Abstract
The paper analyses legal provisions and results of asset recovery in Vietnam in the recent years. By using official Government figures and comparing them with requirements under United Nations Convention against Corruption (UNCAC), this paper demonstrates the shortcomings of the legal processes and procedures for recovery of stolen assets in Vietnam. The problems faced by Vietnam in this area mainly resulted from the fact that although the country has numerous substantive and procedural laws on anti-corruption, an appropriate strategy for anti-corruption has been wrongly identified by Vietnamese law makers and practitioners. Accordingly, not much thought has been given to asset recovery, which has been globally recognized as the most effective way to deter corruption. Besides, law enforcement in Vietnam is also another big concern. Therefore, there is no significant progress in asset recovery in Vietnam in the short-term, though the country is revising the law against corruption in a comprehensive manner.
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National Strategy for Prevention and Combating Corruption towards 2020 (2009).
Politburo of the Communist Party of Vietnam, Conclusion No.10 (Dec. 26, 2017).
UNODC, Technical Guide to the United Nations Convention Against Corruption (2009).
Bryan A.Garner, Black’s Law Dictionary, (9th ed.).
James A. Brumby, Stolen Asset Recovery: Management of Returned Assets: Policy Consideration, Working Paper No. 55007, World Bank (2009).
It is to be remembered that the principle instrument for asset recovery in common law has traditionally been the doctrine of “constructive trust”. This is an outgrowth of the doctrine of trust which developed in Chancery Division. Thus, it is traditionally a civil remedy and requires a much evolved civil and commercial court system to administer. Constructive trust predates the international instruments.
Arnar Jensson, Crime Should Not Pay: Iceland and the International Developments of Criminal Assets Recovery, (Sept., 2011), (Unpublished M.A. Dissertation, University of Iceland).
Ronald Clark, The Reasoning Criminal: Rational Choice Perspectives on Offending (1986).
Larissa Gray, et al., Few and Far: Hard Facts on Asset Recovery 5 (eds., 2012).
For instance, in the U.S., a part of the budget for the operation of the law enforcement agencies is from the recovered assets. In U.K., a certain percentage of recovered proceeds of corruption shall be served for training practitioners in asset recovery.
Brumby, supra note 5, at 10.
Kevin M. Stephenson, Barriers to Asset Recovery: An analysis of the key barriers and recommendations for action (2011).
Legislative Decree No. 68/SL (Nov. 30, 1945) (Vietnam) (Against Crimes of Violating the Rules of Requisition and Expropriation); Legislative Decree No.223/SL (Nov. 17, 1946) (Vietnam) (Against Crimes of Bribery and Embezzlement); Legislative Decree No.200/SL (Aug. 7, 1948) (Vietnam) (Punishing Deserting One’s Posts); Decree No. 267/SL (Jun. 15, 1956) (Vietnam) (Punishing Acts of Sabotage, Causing Damage to Property of the State, Cooperatives and the People, Which Obstruct the Implementation of Policies and Plans on Economic and Cultural Development); Ordinance (Oct. 21, 1970) (Vietnam) (Punishment of Crimes Of Infringing Upon Socialist Property); Ordinance (Oct. 21, 1970) (Vietnam) (Punishment of Personal Property of the Citizens).
Hoang v. Tuy, Tôi nói, cơ chế sản sinh ra tham nhũng, Legi’ve Mag. (2005) [This mechanism gives rise to corruption] (Viet.).
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Nguyen v. Ngoc Chi, Đặc điểm tham nhũng ở Việt Nam, (2006) [Characteristics of corruption in Vietnam] (Viet.).
Pham v. Van Tinh, Tổng quan tình hình tội phạm ở Việt Nam qua số liệu thống kê trong giai đoạn 1986-2008, State & Law Mag. (2011) [Overview of crimes in Vietnam from statistics in the period 1986-2008] (Viet.).
Which includes: receiving bribes, offering bribes, acting as intermediaries for bribery, taking advantage of one’s influence over persons with positions and powers to seek personal benefit (Article 226-228a).
Nguyen Hai Phong, Report on ‘Situation and Solutions to Enhance the Capacity to Detect, Identify and Confiscate Assets Through the Work of Prosecution and Adjudication of Corruption Cases’, C. Internal Aff. Comm. (2014).
