Joint Circular No. 11/TTLN provides guidance on handling certain types of criminal offenses.

JOINT CIRCULAR

The Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Interior, and the Ministry of Justice

provide guidance on handling certain types of criminal offenses.

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In order to effectively combat certain types of criminal offenses, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Interior, and the Ministry of Justice have agreed to provide guidance on the following issues:

1. Regarding the illegal importation and sale of foreign cigarettes.

In dealing with acts of illegally importing and selling foreign cigarettes, the general guidelines set forth in Circular Joint No. 08/TTLN dated September 18, 1990, of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Interior, and the Ministry of Justice shall still be applied. However, due to new requirements, the following points are now unified as follows:

a) For cases where individuals illegally import and sell foreign cigarettes for the first time with quantities under 500 packs (each pack containing 20 cigarettes), such acts will not be considered criminal offenses but must be subject to administrative penalties.

b) For cases where individuals illegally import and sell foreign cigarettes with quantities of 500 packs or more, or less than 500 packs but have previously been administratively penalized and continue to violate, repeatedly commit, act frequently, organize, operate professionally, or accompany such acts with resistance against law enforcement when discovered or punished, then depending on specific circumstances, criminal responsibility may be pursued for the crime of smuggling across borders (Article 97 of the Criminal Code), the crime of illegally transporting goods across borders (Article 97 of the Criminal Code), the crime of selling prohibited items (Article 166 of the Criminal Code), or the crime of profiteering (Article 165 of the Criminal Code if it falls under the circumstances specified in Point 5 of Circular Joint No. 08/TTLN dated September 18, 1990).

c) For cases where individuals illegally import and sell foreign cigarettes with quantities from 1,500 packs to less than 4,500 packs, such acts must be considered criminal offenses involving "a large quantity of contraband items" or "a large quantity of contraband goods" (Clause 2 of Articles 97, 165, and 166 of the Criminal Code); if the quantity of contraband goods is 4,500 packs or more, such acts must be considered criminal offenses in "particularly serious circumstances" (Clause 3 of Articles 97, 165, and 166 of the Criminal Code).

d) In all cases, contraband cigarettes must be confiscated and disposed of according to general regulations.

Point 1 of this Circular replaces Point 6 of Circular No. 08/TTLN dated September 18, 1990.

2. Regarding the illegal trade in colored metals (copper, lead, aluminum, nickel).

In dealing with acts of illegally trading in colored metals, the following points should be noted:

a) Currently, colored metals are considered goods that require conditional business operations, and only organizations and individuals permitted by the State can engage in such business activities.

b) All cases of trading in colored metals in border provinces, as well as in areas without borders with other countries, aimed at illegally exporting them across borders, are considered smuggling across borders.

c) For cases of smuggling colored metals across borders with quantities under 50 kilograms, such acts will not be considered criminal offenses but must be subject to administrative penalties.

d) For cases of smuggling colored metals across borders with quantities of 50 kilograms or more, or less than 50 kilograms but having previously been administratively penalized and continuing to violate, repeatedly commit, act frequently, organize, operate professionally, or accompany such acts with resistance against law enforcement when discovered or punished, criminal responsibility shall be pursued for the crime of smuggling across borders according to Article 97 of the Criminal Code.

e) For cases of smuggling colored metals across borders with quantities from 150 kilograms to less than 450 kilograms, such acts must be considered criminal offenses involving "a large quantity of contraband items" (Clause 2 of Article 97 of the Criminal Code); if the quantity of contraband goods is 450 kilograms or more, such acts must be considered criminal offenses in "particularly serious circumstances" (Clause 3 of Article 97 of the Criminal Code).

f) For cases of trading in colored metals not aimed at illegally exporting them across borders, such acts will not be considered smuggling across borders and shall be handled as follows:

- If trading in electrical wires, communication cables, etc., obtained through criminal means, such acts shall be handled as the crime of receiving stolen property according to Article 201 of the Criminal Code.

