Joint Circular No. 01/2013/TTLT-TANDTC-VKSNDTC-BCA-BQP-BTP guides the prosecution of criminal responsibility for acts of trafficking in persons and buying, swapping, or appropriating children.

JOINT CIRCULAR
Guidelines on the prosecution of criminal responsibility for individuals engaging in acts of

trafficking in persons; buying, swapping, or stealing children

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To ensure the correct and consistent application of the provisions of Article 119 and Article 120 of the Criminal Code of 1999, amended and supplemented by the Law Amending and Supplementing Certain Provisions of the Criminal Code 2009 (hereinafter referred to as the Criminal Code) in the prosecution of criminal responsibility for individuals engaging in acts of trafficking in persons; buying, swapping, or stealing children, the Supreme People's Court, the Supreme People's Procuracy, the Ministry of Public Security, the Ministry of National Defense, and the Ministry of Justice issue these joint circulars guiding the prosecution of criminal responsibility for individuals engaging in acts of trafficking in persons; buying, swapping, or stealing children.

PART I
PROSECUTION OF CRIMINAL RESPONSIBILITY

FOR INDIVIDUALS ENGAGING IN ACTS OF TRAFFICKING IN PERSONS

AS PROVIDED FOR IN ARTICLE 119 OF THE CRIMINAL CODE

Article 1. Determination of the act of trafficking in persons

"Trafficking in persons" is the act of using money, property, or other material benefits to exchange a person (aged 16 years or older) as a commodity; specifically, one of the following acts:

1. Selling a person to another individual, regardless of the purpose of the buyer.

2. Buying a person to sell to another individual, regardless of who the subsequent buyer is and what their purpose may be.

3. Using a person as property for exchange or payment.

4. Buying a person for exploitation, forced labor, or other illegal purposes.

5. The organizer, instigator, or accomplice of any of the acts of trafficking in persons specified in Clauses 1, 2, 3, and 4 of this Article shall be prosecuted for the crime of trafficking in persons.

Article 2. On certain circumstances determining the sentencing framework

1. "For the purpose of prostitution" as provided for in Point a Clause 2 of Article 119 of the Criminal Code refers to the act of trafficking in persons for the purpose of facilitating prostitution activities (such as selling people to brothels or organizing them to engage in prostitution...).

2. "Professional nature" as provided for in Point c Clause 2 of Article 119 of the Criminal Code refers to the situation where the offender has engaged in trafficking in persons five times or more (regardless of whether they have been prosecuted for criminal responsibility if the statute of limitations has not expired or if they have not had their criminal record expunged) and the offender makes a living from trafficking in persons and relies on the proceeds of trafficking in persons as their main source of income.

In cases where the offense has occurred five times or more, including instances where the offense has already been sentenced but not yet expunged, depending on specific circumstances, the offender may be subject to aggravating circumstances such as "repeated offenses," "offenses against multiple victims," "recidivism" (or, "dangerous recidivism" ) and "professional nature.") "To obtain parts of the victim's body".

3. as provided for in Point d Clause 2 of Article 119 of the Criminal Code refers to the act of trafficking in persons with the intent to obtain parts of the body formed from various types of tissue to perform certain physiological functions of that person. "To send abroad"

4. as provided for in Point đ Clause 2 of Article 119 of the Criminal Code refers to the act of trafficking in persons to send the victim out of the territory of Vietnam, including situations where the victim has not yet been sent abroad but there is evidence indicating that the offender intends to send the victim abroad. "Against multiple victims"

5. as provided for in Point e Clause 2 of Article 119 of the Criminal Code refers to the act of trafficking in two or more individuals in a single offense. "Repeated offenses"

6. as provided for in Point g Clause 2 of Article 119 of the Criminal Code refers to the act of trafficking in persons two or more times, regardless of whether the acts of trafficking were committed against a single individual or multiple individuals, and in each instance of trafficking, the offender has not been prosecuted for criminal responsibility and the statute of limitations has not expired. as provided for in point g, Clause 2, Article 119 of the Criminal Code, refers to cases of trafficking in persons two or more times, regardless of whether such acts are committed against one person or multiple persons, and in which the perpetrator has not been prosecuted for criminal responsibility in any of those instances and the statute of limitations for prosecution has not expired.

