Joint Circular No. 10/2013/TTLT-BTP-BCA-TANDTC-VKSNDTC-BTC guides the application of certain provisions of the Criminal Code regarding crimes in the fields of taxation, finance-accounting, and securities.

JOINT CIRCULAR

Guidelines on the application of certain provisions of the Penal Code concerning crimes in the fields of tax, finance-accounting, and securities

To apply correctly and uniformly the provisions of the Penal Code (hereinafter referred to as the Penal Code) regarding crimes in the fields of tax, finance-accounting, and securities, the Ministry of Justice, the Ministry of Public Security, the Supreme People's Court, the Supreme Procuratorate, and the Ministry of Finance hereby jointly issue the following guidelines:

Article 1. On the crime of tax evasion (Article 161 of the Penal Code)

1. A person committing the crime of tax evasion is one who carries out any of the acts stipulated in Article 108 of the Law on Tax Administration, while also satisfying the signs specified in Article 161 of the Penal Code.

2. The crime of tax evasion in particularly serious circumstances as provided for in Clause 3 of Article 161 of the Penal Code shall be understood as a situation where although the amount of tax evasion is valued from VND 300 million to less than VND 600 million, the perpetrator simultaneously commits one of the related acts that have not reached the level of being prosecuted for an independent criminal offense, such as bribery; resisting public officials in the performance of their duties; causing injury to public officials performing their duties; destroying property of tax management agencies, tax officers, and other state agencies responsible for tax administration. If these acts constitute other criminal offenses, in addition to the crime of tax evasion, the perpetrator will also be held criminally responsible for the corresponding offenses.

Article 2. On the crime of illegally printing, issuing, buying, and selling invoices and receipts for payment to the State budget (Article 164a of the Penal Code)

1. Invoices and receipts for payment to the State budget include:

a) Export invoices used in export trade activities of goods and services to foreign countries, export to free zones; value-added tax invoices; domestic sales invoices for organizations and individuals subject to VAT; other invoices including stamps, tickets, cards, payment receipts for insurance premiums, and air cargo transportation fee payment receipts; international transportation fee receipts, service fee receipts from banks;

b) Orders for payment to the State budget, payment receipts to the State budget, tax declaration forms, State budget revenue receipts, and recovery documents in State budget revenue management.

2. Subjects committing this crime include:

a) Individuals selling goods or providing services, or persons of business organizations selling goods or providing services;

b) Persons of organizations receiving or commissioning the printing of invoices;

c) Individuals or persons of organizations purchasing goods or services.

3. The acts stipulated in Article 164a of the Penal Code shall be understood as follows:

a) Illegally printing invoices and receipts for payment to the State budget means printing invoices or creating electronic invoices without meeting the conditions or not complying with or fully completing the contents prescribed by law; printing fake invoices or creating fake electronic invoices;

b) Illegally issuing invoices and receipts for payment to the State budget means establishing issuance notices with incomplete contents; not sending or posting issuance notices for invoices as required;

c) Illegally buying and selling invoices and receipts for payment to the State budget includes the following acts:

c.1) Buying or selling invoices without recorded content or with incomplete or inaccurate content according to regulations;

c.2) Buying or selling invoices with recorded content but without accompanying goods or services;

c.3) Buying or selling fake invoices, invoices without usage value, expired invoices, or invoices from other businesses or service providers to legitimize purchased goods or services or provide to customers when selling goods or services;

c.4) Buying or selling, using invoices with discrepancies in the value of goods or services between invoice copies.

4. Large, very large, or extremely large quantities of invoices and receipts for payment to the State budget shall be understood as follows:

a) More than 50 but less than 100 blank invoices or receipts (without recorded value) are considered large; 100 or more are considered very large or extremely large;

b) More than 10 but less than 30 invoices or receipts with recorded content aimed at illegal acts are considered large; 30 or more are considered very large or extremely large.

5. Obtaining substantial unlawful gains means obtaining benefits valued at VND 100 million or more from the aforementioned criminal acts.

6. Causing serious consequences means causing damage to the State budget valued at VND 100 million or more.

Article 3. On the offense of violating regulations on the storage and management of invoices and revenue collection certificates for the State budget (Article 164b of the Penal Code)

1. The subject of this criminal offense is:

a) A person buying, selling goods or providing services;

b) A person responsible for an organization buying, selling goods or providing services;

c) A person responsible for an organization printing or receiving printed invoices.

