Joint Circular No. 10/2012/TTLT-BCA-BQP-BTP-BTTTT-VKSNDTC-TANDTC guiding the application of provisions of the Criminal Code regarding certain offenses in the field of information technology and telecommunications.

 JOINT CIRCULAR

Guidelines on the Application of Criminal Code Provisions Regarding Certain Offenses

In the Field of Information Technology and Telecommunications

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To apply correctly and uniformly the provisions of the 1999 Criminal Code (amended and supplemented in 2009) to certain offenses in the field of information technology and telecommunications, the Ministry of Public Security, the Ministry of National Defense, the Ministry of Justice, the Ministry of Information and Communications, the Supreme People's Procuracy, and the Supreme People's Court issue these joint circulars guiding the application of criminal code provisions regarding certain offenses in the field of information technology and telecommunications,

Chapter I GENERAL PROVISIONS

Article 1. Scope of Regulation

These joint circulars guide the handling of offenses prescribed in Articles 224, 225, 226, 226a, 226b of Chapter XIX of the 1999 Criminal Code (amended and supplemented in 2009).

Article 2. Interpretation of Terms

In this Circular, the following terms shall be understood as follows:

An information program with harmful features is an automated information processing program that causes abnormal operations for digital devices or copies, modifies, deletes stored information in digital devices.

Digital device data is the operating system, application software, and information contained within digital devices.

A computer network is a collection of computers connected to each other, capable of sharing data among themselves.

Legally protected private information of agencies, organizations, and individuals is information owned by agencies, organizations, and individuals that are protected by law.

Electronic commerce is the conduct of one or all stages of commercial activities through electronic means.

Bank card is a payment tool issued by a bank to customers for use under a contract signed between the issuing bank and the cardholder.

Warning is a notification that does not allow unauthorized persons to access the database.

Access code is a mandatory condition that meets a specific standard criterion before using or accessing protected devices or data content.

Firewall is a set of components or a system of equipment, software, or hardware placed between two or more networks, designed to control all connections from inside to outside the network and vice versa, while preventing unauthorized intrusion and connection.

Network management rights for computer networks, telecommunications networks, and the Internet are the rights to manage, operate, exploit, and maintain the stable operation of computer networks, telecommunications networks, and the Internet for individuals and organizations.

State secret information system is an information system managed by agencies or organizations containing information about cases, documents, objects, locations, times, statements with important contents in political, national defense, security, foreign affairs, economic, scientific, technological fields, and other areas that the State does not disclose or has not yet disclosed, and if disclosed would cause harm to the Socialist Republic of Vietnam and is protected according to the laws on state secrets protection.

Information system serving security is an information system of agencies or organizations containing data related to ensuring the stability and sustainable development of the socialist social system and the Socialist Republic of Vietnam, the inviolability of independence, sovereignty, unity, territorial integrity of the country.

Information system serving national defense is an information system of organizations or state agencies containing data related to protecting the country.

National power grid information system is an information system serving the management and operation of national power facilities to transmit electricity from power generation sites to agencies, organizations, and individuals using electricity.

Traffic control information system is an information system of state agencies serving the management and operation of traffic facilities to ensure smooth, orderly, and safe traffic operations.

Financial and banking information system is an information system containing databases serving one or more technical business activities in finance and banking.

Article 3. Certain circumstances are elements in determining guilt or sentencing range

1. When applying the circumstances: "causing serious consequences," "causing very serious consequences," "causing particularly serious consequences," attention must be paid: The consequences must be caused by the criminal act (there must be a causal relationship between the criminal act and those consequences). These consequences may include material damage (such as money, machinery, technical software... or damage due to malfunctioning machinery, technical software leading to production activity losses...) or non-material consequences such as adversely affecting the implementation of the Party's policies, State laws; adversely affecting national security, public order, social safety; infringing upon human dignity, reputation, the prestige of agencies, organizations... Determining that the consequence is property damage for the purpose of being an element in determining guilt or sentencing range shall not be based on the value of the property stolen, because this value has been defined as a separate sentencing circumstance. The damage must be property loss occurring outside the value of the property stolen. For example: Account B at Bank T has five million dong. A illegally accesses account B and steals five million dong. During the illegal access to account B, Bank T's network system is damaged and Bank T spends fifty million dong to fix the problem. In this case, the damage caused by A's actions is fifty million dong.