Article 3. Prosecution for criminal responsibility in certain specific cases

1. Case of using intermediary methods for illegal international marriage

A person who uses intermediary methods for illegal international marriage must be prosecuted for criminal responsibility for the crime of trafficking in persons under Article 119 of the Penal Code if they fall into one of the following situations:

a) The intermediary uses coercion, threats, or deception to force others to marry foreigners and then delivers that person to the foreigner to receive money, property, or other material benefits;

b) Knowing that the purpose of the foreigner is to exploit labor or sexual exploitation or sell the selected person abroad through matchmaking activities or marriage as a means or method, but still proceeds with intermediation to receive money or other material benefits from the foreigner.

2. Case of using methods to illegally send people to work abroad

a) In the case where the intermediary or sender knows that the worker (aged 16 years or older) will be forced to work, exploited illegally (such as being forced to work in hazardous environments without ensuring labor safety, seriously affecting health; working without pay; being forced to engage in prostitution) abroad, but still deceives or coerces the worker and hands them over to the foreign side to obtain money or other material benefits, the intermediary or sender will be prosecuted for criminal responsibility for the crime of trafficking in persons under Article 119 of the Penal Code;

b) In the case where the intermediary uses intermediary methods to send workers abroad to transfer workers to the foreign side to sell workers to others, the intermediary will be prosecuted for criminal responsibility for the crime of trafficking in persons under Article 119 of the Penal Code;

c) In the case where the intermediary uses intermediary methods to send people to work abroad to defraud, abuse trust to appropriate assets (after receiving money from the worker, they appropriate it and flee, not fulfilling the obligation to send the worker to work abroad), depending on the specific circumstances, they may be prosecuted for criminal responsibility for the crime of fraudulently appropriating assets under Article 139 of the Penal Code or abusing trust to appropriate assets under Article 140 of the Penal Code.

Chapter II
PROSECUTION OF CRIMINAL RESPONSIBILITY FOR PERSONS WHO HAVE COMMITTED THE ACTS OF BUYING AND SELLING, SWAPPING, OR APPROPRIATING CHILDREN

PURSUANT TO ARTICLE 120 OF THE PENAL CODE

PURSUANT TO ARTICLE 120 OF THE CRIMINAL CODE

Article 4. Determining acts of buying and selling, swapping, or appropriating children

1. "Buying and selling children" is the act of exchanging children (persons under 16 years old) as goods using money, property, or other material benefits; specifically, one of the following acts:

a) Selling children to others, regardless of the buyer's purpose;

b) Buying children to resell to others, regardless of who they are sold to or the purpose of the subsequent buyer;

c) Using children as a means of exchange or payment;

d) Buying children to exploit, force labor, or for other unlawful purposes.

2. "Swapping children" is the act of replacing one child with another outside the will of the parents, foster parents, or lawful guardians of one or both children.

3. "Appropriating children" is the act of using violence, threatening to use violence, stealing, deceiving, taking advantage of the difficult situation or dependence of parents or foster parents to seize or hand over a child to others to seize.

4. An organizer, instigator, or accomplice who assists in committing any of the acts specified in Clauses 1, 2, and 3 of this Article shall be prosecuted for criminal responsibility as a co-perpetrator.

Article 5. Regarding certain circumstances for determining the sentencing framework as prescribed in point b, Clause 2, Article 120 of the Criminal Code, it refers to the case where the offender commits the crime of buying, swapping, or stealing children five times or more, regardless of whether they have been prosecuted for criminal responsibility or not (five or more times buying children, five or more times swapping children, or five or more times stealing children), if the statute of limitations for criminal prosecution has not expired or if the criminal record has not been expunged, and the offender uses buying, swapping, or stealing children as a means of livelihood, with the proceeds from such acts serving as their primary source of living.

