Features of bribery offences

The primary law penalising corruption activities in the public and private sectors is the
New Penal Code, which covers both active and passive bribery.

A bribe is construed as: (1) money, assets or other material benefit in any form, which
has a value of VND  2 million (approximately US$90) or more (or less than VND 2
million if the act of bribery was committed repeatedly) or (2) intangible benefits either
provided, offered or promised by any person to a person holding an official position or
power with the intent of taking advantage of his or her official position or power in order
to perform or refrain from performing certain acts for the benefit of, or as requested by,
the person who offers the bribe.

The New Penal Code covers bribery of foreign public officials, so a Vietnamese
individual would be subject to criminal liability in accordance with Vietnamese law if
such individual gives bribes to a foreign public official.

A Vietnamese citizen who pays a bribe to a Vietnamese public official when abroad may
be subject to criminal or administrative liability under Vietnamese laws.

A foreign citizen paying a bribe to a Vietnamese public official outside of Vietnam’s

territory may also be subject to criminal liability under the New Penal Code.

Compliance defence and mitigation

Persons who are coerced to offer bribes but report them before being detected are deemed
to be innocent and will have the entire property offered as bribes returned. Non-coerced
bribe givers or bribery intermediaries who report the bribes before being detected may
also be exempt from penal liability.

The laws of Vietnam do not expressly provide that having adequate compliance
procedures in the context of anticorruption is an express defence or a mitigating factor. If
the anti-corruption programme or compliance procedures help to prevent or reduce the
violation then these procedures can be taken into account by the court as a mitigating
circumstance.

Facilitation payments
There is no express recognition of, or exemption for, facilitating payments if the person
offering or making the facilitating payment had the intention of requiring the public
official(s) to perform or refrain from performing certain acts. According to the scope of
bribery set out in the New Penal Code, a person receiving a facilitation payment may still
be subject to criminal liability even if the ensuing action is in accordance with the law.
Gifts and entertainment
Generally speaking, the giving or receiving of gifts and hospitality will be deemed a bribe
under Vietnamese law if it satisfies all elements of a bribe as described in paragraph 2 of
Features of bribery offences Section above.

Decision 64 provides regulations on the receiving and giving of gifts by organisations,

units, and ‘staff, public officials and officials’. Under this Decision, a gift includes,
among other things, cash, ‘valuable papers’ (such as shares, bonds, certificate of deposits
or promissory notes), goods, properties, tourism benefits, medical services, education and
training. Decision 64 also prohibits ‘staff, public officials and officials’ from directly or
indirectly receiving gifts when the public official has responsibilities and/or power over
the gift giver’s activity and the gift giving is not justified by a clear and legitimate
purpose.

Subject to prohibited cases mentioned above, Decision 64 allows a public official to

receive gifts if: (a) he or she is sick or on certain occasions such as a wedding, funeral,
traditional ceremonies or Lunar New Year holiday; and (b) if the value of such gift is less
than VND 500,000 (approximately US$22). Government officials who receive any gift in
excess of VND500,000 must report this to his or her direct manager.

Decision 64 also provides that staff, public officials and officials may receive gifts that
do not relate to their public duties without having to report them to the relevant authority.
However, they must sign for the receipt of the gifts. It is not clear what document must be
signed by the person receiving the gift.

Corporate liability for the acts of

intermediaries
Generally, companies are not liable for the acts of their intermediaries, such as their
subsidiaries because under Vietnamese laws: (a) only individuals can be subject to
criminal liability with respect to bribery offences (companies can only be
administratively sanctioned); and (b) a subsidiary is usually regarded as a separate legal
person from its parent company and is therefore responsible for its own conduct only.

Liability of individual directors and officers

Subject to the imposition of criminal liabilities in the case of directors and officers who
are accomplices or their failure to denounce crime, Vietnam laws do not expressly
stipulate any particular responsibility of individual directors and officers for consent to,
or connivance in, a corrupt act in their company. Nevertheless, a head and deputy head of
an enterprise may be subject to discipline or criminal liability upon the occurrence of
corrupt acts in their enterprise.
Penalties
According to the New Penal Code, a bribe receiver may be liable for criminal penalties
of: (a) imprisonment, including life imprisonment, or capital punishment; (b) a fine of up
to VND100 million; (c) confiscation of all or part of the properties; and (d) prohibition
from holding a public position for up to five years.

A bribe giver may be liable for criminal penalties of: (a) up to 20 years’ or life
imprisonment; and (b) a monetary fine of up to VND50 million.

A bribe intermediary may be liable for criminal penalties of: (a) up to 15 years’
imprisonment; and (b) a monetary fine of up to VND200 million