2. Property damage caused by the crime includes direct damage and indirect damage:

a) Direct damage is damage directly caused by the criminal act, including damage to software, hardware, digital equipment...

b) Indirect damage is damage resulting from direct damage. Example: A disseminates a virus causing the production network of Company B to stop operating for two hours. Company B spends seven million dong to restore the network to its original state before the virus disseminated by A entered. Due to the network of Company B stopping for two hours, the production activities of Company B were disrupted, causing a loss of two hundred million dong. In this case, the damage caused by A's action of disseminating the virus to Company B is two hundred and seven million dong (including direct damage of seven million dong and indirect damage of two hundred million dong).

3. In cases where there is sufficient evidence to prove that the person committing the infringement intended to infringe upon specific property according to their subjective awareness, then the value of that property shall be considered when pursuing criminal responsibility against the person committing the infringement.

Article 4. Identifying the Victim

During the investigation of criminal cases involving crimes in the field of information technology and telecommunications, judicial organs must apply measures to verify and take statements from victims in accordance with the law. In cases where it is objectively impossible to identify the victim (the victim lives abroad; the specific victim cannot be identified or their real name and address cannot be determined because the perpetrator and the victim did not have direct contact but only through the Internet or telecommunications networks; the victim does not cooperate because they do not want their identity revealed, the amount of damage is not significant...), however, based on collected materials and evidence, there is a basis to determine that the suspect or defendant has committed a criminal act, then the inability to identify the victim or insufficient number of identified victims does not affect the determination of the nature of the case and the initiation, investigation, prosecution, and trial are based on legal grounds.

Article 5. Procedure for collecting electronic data

1. Electronic data is information contained in electronic devices. Electronic data can be considered as evidence. To ensure evidentiary value, it is necessary to follow the correct criminal procedure for searching, seizing, temporarily holding, and preserving physical evidence containing electronic data such as: computer hard drives, internal memory of mobile phones, cameras, video recorders, fax machines, audio recorders, card readers, magnetic cards, chip cards, memory cards, USB drives, CDs, VCDs, DVDs, and other types of electronic devices. When seizing electronic devices, attention must be paid:

a) For computers: It is not allowed to shut down the device through the normal shutdown process but instead, the power supply to the main unit (CPU) or the laptop itself must be directly cut off;

b) For mobile phones: Turn off the phone, seize the phone, memory card, SIM card, and charger (if available);

c) For other electronic devices: Turn off the device, seize all accessories (if available).

2. When handing over to experts for restoring electronic data, procedures for opening and sealing must be carried out according to the provisions of the law. To ensure the original state and integrity of the evidence stored in the physical evidence, data restoration and analysis must be performed using a "read-only" device, only on copies, without overwriting or modifying the data. To convert into legal evidence, electronic data must be converted into a readable, visible, or audible format; a record of the restored and analyzed electronic data content must be established; accompanied by statements and confirmations from the offender or witnesses regarding those information.

Chapter II SPECIFIC PROVISIONS

Article 6. On the crime of disseminating viruses and harmful computer programs affecting the operation of computer networks, telecommunications networks, the Internet, and digital devices (Article 224 of the Criminal Code)

1. Intentionally disseminating viruses and harmful computer programs affecting computer networks, telecommunications networks, the Internet, and digital devices means intentionally spreading virus programs or harmful computer programs aimed at disrupting operations, blocking, copying, distorting, or destroying data of computers, telecommunications devices, or digital devices.

2. Causing serious consequences as stipulated in Clause 1, Article 224 of the Criminal Code is causing material damage valued from fifty million dong to less than two hundred million dong.

3. Causing very serious consequences as stipulated in Point b, Clause 2, Article 224 of the Criminal Code is causing material damage valued from two hundred million dong to less than five hundred million dong.

4. Causing extremely serious consequences as stipulated in Point c, Clause 3, Article 224 of the Criminal Code is causing material damage valued at five hundred million dong or more.

