THE COUNCIL OF JUDGES OF THE SUPREME PEOPLE'S COURT | SOCIALIST REPUBLIC OF VIETNAM --------------- |
No: 03/2019/NQ-HDTP | Hanoi, May 24 2019 |
RESOLUTION
ON PROVIDING GUIDELINES FOR ARTICLE 324 OF CRIMINAL CODE ON MONEY LAUNDERING
THE COUNCIL OF JUDGES OF THE SUPREME PEOPLE'S COURT
Pursuant to Law on the organization of People's court dated November 24 2014;
For the purposes of consistent and proper application of the provisions of Article 324 of the Criminal Code No. 100/2015 / QH13 amended and supplemented a number of articles under Law No. 12/2017/ QH14
At the request of the Director of the People’s Supreme Procuracy and the Minister of Justice
HEREBY RESOLVES:
Article 1. Scope
This Resolution provides guidance on application of certain regulations of Article 324 of Criminal Code on money laundering
Article 2. Terms used on guidelines for Article 324 of Criminal Code
1. "money” consists of Vietnam Dong, any foreign currency; cash or money in account.
2.”property” includes objects, valuable papers, property rights defined the Civil Code which exist in a physical or nonphysical form; estate or real estate; tangible or invisible; legal documents or instruments proving ownership or interest in the property.
3. Money or property “obtained by crime” or “obtained through commission of a crime” are money and property through the commission of a crime.
The determination of a crime is based on one of the following documents:
a) Judgment, decisions of Court;
b) Documents and evidence provided by the proceeding authority (for example: prosecutions decisions, investigation conclusions, indictments ...);
c) Other documents and evidence identifying offenses (e.g. documents, evidence from the International Criminal Police Organization (Interpol), Financial Action Task Force (FATF), criminal justice assistant documents etc.).
4. In the following cases, the offender isconsidered to “have knowledge of another person’s commission of a crime”:
a) The offender directly knows the money or property is obtained through a commission of a crime by another person (for example: the offender is told by the person who committed the original crime that the money or property is obtained through commission of the crime by the latter);
b) The offender knows about the original crime committed by another person through media broadcasts (for example: the original crime was reported and broadcasted by newspapers, televisions);
c) By common sense, the offender knows that the money or property is obtained through commission of a crime by another person (e.g.: Mrs. A knows that her husband is an employee of a state agency with a salary of VND 8 million / month and without any other sources of income, but she still receives the husband's money of 10 billion dong to contribute capital to the enterprise without asking about the source of money);
d) As specified in law, the offender must know that the
money or property is obtained through commission of a crime by another person (e.g. Mr.A buys an car without paper from Mr. for a price of one tenth of its value.)
Article 3. Original crimes
1. Original crimes are the crimes prescribed in the Criminal Code and the property acquired from such crimes is subject to money laundering charges (e.g. murder; intentionally inflicting injury or harm to the health of other persons; human trafficking, trafficking of a person under 16, robbing property, kidnapping for ransom, property theft, obtaining property by fraud, abusing trust in appropriating property; smuggling, illegally transporting goods and money across the border, producing and trading banned goods, storing and transporting banned goods, production and trading counterfeit goods; tax evasion, making, storing, transporting and circulating counterfeit money, manipulating the stock market, copyright infringement and related issues, violating regulations on protection of wild animals, causing environmental pollution, violating regulations on protection of endangered, precious and rare animals, illegal storage of narcotics drugs, illegally transporting narcotics, illegally buying and selling narcotics; appropriating narcotics drugs; terrorism; sponsoring terrorism; kidnapping hostages; fabricating, storing, transporting, using, illegally trading or appropriating military weapons and military technical devices; gambling; organizing gambling or running gambling den; property embezzlement; bribery; abusing positions, powers to appropriate property ...). Original crimes can be committed by Vietnamese citizens, Vietnamese commercial entities, stateless people who are permanently residing in Vietnam within or outside the territory of the Socialist Republic of Vietnam.
Crimes committed outside the territory of the Socialist Republic of Vietnam by foreign citizens, foreign legal persons are also considered original crimes if they are prescribed in the Criminal Code of Vietnam or law of the criminal’s home country/territory.
2. The prosecution of criminal liability for money laundering can be carried out simultaneously with the criminal prosecution of the original crimes and does not exclude the criminal prosecution of the original crimes.
