Joint Circular No. 09/2011/TTLT-BCA-BQP-BTP-NHNNVN-VKSNDTC-TANDTC guiding the application of provisions of the Criminal Code on the crime of harboring or disposing of property obtained from other persons’ criminal activities and the crime of money laundering.

JOINT CIRCULAR
Guidelines for the application of provisions of the Criminal Code on the crime of harboring or disposing of property obtained from criminal activities of others and money laundering
To apply correctly and uniformly the provisions of the Criminal Code of 1999 (amended and supplemented in 2009) regarding the crime of harboring or disposing of property obtained from criminal activities of others and money laundering, the Ministry of Public Security, the Ministry of National Defense, the Ministry of Justice, the State Bank, the Supreme People's Procuracy, and the Supreme People's Court provide the following guidelines:

_____________

Article 1. Interpretation of terms prescribed in Article 250, Article 251 of the Criminal Code

1. "Property obtained from criminal activities of others" refers to property directly acquired by the perpetrator through committing the criminal act (for example: stolen property, embezzled property, received bribes...) or property acquired by the perpetrator through buying, selling, or exchanging with property directly obtained from their criminal acts (for example: a motorcycle obtained by using embezzled money to purchase it).

2. "Knowing clearly that the property is obtained from criminal activities of others" means having evidence to prove knowledge of property directly obtained from the person committing the criminal act or property obtained from buying, selling, or exchanging with property directly obtained from the person committing the criminal act.

3. Property includes: objects, money, negotiable instruments, and proprietary rights; real estate, movable property, income, profits, principal objects, accessory objects, divisible objects, indivisible objects, consumable objects, non-consumable objects, similar objects, specific objects, integrated objects, and proprietary rights.

Article 2. On the crime of harboring or disposing of property obtained from criminal activities of others (Article 250 of the Criminal Code)

1. Harboring property includes the following actions: storing, concealing, preserving property; allowing others to store, conceal, or preserve property.

2. Disposing of property includes the following actions: purchasing, selling, leasing, renting, exchanging, pledging, mortgaging, depositing, giving, receiving property, or assisting in the performance of these actions.

3. When applying the aggravating circumstance of professional nature provided for in point b, Clause 2, Article 250 of the Criminal Code, attention should be paid to the following:

a) The aggravating circumstance of professional nature shall only be applied if all of the following conditions are met:

- Committing the offense of harboring or disposing of property obtained from criminal activities of others five times or more, regardless of whether they have been prosecuted for criminal responsibility or not, if the statute of limitations has not expired or the conviction has not been expunged;

- The offender does not have a profession or uses illicit income obtained from criminal activities as their main source of livelihood.

b) In cases where among the offenses committed, there is an offense that has already been sentenced but the conviction has not been expunged, depending on the specific circumstances, the offender may be subject to all three aggravating circumstances of:

"Reoffending multiple times," "recidivism" (or "dangerous recidivism"), and "professional nature of the offense." 4. "Property, contraband items of significant value" as stipulated in point c, Clause 2, Article 250 of the Criminal Code refers to property, contraband items valued at fifty million dong or more but less than two hundred million dong.

5. "Property, contraband items of very significant value" as stipulated in point a, Clause 3, Article 250 of the Criminal Code refers to property, contraband items valued at two hundred million dong or more but less than five hundred million dong.

6. "Property, contraband items of exceptionally significant value" as stipulated in point a, Clause 4, Article 250 of the Criminal Code refers to property, contraband items valued at five hundred million dong or more.

7. "Significant unlawful profit" as stipulated in point d, Clause 2, Article 250 of the Criminal Code refers to unlawful profit ranging from ten million dong to less than fifty million dong.

8. "Very significant unlawful profit" as stipulated in point b, Clause 3, Article 250 of the Criminal Code refers to unlawful profit ranging from fifty million dong to less than one hundred million dong.

9. "Exceptionally significant unlawful profit" as stipulated in point b, Clause 4, Article 250 of the Criminal Code refers to unlawful profit of one hundred million dong or more.

10. Other matters to note:

a) From the subjective aspect of the crime, the person committing the criminal act must know clearly that the property they are harboring or disposing of is property obtained from criminal activities, but without prior agreement, discussion, or arrangement with the person who has property obtained from criminal activities.

b) If the property obtained from criminal activities is narcotics, precursor chemicals for narcotics, explosives, firecrackers, weapons, auxiliary equipment, military technical equipment, explosives, radioactive materials, flammable materials, toxic substances, prohibited goods, counterfeit goods, and if the elements constituting the corresponding criminal offense are present, the person committing the act of harboring or disposing of such property will be prosecuted for the corresponding criminal offense rather than the crime of harboring or disposing of property obtained from criminal activities of others.

b) In the case where the property derived from the crime is narcotics, precursor substances for narcotics, explosives, firecrackers, weapons, auxiliary tools, military technical equipment, explosive materials, radioactive substances, flammable materials, toxic substances, prohibited goods, counterfeit goods, if there are sufficient elements to constitute the corresponding criminal offense, the person who commits the act of harboring or consuming such property shall be prosecuted for the corresponding criminal offense without being prosecuted for the offense of harboring or consuming property derived from another person's crime.