2. Acts of violating regulations on the storage and management of invoices and revenue collection certificates for the State budget include:

a) Storing and preserving invoices not in accordance with regulations;

b) Not reporting or reporting inaccurately on the situation of using, settling payments, and finalizing invoice usage;

c) Damaging or losing invoices;

d) Implementing the cancellation of invoices not in accordance with legal provisions;

đ) Handling the loss, fire damage, or deterioration of invoices not in accordance with legal provisions.

3. Causing serious consequences means causing damage to the State budget with a value from VND 100 million to less than VND 500 million.

4. Causing very serious or extremely serious consequences means causing damage to the State budget with a value of VND 500 million or more.

Article 4. On the offense of intentionally publishing false information or concealing the truth in securities activities (Article 181a of the Penal Code)

1. Explanation of terms:

a) Offering securities as defined in Article 181a of the Penal Code includes offering securities to the public and offering individual securities.

Offering securities to the public is the act of offering securities through various methods: via mass media, including the Internet; offering securities to one hundred or more investors, excluding professional securities investors; offering to an unspecified number of investors;

Offering individual securities is the act of an organization offering securities to fewer than one hundred investors, excluding professional securities investors and without using mass media or the Internet;

b) Listing securities is the act of putting securities that meet the conditions into trading at the Stock Exchange;

c) Custody of securities is the act of accepting deposits, preserving, transferring securities for customers, assisting customers in exercising rights related to ownership of securities;

d) Registration of securities is the act of recording ownership rights and other rights of the holder of securities;

đ) Settlement and payment is the final step to complete the securities trading process.

2. The acts stipulated in Clause 1 of Article 181a of the Penal Code are understood as follows:

a) Intentionally publishing false information in securities activities means that the offender has published information that does not correspond to the truth related to the activities of joint-stock companies, issuers, listed organizations, registration and trading organizations, securities companies, fund management companies, investment securities companies, and the information in the prospectus for issuing securities, listing registration application, securities trading application, application for establishment and operation permits of enterprises operating in the securities sector, registration, custody, settlement, and payment applications for securities;

b) Concealing the truth in securities activities means that the offender does not publish or intentionally publishes incomplete information in the prospectus for issuing securities, listing registration application, securities trading application, application for establishment and operation permits of enterprises operating in the securities sector; registration, custody, settlement, and payment applications for securities.

3. The subject of this criminal offense is one of the following:

a) Chairman of the Board of Directors, Member of the Board of Members, or Chairman of the company, General Director or Managing Director, Chief Financial Officer or Chief Accountant of the issuer, listed organization, registration and trading organization, fund management investment securities company, investment securities company;

b) Legal representative of the consulting organization for issuance, guarantee organization for issuance, approved auditing organization, those directly implementing issuance consulting, listing guarantee issuance, auditing financial statements, authorized person to publish information;

c) Legal representative of the organization registering and custodizing securities;

d) Other persons who may be accomplices in this crime.

4. Some circumstances are factors increasing the penalty framework prescribed in Article 181a of the Penal Code are understood as follows:

a) Causing serious consequences means causing material damage to investors with an amount from VND 1 billion to less than VND 3 billion;

b) Causing very serious or extremely serious consequences means causing material damage to investors with an amount of VND 3 billion or more.

In addition to causing material damage, the criminal act may also cause non-material consequences such as: affecting the implementation of State policies and laws on the securities market; eroding investor confidence in the securities market; affecting the fairness, transparency, openness, and safety of the securities market.

In these cases, it must be evaluated based on specific circumstances to determine the level of consequences caused by the crime: serious, very serious, or extremely serious.

c) Obtaining significant illicit gains means obtaining a profit with a value of VND 500 million or more from the implementation of the aforementioned criminal act.

Article 5. On the crime of using insider information to buy and sell securities (Article 181b of the Penal Code)

1. Explanation of terms:

a) Insider information as defined in Article 181b of the Penal Code means information related to the operation of a public company or a public fund that has not yet been disclosed but if disclosed could significantly affect the price of securities of such public company or public fund;

b) A public company is a joint-stock company falling under one of the following three types: a company that has conducted a public offering of shares; a company whose shares are listed on a stock exchange or a securities trading center; a company whose shares are held by at least one hundred investors, excluding professional securities investors, and with a subscribed charter capital of ten billion Vietnamese dong or more;

c) A public fund is a securities investment fund conducting a public offering of fund certificates.