Article 4. Crime determination circumstances
1. “The act of directly or indirectly participating in financial and banking transactions” prescribed at Point a, Clause 1, Article 324 of the Criminal Code is a person’s
commission, assistance in commission or through another person commits or assists in commission of one of the following acts to conceal the illegal origin of money and property committed by the offender, or having knowledge that it is committed by another person:
Opening accounts and depositing money, withdrawing money at foreign credit institutions and bank branches;
b) Contributing capital, mobilizing capital into enterprises with money or property in any form;
c) Withdrawing money in any form and with various instruments such as checks, bills of exchange, and means of legal payment in accordance with law.
d) Pledging or mortgage of assets;
dd) Lending, financial leasing;
e) Money transfer or value transfer;
g) Trading stocks, bonds and other valuable papers;
h) Participating in issuing stocks;
i) Providing financial guarantee and commitment, foreign currency trading, transferable money market instruments and securities;
k) Managing individual and collective portfolios;
l) Managing cash or securities for other organizations or individuals;
m) Managing or providing life insurance and other investment-related insurance;
n) Other activities in financial and banking transactions as prescribed by law.
2."The act of directly or indirectly participating in other transactions” prescribed at Point a, Clause 1, Article 324 of the Criminal Code is a person’s commission, assistance in commission or through other persons another person commit or assist in commission of one of the following acts to conceal the illegal origin of money or property obtained through his/her commission of a crime or obtained through another person's commission of a crime to his/her knowledge:
a) Gambling in casino; running casino business;
b) Participating in prize-winning games (playing, doing business);
c) Buying and selling antiques;
d) Other acts that have no relevance to finance and banking.
3. “A person’s use of money or property obtained through his/her commission of a crime or obtained through another person's commission of a crime to his/her knowledge for doing business” prescribed at point b clause 1 Article 324 of Criminal Code is the use of such money and/or property to conduct one, or several, or all stages of the investment process, from the manufacturing to the sale of products; or the provision of services in the market for profitable purposes.
4. “A person’s use of money or property obtained through his/her commission of a crime or obtained through another person's commission of a crime to his/her knowledge for other activities”prescribed at point b clause 1 Article 324 of Criminal Code is the use of such money and/or property to provide services, building schools, hospitals or to provide sponsorship, charitable donations, humanity aids or other activities.
5. “Obstruction of the verification of information about the source, true nature, location, movement or the ownership of the money or property which is obtained from the offender's crime or from having knowledge of other people’s crimes” prescribed at point c clause 1 Article 324 of Criminal Code is the act of intentionally causing difficulties or obstacles to clarify the origin, true nature, location and movement or ownership of money or property (for example: providing false documents and information; not providing or providing incomplete information; discarding, destroying, falsifying or erasing documents and evidence...).
Article 5. Penalty determination circumstances
1. "the offender abuses positions and powers” prescribed at Point b, Clause 2, Article 324 of the Criminal Code are cases where a person abuses his/her position or power to commit one of the acts prescribed in Clause 1 Article 324 of the Criminal Code and the guidance in Article 4 of this Resolution.
2. ”the offence has been committedmore than once” specified at Point c, Clause 2, Article 324 of the Criminal Code is the case where the offender commits the money laundering two or more times but has not yet been prosecuted and the statute of limitation for criminal prosecution has not expired.
For example, on May 15 2018, Nguyen Van A committed the money laundering offense. In February 15 2019, A again committed the money laundering offense and is captured. With these two commissions, Nguyen Van A has not yet been prosecuted. In this case, Nguyen Van A will be prosecuted for money laundering in accordance with Point c, Clause 2, Article 324 of the Criminal Code.
3.”The offence is committed ina professional manner” specified at Point c, Clause 2, Article 324 of the Criminal Code is the case when the offender commits the money laundering offense five or more times (whether he/she has been prosecuted, and the statute of limitations for criminal prosecution has not yet expired or the previous conviction is still unspent) and the offender uses the illicit profits from the money laundering as an income source.
4. ”Deceitful methods” specified at point dd, Clause 2, Article 324 of the Criminal Code is the case when the offender uses high technologies and/or in association with person with authority and power in the Government agencies or fraudulent methods to destroy evidence, concealing the offence in order to cause difficulties in detecting, investigating and handling crimes.
5. “Negative impact on security of the national currency or finance system” specified at point c clause 3 article 324 of the Criminal Code is the case of criminal acts affecting the stability or causing the risk of instability in finance system or national currency. (e.g. losing public trust, losing the liquidity, losing the balance of finance and currency system …).
Article 6. Effect
This Resolution is passed by the Council of Judges of the Supreme People’s Court on May 23 2019 and comes into force from July 7 2019.
| ON BEHALF OF THE COUNCIL OF JUDGES |