Article 7. On the crime of obstructing or disrupting the operation of computer networks, telecommunications networks, the Internet, and digital devices (Article 225 of the Criminal Code)

1. Deleting, damaging, or altering software or data of digital devices as stipulated in Point a, Clause 1, Article 225 of the Criminal Code is the intentional act of deleting, damaging, or altering software or data of digital devices without the consent of the subject managing the digital technical data.

2. Illegally preventing the transmission of data in computer networks, telecommunications networks, the Internet, and digital devices as stipulated in Point b, Clause 1, Article 225 of the Criminal Code is the illegal act of intentionally interrupting or preventing the transmission of data in computer networks, telecommunications networks, the Internet, and digital devices.

3. Other acts obstructing or disrupting the operation of computer networks, telecommunications networks, the Internet, and digital devices as stipulated in Point c, Clause 1, Article 225 of the Criminal Code is the intentional act of a person without the right to manage, operate, or exploit computer networks, telecommunications networks, the Internet, and digital devices, affecting their normal operation by introducing, transmitting, damaging, deleting, reducing, replacing, or compressing computer data, telecommunications devices, or digital devices.

4. Exploiting management rights of computer networks, telecommunications networks, and the Internet as stipulated in Point b, Clause 2, Article 225 of the Criminal Code is when the offender uses the management, operation, exploitation, and maintenance rights of their own computer network, telecommunications network, or Internet system to commit the criminal act.

5. Causing serious consequences as stipulated in Clause 1, Article 225 of the Criminal Code is causing material damage valued from fifty million dong to less than two hundred million dong.

6. Causing very serious consequences as stipulated in Point c, Clause 2, Article 225 of the Criminal Code is causing material damage valued from two hundred million dong to less than five hundred million dong.

7. Causing extremely serious consequences as stipulated in Point c, Clause 3, Article 225 of the Criminal Code is causing material damage valued at five hundred million dong or more.

Article 8. On the crime of illegally disseminating or using information on computer networks, telecommunications networks, or the Internet (Article 226 of the Criminal Code)

1. The term "abusing management rights over computer networks, telecommunications networks, or the Internet" as stipulated in Point b, Clause 2, Article 226 of the Criminal Code shall be understood as the offender having utilized the right to manage, operate, exploit, and maintain the stable operation of their own computer network, telecommunications network, or Internet system to commit the criminal act.

2. It should be noted that in cases where non-material consequences can be determined based on the assessment of negative impacts on the implementation of the Party's guidelines and State policies, 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 specific conditions as serious, very serious, or extremely serious.

3. Causing serious consequences as stipulated in Clause 1, Article 226 of the Criminal Code includes one of the following situations:

a) Causing material damage with a value from fifty million VND to less than two hundred million VND;

b) Affecting the reputation of agencies or organizations, leading to disruption and paralysis of their activities.

4. Causing very serious or extremely serious consequences as stipulated in Point d, Clause 2, Article 226 of the Criminal Code (although the nature and severity of the acts may differ but have the same penalty range) includes one of the following situations:

a) Causing material damage with a value of two hundred million VND or more;

b) Affecting the reputation of agencies or organizations, leading to the dissolution or bankruptcy of those agencies or organizations.

Article 9. On the crime of unauthorized access to another person’s computer network, telecommunications network, Internet, or digital device (Article 226a of the Criminal Code)

1. Using another person's management rights shall be understood as the offender having illegally utilized the right to manage, operate, exploit, and maintain the stable operation of another person's computer network, telecommunications network, Internet, or digital device to commit the criminal act.

2. Obtaining substantial unlawful gains as stipulated in Point c, Clause 2, Article 226a of the Criminal Code means obtaining unlawful gains with a value from twenty million VND to less than one hundred million VND.

3. Obtaining very substantial or extremely substantial unlawful gains as stipulated in Point c, Clause 3, Article 226a of the Criminal Code means obtaining unlawful gains with a value of one hundred million VND or more.

4. Causing serious consequences as stipulated in Point d, Clause 2, Article 226a of the Criminal Code means causing material damage with a value from fifty million VND to less than two hundred million VND.

5. Causing very serious or extremely serious consequences as stipulated in Point d, Clause 3, Article 226a of the Criminal Code (although the nature and severity of the acts may differ but have the same penalty range) means causing material damage with a value of two hundred million VND or more.