- If engaging in illegal trading in colored metals not obtained through criminal means, such acts shall be handled as the crime of illegal business operations according to Article 168 of the Criminal Code.

During the investigation, prosecution, and trial of acts of smuggling colored metals across borders, judicial organs must pay attention to identifying those who destroy electrical wires, communication cables, important national security facilities, military equipment, or other socialist assets to obtain colored metals.

g) For cases where individuals destroy electrical wires, communication cables, or other important national security facilities, military equipment, or other socialist assets to obtain colored metals with the aim of illegally exporting them across borders, depending on specific circumstances, they may be handled as the crime of destroying important national security facilities (Article 94 of the Criminal Code), the crime of destroying military equipment (Article 269 of the Criminal Code), or the crime of damaging or intentionally destroying socialist property (Article 138 of the Criminal Code), and additional charges for smuggling across borders may be added if there is the intent to illegally export them across borders; if there is no such intent, additional charges for smuggling across borders will not be added.

3. Regarding the illegal trade in foreign currencies.

According to Directive No. 330-CT dated September 13, 1990, of the Chairman of the Council of Ministers, since September 13, 1990, foreign exchange management has been transferred to the State Bank of Vietnam; private individuals and other economic entities are not allowed to trade in foreign currencies; therefore, trading in foreign currencies must be treated as trading in prohibited items and handled as follows:

a) For cases where individuals sell foreign currency legally and purchase foreign currency to use for purchasing goods, such acts will not be considered criminal offenses but must be subject to administrative penalties.

b) For cases of trading in foreign currencies, selling foreign currency illegally, or purchasing foreign currency to use for purchasing goods to make illicit profits, such acts must be treated as trading in prohibited items and handled with either administrative penalties or criminal prosecution, specifically:

- In cases where foreign currency, which is contraband, is sold for the first time with a value under three million Vietnamese dong, it shall not be considered a crime but shall be subject to administrative penalties.

- In cases where foreign currency, which is contraband, is sold with a value of three million Vietnamese dong or more, or less than three million Vietnamese dong but has been previously administratively penalized and continues to violate, repeats the offense, commits multiple times, is organized, or has a professional nature, criminal responsibility shall be pursued for the crime of selling contraband goods pursuant to Article 166 of the Criminal Code.

- In cases where foreign currency, which is contraband, is sold with a value from nine million Vietnamese dong to less than twenty-seven million Vietnamese dong, it shall be considered a crime in the case of "large quantities of illegal goods" (Clause 2, Article 166 of the Criminal Code).

- In cases where foreign currency, which is contraband, is sold with a value of twenty-seven million Vietnamese dong or more, it shall be considered a crime in the case of "particularly serious circumstances" (Clause 3, Article 166 of the Criminal Code).

4. Regarding tax evasion

a) According to Article 169 of the Criminal Code, tax evasion involving large amounts or continuing to violate after being administratively penalized constitutes the crime of tax evasion. Therefore, individuals or private organizations evading taxes equivalent to the value of five tons of rice or more will be criminally prosecuted; if below this amount, criminal prosecution will only occur if there has been prior administrative punishment and repeated offenses.

b) Tax evasion involving very large amounts (Clause 2, Article 169 of the Criminal Code) refers to tax evasion equivalent to the value of fifteen tons of rice or more.

c) In cases where tax evasion involves an amount equivalent to less than fifteen tons of rice, but accompanied by other criminal acts related to tax evasion (for example: bribery, resisting public officials...), it shall be considered a crime in the case of "particularly serious circumstances" (Clause 2, Article 169 of the Criminal Code).

* The italicized part has been replaced according to Circular Joint No. 06 dated September 20, 1996 of the Supreme People's Court, the Supreme People's Procuracy, the Ministry of Home Affairs, and the Ministry of Justice.