Transparency International ranks Vietnam at rank 113 out of 176 countries in its latest Corruption Perception Index (2017). Thus, for the first time in four years, Vietnam scores slightly higher (a-2-point increase from 31% during 2012-2015).
Nguyên Hà, General Secretary: Very impatient with corruption, Vn. Economy (Jun. 29, 2012), http://vneconomy.vn/thoi-su/tong-bi-thu-het-suc-sot-ruot-truoc-tham-nhung-hu-hong-20120629030348661.htm (Viet.)
[Embezzlement, Receiving bribes, abusing position and/or powers to appropriate property; Abusing positions and/or powers while performing official duties; Abusing positions and/or powers to influence other persons for personal profits; Forgery in the course of employment].
According to the Directive 50-CT/TW dated 7 December 2015 of the Political Bureau on strengthening the party leadership on detecting and handling corruption cases.
Report on 10 years of Implementing Anti-Corruption Law (2005-2015) [RIAL], Government Inspectorate (2016).
Tran v. Huu Dung, Tham nhũng và tăng trưởng kinh tế, Econ. Mag. (1999) [Corruption and Economic Growth] (Viet.).
Id., at 2.
Vietnam does not have an independent anti-corruption agency. Instead, there are three specialized-anti-corruption agencies that include the Ministry of Public Security, Government Inspectorate and Supreme Procuracy. All these agencies are responsible for monitoring and supervising anti-corruption work based on their assigned state functions but the coordination among them remains elusive.
RIAL, supra note 24, at 25.
Report on Results of the Survey on the Implementation of Preventive Measures and Asset Recovery as Required by UNCAC, Government Inspectorate (2015).
Hanh v. Thien, Vì sao chống tham nhũng quá khó?, Thanh niên Online, (2015) [Why it’s hard to fight against corruption?] (Viet.).
Xử lý trách nhiệm nếu không tự phát hiện tham nhũng, Tuổi trẻ Online [Liability for failure to self detect corruption] (Viet.).
Nguyen Quoc Hiep, Cơ chế phát hiện tham nhũng ở Việt Nam hiện nay, GIRI [Corruption Detection in Vietnam today] (Viet.).
Report on Detecting and Handling Corruption Cases, National Assembly Judicial Committee (2016).
In Vietnam, whistleblowing or denunciations is mainly handled in accordance with the Law on Denunciation, Criminal Proceedings Code and Anti-Corruption Law.
Nguyen Quoc Hiep, supra note 32, at 10.
Id., at 25.
Vietnamese criminal law has four constituent elements: object, subject, physical elements and mental elements. The analyses of any crime traverses each of these elelments and all must be present before a crime can be made out.
Tran Cong Phan, Công tác THQCT&KS các hoạt động tư pháp của VKSND trong tình hình mới và một số vấn đề về tăng cường sự lãnh đạocuar Đảng đối với công tác đấu tranh phòng, chống tội phạm (“Exersing right to prosecution and supervising judicial activities in the new period and a number of issues related to strengthening the party leadership in fight against crimes”) (Viet.).
Specifically, it is provided that: “Law enforcement agencies, when detecting signs of violation of party members, are obliged to make written reports to the party organization and to party committees directly managing such party members. Only after the approval of the above mentioned actors, the law enforcement agencies are allowed to take necessary procedure steps”.
Hoang v. Minh Son, Một số vấn đề về THTS trong các vụ án tham nhũng qua công tác xét xử của toà án, (2015) [A number of issues on asset recovery in corruption cases during trial process] (Viet.).
Report No.55/TANDTC-BTTr dated 27 October 2015 on the work of the People’s Courts from 2009 to 2014: the court heard 2,041 cases with 5,112 defendants charged with corruption. The court has 1,405 cases with 3,129 defendants. Of the 3,129 defendants who entered the first instance trial, in addition to the principle punishment, the court imposed additional penalties.
Miễn tử hình cho tội phạm tham nhũng nộp 3/4 tiền chiếm đoạt., Tienphong Online (2015) [Excemption from death penalty for those who lodge at least ¾ appropriated propert] (Viet.).