2. The act of using insider information to buy and sell securities includes:

a) Using insider information to buy or sell securities for oneself;

b) Using insider information to buy or sell securities for others;

c) Disclosing insider information or advising others to buy or sell securities based on insider information.

3. The subject of this criminal offense is one of the following:

a) Members of the Board of Directors, Supervisory Board, General Director or Managing Director, Deputy General Director or Deputy Managing Director, Chief Financial Officer, Chief Accountant of a public company; members of the Management Board of a public fund;

b) Large shareholders of a public company or public fund;

c) Auditors of financial statements of a public company or public fund;

d) Securities professionals of a securities company or a fund management company;

e) Persons from organizations or individuals having business cooperation or service provision relationships with a public company or public fund and working in those organizations;

g) Individuals who directly or indirectly obtain insider information from the subjects guided in points a, b, c, d, đ and e of this clause.

4. Some circumstances as factors determining the offense or sentencing range prescribed in Article 181b of the Penal Code are understood as follows:

a) Obtaining significant illegal gains means obtaining a profit amounting from five hundred million dong to less than one billion five hundred million dong from committing the aforementioned criminal acts;

b) Obtaining very significant or extremely significant illegal gains means obtaining a profit amounting from one billion five hundred million dong or more from committing the aforementioned criminal acts;

c) Causing serious consequences means causing material damage to investors with an amount from one billion dong or more.

In addition to causing material damage, the criminal act may also cause non-material consequences such as: affecting the implementation of State policies and laws on the securities market; eroding investor confidence in the securities market; affecting the fairness, transparency, openness, and safety of the securities market.

In these cases, it must be evaluated based on specific circumstances to determine the level of consequences caused by the crime: serious, very serious, or extremely serious.

Article 6. On the crime of manipulating security prices (Article 181c of the Penal Code)

1. Causing serious consequences as stipulated in Clause 1 of Article 181c of the Penal Code means causing material damage to investors with an amount from one billion dong to less than three billion dong;

2. Causing very serious or extremely serious consequences as stipulated in point c of Clause 2 of Article 181c of the Penal Code means causing material damage to investors with an amount from three billion dong or more.

In addition to causing material damage, the criminal act may also cause non-material consequences such as: affecting the implementation of State policies and laws on the securities market; eroding investor confidence in the securities market; affecting the fairness, transparency, openness, and safety of the securities market.

In these cases, it must be evaluated based on specific circumstances to determine the level of consequences caused by the crime: serious, very serious, or extremely serious.

3. Obtaining significant illegal gains as stipulated in point b of Clause 2 of Article 181c of the Penal Code means obtaining a profit amounting from five hundred million dong or more from committing this criminal act.

Article 7. Effective Date

1. This Circular takes effect from August 15, 2013.

2. This Circular replaces Circular Joint No. 21/2004/TTLT-BCA-TANDTC-VKSTC-BTP dated November 23, 2004 of the Ministry of Public Security, Supreme People's Court, Supreme People's Procuracy, and Ministry of Justice guiding the prosecution of criminal responsibility for acts of buying, selling, and illegally using value-added tax invoices.

3. If the guidelines in this Circular reduce criminal liability compared to previous guidelines, they shall be applied during investigation, prosecution, first-instance trial, second-instance trial, supervisory trial, or retrial of persons who committed criminal acts before this Circular took effect.

4. In cases where the offender has been sentenced and the judgment has taken legal effect, these guidelines in this Circular Joint shall not be used to file a protest according to supervisory or retrial procedures except in cases where there are other grounds for filing a protest.

5. For cases currently being investigated, prosecuted, first-instance tried, second-instance tried, supervisory tried, or retried, if these guidelines in this Circular Joint are applied to declare exemption from criminal liability for the accused, the investigating agency, the prosecution office, and the court need to explain to the accused that the exemption from criminal liability according to the guidelines of this Circular does not serve as the basis for compensation for damages caused by authorized personnel of the investigative agencies.

6. During the implementation of this Circular Joint, if there are any difficulties or need for additional guidance and explanation, relevant agencies are requested to report to the Ministry of Justice, Ministry of Public Security, Supreme People's Court, Supreme People's Procuracy, and Ministry of Finance for timely guidance and explanation./.