5. Regarding speculation

a) At present, in cases of speculation involving goods equivalent to the value of less than five tons of rice, it shall not be considered a crime but shall be subject to administrative penalties.

b) In cases of speculation involving goods equivalent to the value of five tons of rice or more, or less than five tons of rice but repeated offenses, committed multiple times, organized, having a professional nature, taking advantage of positions or powers, using the name of state agencies or social organizations, exploiting natural disasters or war, criminal responsibility shall be pursued for the crime of speculation pursuant to Article 165 of the Criminal Code.

c) In cases of speculation involving goods equivalent to the value of from fifteen tons of rice to less than forty-five tons of rice, it shall be considered a crime in the case of "large quantities or high value of illegal goods" (Clause 2, Article 165 of the Criminal Code).

d) In cases of speculation involving goods equivalent to the value of forty-five tons of rice or more, it shall be considered a crime in the case of "particularly serious circumstances" (Clause 3, Article 165 of the Criminal Code).

đ) Due to the ban on importing and circulating foreign cigarettes in the domestic market, there is now speculation on domestic cigarettes. In cases of illegally trading domestic cigarettes with quantities specified in points b, c, and d above, criminal responsibility shall be pursued for the crime of speculation according to the corresponding clauses of Article 165 of the Criminal Code.

In cases of illegally trading domestic cigarettes with a value equivalent to less than five tons of rice and not falling under the cases specified in point b, criminal responsibility shall be pursued for the crime of illegally trading cigarettes (Article 183 of the Criminal Code) or administrative penalties shall be imposed depending on specific circumstances (based on the nature and degree of danger to society of the criminal act and the background of the person committing the act).

6. Regarding smuggling across borders of narcotic drugs

In cases where narcotic drugs are produced, stored, bought, or sold with the aim of illegally exporting across borders, criminal responsibility shall be pursued for the crimes of producing, buying, and storing narcotic drugs (Article 96a of the Criminal Code) and smuggling across borders (Article 97 of the Criminal Code); if there is also illegal exit from the country, additional criminal responsibility shall be pursued for the crime of illegal exit (Article 89 of the Criminal Code).

7. Regarding the handling of transportation vehicles used in the buying and selling, transporting of narcotic drugs, smuggling across borders, speculation, buying and selling of contraband goods, and consumption of property obtained through criminal activities.

According to Article 33 of the Criminal Code, the court may confiscate objects and money used in the commission of crimes. In accordance with the spirit of Directive No. 308-CT dated November 10, 1990 of the Chairman of the Council of Ministers on some policies and measures to strengthen anti-smuggling efforts, certain types of transportation vehicles used in smuggling across borders may be confiscated, and if not confiscated, fines may be imposed.

Regarding this issue, the following should be noted:

- All privately-owned transportation vehicles of individuals, private organizations, or economic organizations regardless of their ownership structure, if used by their owners for buying and selling, transporting narcotic drugs, smuggling across borders, speculation, buying and selling of contraband goods, and consumption of property obtained through criminal activities, shall be confiscated according to Article 33 of the Criminal Code.

- Transportation vehicles of state agencies without business functions or social organizations, if used by their owners for the aforementioned crimes, may also be confiscated, except for large vehicles such as airplanes, trains, ships, and combat equipment of armed forces units. If confiscation is not possible, fines shall be imposed according to the relevant provisions of the Criminal Code.

8. For those who commit the crimes mentioned in this Circular, if they engage in bribery, resistance to public officials... at the time of discovery or handling, additional criminal responsibility may be pursued depending on the specific circumstances.

9. To effectively contribute to combating the types of crimes mentioned in this Circular, the judicial organs must pay attention to the following: In cases where the perpetrator is discovered with contraband, it is necessary to act promptly in all stages (initiation of prosecution, investigation, prosecution, trial) to resolve cases in the shortest time possible. It is essential to thoroughly understand and strictly implement the provisions of the Criminal Procedure Code, as well as the inter-ministerial and intra-ministerial guidelines on the application of criminal law and criminal procedure to avoid unnecessarily prolonging the investigation, prosecution, and trial periods.