Article 3. On Money Laundering Offense (Article 251 of the Criminal Code)

1. Directly or indirectly participating in financial transactions, banking transactions, or other transactions related to money or assets with the purpose of concealing the illegal origin of such money or assets means carrying out, supporting the carrying out, or through others to carry out, support the carrying out of any of the following acts to conceal the illegal origin of such money or assets:

a) Depositing money and opening bank accounts;

b) Pledging or mortgaging assets;

c) Lending, entrusting, leasing, financing purchases;

d) Transferring money, exchanging money;

đ) Buying and selling stocks, bonds, and other securities;

e) Issuing securities;

g) Issuing payment instruments;

h) Financial guarantees and commitments, foreign exchange trading, money market and securities instruments that can be transferred;

i) Managing individual or collective investment portfolios;

k) Managing cash or liquid securities on behalf of individuals or collectives;

l) Investing capital or money for individuals or collectives;

m) Conducting life insurance and insurance activities related to other investments;

n) Activities aimed at creating a change, transfer, or alteration of ownership rights over money or assets of individuals, agencies, organizations.

2. Using money or assets known to have been obtained from criminal offenses in conducting business activities or other activities means using such money or assets in business operations, services, establishing companies, building schools, hospitals, purchasing assets under various forms, or using under the guise of sponsorship, charity, humanitarian aid.

3. "Committing the offense multiple times" as stipulated in point c, Clause 2, Article 251 of the Criminal Code refers to money laundering two or more times, and in those instances, none has been prosecuted criminally and the statute of limitations for criminal prosecution has not expired.

4. When applying the professional nature of the offense as stipulated in point d, Clause 2, Article 251 of the Criminal Code, attention should be paid to:

- Committing the offense of harboring or disposing of property obtained from criminal activities of others five times or more, regardless of whether they have been prosecuted for criminal responsibility or not, if the statute of limitations has not expired or the conviction has not been expunged;

- Committing the money laundering act five or more times or more, regardless of whether it has been prosecuted criminally or not, if the statute of limitations for criminal prosecution has not expired or the record has not been expunged;

b) In cases where among the offenses committed, there is an offense that has already been sentenced but the conviction has not been expunged, depending on the specific circumstances, the offender may be subject to all three aggravating circumstances of:

"Reoffending multiple times," "recidivism" (or "dangerous recidivism"), and "professional nature of the offense." 4. "Property, contraband items of significant value" as stipulated in point c, Clause 2, Article 250 of the Criminal Code refers to property, contraband items valued at fifty million dong or more but less than two hundred million dong.

5. "Money or assets of significant value" as stipulated in point e, Clause 2, Article 251 of the Criminal Code refers to money or assets obtained from criminal offenses valued between two hundred million VND and less than five hundred million VND.

6. "Money or assets of very large or extremely large value" as stipulated in point b, Clause 3, Article 251 of the Criminal Code refers to money or assets valued at five hundred million VND or more.

7. "Significant unlawful profit" as stipulated in point g, Clause 2, Article 251 of the Criminal Code refers to profits valued between fifty million VND and less than one hundred million VND.

8. "Very significant or extremely significant unlawful profit" as stipulated in point b, Clause 3, Article 251 of the Criminal Code refers to profits valued at one hundred million VND or more.

9. "Causing serious consequences" as stipulated in point h, Clause 2, Article 251 of the Criminal Code refers to causing damage valued between two hundred million VND and less than five hundred million VND.

10. "Causing very serious or extremely serious consequences" as stipulated in point c, Clause 3, Article 251 of the Criminal Code refers to causing damage valued at five hundred million VND or more.

11. When applying circumstances causing serious, very serious, or extremely serious consequences, it is necessary to determine that the damage caused by the criminal act lies outside the value of the assets obtained from the crime.

In addition to property damage, the money laundering offense may also have other negative impacts on the implementation of the Party's policies, state laws, national security, social order and safety, the stability of the national financial and monetary system, and other non-material consequences. Accordingly, the severity of the consequences caused by the crime must be assessed based on specific cases as serious, very serious, or extremely serious.

Article 4. Transitional Provisions

1. Directives in this Circular that reduce criminal liability compared to before shall be applied during investigation, prosecution, first-instance trial, second-instance trial, supervisory trial, or retrial for persons who commit crimes before this Circular takes effect.

2. In cases where the offender has been sentenced and the judgment has become legally binding, these directives in this Circular shall not be applied to file supervisory or retrial protest petitions unless there are other grounds for protest. If, according to this Circular, they are not subject to criminal liability, the procedure for exemption from punishment shall be followed.

3. For cases currently under investigation, prosecution, first-instance trial, second-instance trial, supervisory trial, or retrial, if the directives in this Circular are applied to declare exemption from criminal liability for the accused, the investigating agency, the prosecution office, and the court need to clearly explain to the accused that the exemption from criminal liability provided for in this Circular is not a basis for compensation for damages caused by authorized officials of the investigative agencies.

Article 5. Effective Date

This Circular takes effect from February 7, 2012.

Article 6. Responsibility for Implementation

Relevant agencies and units of the Ministry of Public Security, the Ministry of National Defense, the Ministry of Justice, the State Bank of Vietnam, the Supreme People's Procuracy, and the Supreme People's Court are responsible for implementing and organizing the implementation of the directives in this Circular.

During the implementation of this Circular, if there are any difficulties, relevant agencies and units shall report them to the Ministry of Public Security, the Ministry of National Defense, the Ministry of Justice, the State Bank of Vietnam, the Supreme People's Procuracy, and the Supreme People's Court for timely guidance.