1. "Professional nature" "involving multiple children"

In cases where the offense has occurred five times or more, including instances where the offense has already been sentenced but not yet expunged, depending on specific circumstances, the offender may be subject to aggravating circumstances such as "repeated offenses," "offenses against multiple victims," "recidivism" "recidivism", "for vile motives" ) and "professional nature.") "To obtain parts of the victim's body".

2. As prescribed in point c, Clause 2, Article 120 of the Criminal Code, it refers to the case where the crime is committed with base, lowly, selfish motives, demonstrating betrayal, treachery, cowardice. The offender aims to retaliate or to control the victim and the victim's family or relatives to serve their own schemes. "involving multiple children"

3. As prescribed in point d, Clause 2, Article 120 of the Criminal Code, it refers to the case where two or more children are bought, swapped, or stolen in a single offense or in different offenses. As prescribed in point đ, Clause 2, Article 120 of the Criminal Code, it refers to the case where children are bought, swapped, or stolen to obtain parts of their bodies formed from various types of tissues to perform specific physiological functions of those children.

4. as provided for in Point d Clause 2 of Article 119 of the Criminal Code refers to the act of trafficking in persons with the intent to obtain parts of the body formed from various types of tissue to perform certain physiological functions of that person. As prescribed in point e, Clause 2, Article 120 of the Criminal Code, it refers to the case where children are bought, swapped, or stolen to take them out of Vietnam's territory, including cases where the victims have not yet been taken abroad but there is evidence indicating that the offender intends to take the victims abroad.

5. as provided for in Point đ Clause 2 of Article 119 of the Criminal Code refers to the act of trafficking in persons to send the victim out of the territory of Vietnam, including situations where the victim has not yet been sent abroad but there is evidence indicating that the offender intends to send the victim abroad. "for inhumane purposes"

6. As prescribed in point g, Clause 2, Article 120 of the Criminal Code, it refers to the case where children are bought, swapped, or stolen to be used for cruel purposes, such as using them for experiments; forcing them to engage in hard labor, beg for money; filming, photographing, drawing pornographic or obscene images or similar acts. "for prostitution purposes"

7. As prescribed in point h, Clause 2, Article 120 of the Criminal Code, it refers to the case where children are bought, swapped, or stolen to serve the purpose of prostitution activities (such as buying, swapping, or stealing children and then forcing them to engage in prostitution or bringing them to brothels...). "causing serious consequences"

8. As prescribed in point k, Clause 2, Article 120 of the Criminal Code, it includes one of the following situations: a) Buying, swapping, or stealing children leading to the death of the victim (the victim becomes depressed and commits suicide; the victim falls ill, suffers from diseases or lacks proper care and thus dies);

b) Buying, swapping, or stealing children leading to the victim contracting infectious or incurable diseases such as AIDS, syphilis, etc.;

c) Buying, swapping, or stealing children resulting in the victim's whereabouts being unknown up to the time of the first-instance trial;

d) Buying, swapping, or stealing children leading to the death or suicide of the victim's relatives due to despair and grief, or seriously affecting their health.

In addition to the losses of life and health mentioned above, there may also be non-material consequences, such as adversely affecting the implementation of the Party's policies and State's policies; adversely affecting national security, public order, and social safety. In these cases, the degree of the consequences caused by the crime must be evaluated based on the specific circumstances to determine whether they are serious or not.

In addition to the damages to life and health mentioned above, there may also be non-material consequences, such as adversely affecting the implementation of the Party's guidelines and State policies; adversely affecting national security, public order, and social safety. In these cases, it is necessary to assess on a case-by-case basis whether the severity of the consequences caused by the crime is serious or not.

