324 of the Penal Code means the use by a person with position and powers of his/her position and powers to perform one of the acts as prescribed in Clause 1, Article 324 of the Penal Code and guided in Article 4 of this Resolution.

2.Committing an offense twice or moreprescribed at Point c, Clause 2, Article 324 of the Penal Code means the commission by the offender of money laundering twice or more but for which he/she has not yet been examined for penal liability and the statute of limitations for penal liability examination has not expired.

For example: On May 15, 2018, Nguyen Van A committed money laundering. On February 15, 2019, A committed money laundering again and was arrested. For both times of offence commission, Nguyen Van A has not yet been examined for penal liability for money laundering. In this case, Nguyen Van A shall be examined for penal liability for money laundering under Point c, Clause 2, Article 324 of the Penal Code.

3.In a professional mannerprescribed at Point d, Clause 2, Article 324 of the Penal Code means the commission by the offender of money laundering for 5 times or more (regardless of whether he/she has been examined for penal liability or not, provided the statute of limitations for penal liability examination has not yet expired or he/she has not had his/her criminal records expunged), and his/her consideration of unlawful earnings from money laundering as his/her income.

4.Employing a sophisticated or treacherous trickprescribed at Point dd, Clause 2, Article 324 of the Penal Code means the use by the offender of high technologies and his/her connection with persons with position and powers in state agencies or employment of other deceitful tricks and artifices to destroy evidences, conceal criminal acts and cause difficulties to the detection, investigation and settlement of the crime.

5.Causing adverse impacts on the safety of the national financial and monetary systemprescribed at Point c, Clause 3, Article 324 of the Penal Code means a case where a criminal act affects the stability or threatens to cause instability of the national financial and monetary system (for example: loss of public trust, loss of liquidity, financial and monetary system imbalance, etc.).

Article 6.Effect

This Resolution was adopted by the Judicial Council of the Supreme People’s Court on May 23, 2019, and takes effect on July 7, 2019.-

On the behalf of the Judicial Council of the Supreme People’s Court
Procurator General
NGUYEN HOA BINH