Legal representative of a legal entity in criminal proceedings in Vietnam

Rights and obligations of legal representatives in Vietnam

Article 431 of the Criminal Procedure Code 2015 specifies the scope of application of criminal procedural law for legal entities: "Procedural requirements for legal entities being accused, informed of crimes, filing complaints, being investigated, prosecuted, tried, and enforced shall be conducted in accordance with the provisions of this Chapter, as well as other provisions of this Code that are not contrary to the provisions of this Chapter."

As the subject of criminal procedural law, legal entities have the right and obligation to fully participate in the stages of criminal proceedings as stipulated in Article 434 of the Criminal Procedure Code: "All procedural activities of legal entities held accountable for criminal liability shall be conducted through legal representatives of the legal entities. Legal entities must appoint and ensure the full participation of their legal representatives in the initiation, investigation, prosecution, trial, and enforcement activities as required by competent authorities.

In cases where the legal representative of a legal entity is under investigation, prosecution, trial, or unable to participate in the proceedings, the legal entity must appoint another person as its legal representative to participate in the proceedings. In the event of a change in the legal representative, the legal entity must promptly notify the relevant authority conducting the proceedings.

At the time of initiation, investigation, prosecution, or trial, if the legal entity does not have a legal representative or has multiple legal representatives, the competent authority conducting the proceedings shall designate one legal representative for the legal entity to participate in the proceedings."

The legal representatives of legal entities participating in criminal proceedings are governed by specific rights and obligations as stipulated in Article 435 of the Criminal Procedure Code 2015. In other words, legal entities held accountable for criminal liability also have the same rights and obligations in criminal proceedings as the accused individuals. These rights and obligations are carried out through their legal representatives.

Clause 2 of Article 13 of the Enterprise Law 2014 stipulates: "A limited liability company and a joint-stock company may have one or more legal representatives. The company's charter specifies the specific number, management titles, and rights and obligations of the legal representative(s) of the enterprise."

Therefore, commercial legal entities may have multiple legal representatives. The Criminal Procedure Code 2015 has stipulated that in cases where a legal entity has multiple legal representatives, "the competent authority conducting the proceedings shall designate one legal representative for the legal entity to participate in the proceedings" (Clause 1 of Article 434 of the Criminal Procedure Code 2015). This provision is consistent with the Enterprise Law 2014.

To prevent corporate crime from going unpunished, Clause 2 of Article 75 of the Penal Code 2015 stipulates: The criminal liability of a commercial legal entity does not exclude the criminal liability of individuals. Therefore, in cases where the commission of a crime by a legal entity is proven to involve specific individuals, these individuals must also bear criminal liability for the crimes they have committed.

Determination of the charges that commercial legal entities commit in Vietnam

Articles 432 and 433 of the Criminal Procedure Code 2015 regulate the initiation of criminal cases and the initiation of proceedings against legal entities, based on the provisions regarding the initiation of criminal cases and the initiation of proceedings against individuals who commit specific crimes. Articles 436 to 439 of the Criminal Procedure Code 2015 provide for some coercive measures to be applied to legal entities that commit crimes in order to ensure the normal conduct of investigation, prosecution, trial, and enforcement, such as: seizing assets related to the criminal acts of the legal entity; sealing the accounts of the legal entity related to its criminal acts; temporarily suspending the activities of the legal entity related to its criminal acts; compelling the legal entity to deposit a sum of money to ensure the enforcement of the judgment" (Article 436 of the Criminal Procedure Code 2015).

One of the issues considered when regulating legal entities as subjects of criminal procedural law is the proof of important elements to determine the charges against legal entities, including the elements of the criminal act, fault, consequences, and causal relationship between the act and the consequences, just as with individual perpetrators.

Article 441 of the Criminal Procedure Code 2015 states: "1. The existence of criminal acts, time, location and other particulars of criminal acts that fall into the juridical person's criminal liabilities as per the Penal Code. Errors committed by the juridical person or personnel of the juridical person. Nature and degree of damage caused by the juridical person’s criminal acts.Factors aggravating and mitigating criminal liabilities and other facts related to exemption of punishments. Reasons and conditions that lead to crimes."

Article 444 of the Criminal Procedure Code 2015 regulates the jurisdiction of the Court, according to which the Court has jurisdiction to adjudicate legal entities, as the Court stipulated is the Court where the legal entity commits the crime. In cases where the crime is committed in multiple different places, the Court that has jurisdiction is the Court where the legal entity has its headquarters or where its branch commits the crime.

According to experts, the enforcement of criminal liability against commercial legal entities is a new issue. Therefore, it is necessary to carefully determine the charges that commercial legal entities commit, with appropriate steps based on the evaluation of the nature, degree of danger, and prevalence of violations in practice, in order to regulate them in the Criminal Law to handle criminal acts. The criminal liability of legal entities does not exclude individual criminal liability. Therefore, in the process of resolving criminal cases, it is necessary to clarify the circumstances and criminal acts of individuals or legal entities (if any). In the event that the legal entity makes a decision or instructs individuals to commit criminal acts, both the individual and the legal entity should be held criminally liable for the crimes they have committed. Thus, the handling of crimes should be comprehensive and thorough, avoiding the escape of crimes and the individuals and legal entities who commit them.

Source: "Báo Công lý" (Justice Newspaper)

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