Article 6. Prosecution for criminal responsibility in certain specific cases

1. Case of using illegal intermediary methods for adoption

a) In the case where the intermediary knows that the adoption is intended to exploit or force child labor or for other unlawful purposes but still uses intermediary methods for adoption to transfer children to such persons in exchange for money, property, or other material benefits, then the intermediary and the adoptive parent shall be prosecuted for the crime of buying and selling children as stipulated in Article 120 of the Criminal Code;

b) In the case where the intermediary for adoption knows that the adoptive parent intends to sell the child to another person after adoption, then the intermediary and the adoptive parent shall be prosecuted for the crime of buying and selling children as stipulated in Article 120 of the Criminal Code;

c) In the case where a person with authority abuses their position and power to accept money, property, or other material benefits to act as an intermediary for illegal adoption (not complying with legal provisions on giving up and adopting children) or facilitates illegal adoption while knowing that the adoptive parent intends to exploit or force child labor or for other unlawful purposes, then such person shall be prosecuted for the crime of buying and selling children as stipulated in Article 120 of the Criminal Code;

d) In the case where a person with authority abuses their position and power to accept money, property, or other material benefits to act as an intermediary for illegal adoption (not complying with legal provisions on giving up and adopting children) or facilitates illegal adoption, but does not know that the adoptive parent intends to exploit or force child labor or has other unlawful purposes, then such person shall not be prosecuted for the crime of buying and selling children. Depending on the specific circumstances, such person may be prosecuted for the crime of abusing position and power while performing official duties (Article 281), the crime of abusing position and power to influence others for personal gain (Article 283), or other crimes as stipulated in the Criminal Code;

e) In the case where a person knows that another person genuinely needs to adopt a child (due to infertility or affection for children) and introduces them to someone who wants to give their own child up for adoption due to difficult family circumstances and lack of conditions to raise the child, hoping for better care, and receives a sum of money, while the intermediary also receives a sum of money for the intermediary service, then the intermediary, the person giving up their child for adoption, and the adoptive parent shall not be prosecuted for the crime of buying and selling children as stipulated in Article 120 of the Criminal Code.

2. In the case where a person kidnaps a child as a hostage to extort property, it is not considered the act of extorting a child as stipulated in Article 120 of the Criminal Code, but shall be prosecuted for the crime of kidnapping to extort property as stipulated in Article 134 of the Criminal Code.

Article 7. Pursuit of criminal responsibility in cases involving multiple criminal acts

1. In cases where a person commits multiple criminal acts as provided for in Article 120 of the Criminal Code, and these acts are closely related to each other (one act is a condition for committing or is an inevitable consequence of the other act), they shall be pursued for criminal responsibility with full charges for all committed acts under Article 120 of the Criminal Code and shall only bear one penalty.

Example: A person who swaps a child and then appropriates and sells the swapped child to another person shall be pursued for criminal responsibility with the charge of buying, swapping, and appropriating children under Article 120 of the Criminal Code and shall bear one penalty.

2. In cases where a person commits multiple criminal acts as provided for in Article 120 of the Criminal Code, and these acts are independent from each other, they shall be pursued for criminal responsibility for the separate offenses they have committed. When adjudicating, the Court applies Article 50 of the Criminal Code to determine the combined penalty.

Example: A person buys a child to sell to another person and is caught, subsequently it is discovered that this person also committed the act of appropriating another child. In this case, the offender shall be pursued for criminal responsibility for the offense of buying and selling children and the offense of appropriating children under Article 120 of the Criminal Code. For this case, the Court determines the corresponding penalties for each offense and then decides the combined penalty for both offenses according to Article 50 of the Criminal Code.

Chapter III
IMPLEMENTING PROVISIONS

Article 8. Effective Date

This Circular takes effect from September 9, 2013.

Article 9. Implementation Organization

The Supreme People's Court, the Supreme People's Procuracy, the Ministry of Public Security, the Ministry of National Defense, and the Ministry of Justice shall organize the implementation of this Circular within their respective duties and authorities.

During the implementation process, if there are difficulties requiring clarification or supplementary guidance, they should be reported to the Supreme People's Court, the Supreme People's Procuracy, the Ministry of Public Security, the Ministry of National Defense, and the Ministry of Justice for timely guidance.

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