As it is not included in cases when civil judgement enforcement agencies have to proactively enforce the judgements at its own will: 1. To impose fines, collect arrears or illegal proceeds of crime, court fees; 2. To return money and property to the involved parties; 3. To confiscate to the State fund, to confiscate the destruction of material evidences and/or properties; 4. To withdraw land use rights and other properties which are subject to confiscation; 5. Decisions on the application of provisional measures.
Pham Thanh Binh, former chairman of Vinashin was sentenced to execute more than VND 600 billion but the only property available for judgment enforcement is a house in Trung Hoa, Nhan Chinh which only cost VND 5 billion, of which his wife owns half.
In the case of Huynh Thi Huyen Nhu, in the first instance, the amount of money sentenced by the People’s Court of HCM City for confiscation to State fund is VND 976 billion. While the appellate claim was more than VND 11,000 billion (11-12 times bigger). Such large differences prevented the enforcers to enforce the judgement.
Nguyen v. Doan Phuong, A number of concerns in solving civil matters in criminal cases., Legi.’ve R. Mag., (2017).
According to the judgement of the Court of Appeal - SPC in Hanoi dated August 30, 2012, the total amount for confiscation in the case of Vinashin reached VND 1,44 billion. In particular, as for Vinashin’s 6 companies, the total amount for confiscation is up to VND 1,142 billion. After the verdict came into force, the companies filed a petition for enforcement of over VND 1,049 billion. However, by the end of July 2015, the enforcement agencies had only recovered more than VND 2 billion and was forced to return the request for enforcement of the judgement on VND 1,022 billion. According to the General Department of Civil Judgement Enforcement, reason for this situation is that due to the procedure, the competent authorities had not distrained the property of litigants to ensure the enforcement of the judgements, so in addition to the assets verified and deferred, the relevant agencies had not discovered any other property of the litigant.
For instance, the provisions on the time of transferring the ownership of assets which includes housings, transferring the ownership of land use rights in Civil Code, Land Law and Housing Law are inconsistent. According to the Land Law, the right to use land is transferred to the transferee from the time of registration at the land use rights registration office, while the Housing Act provides for the right to own a house transferred to the purchaser from the time of notarization of the house purchase contract.
These are the core measures for corruption fighting provided by the Vietnamese anti-corruption strategy prior to the Anti-Corruption Law in 2005.
Corruption fighting and corruption prevention are implicitly understood to be two separate targets in the fight against corruption.
These are the core measures for corruption prevention provided by the Vietnamese anti-corruption strategy prior to the Anti-Corruption Law in 2005. Corruption fighting, and corruption prevention are implicitly understood two separate targets in the fight against corruption.
See, Arvinder Sanbei, Technical Paper: European Court on Human Rights Jurispreudence and Civil Recovery of Illicitly Obtained Assets (confiscation in rem), 5, European Council (2012). Non-conviction based confiscation (NCB) has been enforced in 24 countries around the world and most of which are developed countries with high level of governance and low level of corruption. Under UNCAC, although NCB is an optional requirement, its recognition in a multilateral international treaty with 182 state parties indicates that, basically, countries recognize the superiority of this measure. Concerns about violating human rights have been brought to the European Court of Human Rights (EctHR). The high consensus reached by the EctHR and many national constitutional courts then has confirmed that asset recovery (including conviction based or non-conviction based) is fully “compatible” with human rights regulations. However, the courts also emphasized that the process of reflecting NCB into the national legal system is “a national initiative”. In that sense, countries, depending on their conditions, find their own way to apply NCB accordingly.
Acknowledgements
This paper is a part of the Research Project on “Justice and the Right to Access to Justice in Vietnam” (Code Number 505.01-2017.01 in 2017) funded by the National Foundation for Science and Technology of Vietnam (NAFOSTED). The authors sincerely thank NAFOSTED for assistance.
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Huyen, D.T., Giao, V.C. Asset recovery in the fight against corruption in Vietnam: problems and perspective. Jindal Global Law Review 9, 57–74 (2018). https://doi.org/10.1007/s41020-018-0057-3
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DOI: https://doi.org/10.1007/s41020-018-0057-3