Article 10. On the crime of using computer networks, telecommunications networks, the Internet, or digital devices to commit property theft (Article 226b of the Criminal Code)

1. Counterfeiting bank cards refers to individuals without authority to produce or issue bank cards producing cards similar to bank cards (containing information and data like those issued by banks).

2. Unauthorized access to accounts refers to the intentional act of bypassing warnings, access codes, firewalls, or using another person's access code without permission to access an account that does not belong to them.

3. Fraud in e-commerce, financial trading, credit mobilization, stock buying and selling, and payment through the network involves using deceptive methods, providing false information about a product, issue, or field in e-commerce, financial trading, credit mobilization, stock buying and selling, and payment through the network to create trust in the asset owner or manager, making them believe it is true and buy, sell, or invest in that field.

4. Other acts as stipulated in Point f, Clause 1, Article 226b of the Criminal Code include sending fraudulent winning messages but actually having no prize to defraud service message fees; advertising sales on the Internet or telecommunications networks but failing to deliver goods or delivering incorrect quantities, types, or lower quality goods than advertised, and similar acts.

5. Committing the crime multiple times as stipulated in Point b, Clause 2, Article 226b of the Criminal Code means committing the crime of using computer networks, telecommunications networks, the Internet, or digital devices to steal assets at least twice without being prosecuted for criminal responsibility and within the statute of limitations for prosecution.

6. When applying the circumstance of committing a professional crime as stipulated in Point c, Clause 2, Article 226b of the Criminal Code, attention should be paid to:

a) Applying the circumstance of committing a professional crime only when there are sufficient circumstances: - Having committed the act of committing crimes using computer networks, telecommunications networks, the Internet, or digital devices to steal assets five or more times, regardless of whether they have been prosecuted for criminal responsibility or not, if the statute of limitations for prosecution has not expired or the conviction has not been expunged; - The offender uses the unlawful income obtained from such crimes as their main source of living.

b) If among the offenses committed, there is an offense that has been sentenced and not yet expunged, then depending on the specific situation, the offender may be subject to all three circumstances: "committing the crime multiple times," "recidivism" (or "dangerous recidivism"), and "committing a professional crime."

7. Causing serious consequences as stipulated in Point f, Clause 2, Article 226b of the Criminal Code means causing material damage with a value from fifty million VND to less than five hundred million VND.

8. Causing very serious consequences as stipulated in Point b, Clause 3, Article 226b of the Criminal Code means causing material damage with a value from five hundred million VND to less than one billion five hundred million VND.

9. Causing extremely serious consequences as stipulated in Point b, Clause 4, Article 226b of the Criminal Code means causing material damage with a value of one billion five hundred million VND or more.

Chapter III IMPLEMENTATION PROVISIONS

Article 11. Effective Date

This Circular takes effect from October 29, 2012.

Article 12. Transitional Provisions

1. The guidelines set forth in this Circular, if they reduce criminal liability compared to previous regulations, shall be applied during investigations, prosecutions, first-instance trials, appeals, supervisory reviews, or retrials concerning persons who committed offenses before the effective date of this Joint Circular.

2. In cases where offenders have been sentenced according to the provisions of previous legal documents and such judgments have become legally binding, the guidelines of this Joint Circular shall not be applied to file supervisory review or retrial protests. If, under this Joint Circular, they are not subject to criminal responsibility, the matter shall be resolved through procedures for exemption from punishment.

3. For cases that are being investigated, prosecuted, or undergoing first-instance trials, appeals, supervisory reviews, or retrials and which apply the guidelines of this Joint Circular to declare exemption from criminal responsibility for the accused, the Investigative Agency, the Prosecutor's Office, and the Court must clearly explain to them that such an exemption from criminal responsibility does not serve as grounds for compensation for damages caused by authorized officials of the investigative agencies.

Article 13. Implementation Organization

During the implementation of this Joint Circular, any arising issues should be reported to the Ministry of Public Security, the Ministry of National Defense, the Ministry of Justice, the Ministry of Information and Communications, the Supreme People's Procuracy, and the Supreme People's Court for timely supplementary explanations and guidance.