Thông tư liên tịch 10/2013/TTLT-BTP-BCA-TANDTC-VKSNDTC-BTC

JOINT CIRCULAR

ON GUIDING APPLICATION OF A NUMBER OF ARTICLES OF CRIMINAL CODE ON CRIMES IN TAX, FINANCE AND SECURITIES

In order to correctly and consistently apply regulations of the Criminal Code on crimes in tax, finance-accounting and securities, the Ministry of Justice, the Ministry of Public Security, the Supreme People's Court , the Supreme People's Procuracy, and the Ministry of Finance make uniform guidelines as follows:

Article 1. Tax evasion (Article 161 of Criminal Code)

1. Offender of tax evasion is person conducts one of acts specified in Article 108 of Law on tax administration, concurrently satisfy signs specified in Article 161 of the Criminal Code.

2. Committing tax evasion in other particularly serious circumstances specified in Clause 3 Article 161 of the Criminal Code is construed that cases in despite of the evaded tax amount has value of between 300 million dong and less than 600 million dong, but the offender concurrently conduct one of other concerned acts but not so serious to be examined for penal liability on a independent crime, such as: offering bribes; resisting persons in the performance of their official duties; inflicting injury on persons in the performance of their official duties; destroying property of tax administration agencies, tax administration civil servants and other state agencies with responsibilities in tax administration execution. If these acts fully consist of elements of another crime, apart from tax evasion, the offender is also examined for penal liability on corresponding crimes.

Article 2. Illegal printing, distribution and trading of invoices and receipts of state budget remittances (Article 164a of the Criminal Code)

1. Invoices and receipts of state budget remittances include:

a) Export invoices used in business and export operation of goods and services abroad, in non-tariff zones; added value invoices; invoices of domestic goods sale and service provision for organizations, individuals declaring value-added tax; other invoices include: Stamps, tickets, cards, receipts of premium, and receipts of air-freight charge; receipts of international transport charges; receipts of bank service charges;

b) Order of state budget payment, paper of remittance to the State budget, table of tax payment, receipt of state budget and recovered vouchers in state budget revenue management.

2. Subjects of this crime include:

a) Individuals who sale goods and provide services or persons of organizations which do business of goods sale and service provision;

b) Persons of organizations which receive printing or ordering printing of invoices;

c) Individuals or persons of organizations which buy goods, services.

3. Acts specified in Article 164a of the Criminal Code are construed as follows:

a) Illegally printing invoices, receipts of state budget remittances is acts of self-printing invoices or self- generating e-invoices when not be eligible or with incorrect or insufficient content in accordance with law; printing false invoices or generating false e-invoices;

b) Illegally distributing invoices, receipts of state budget remittances is acts of making notification of issuance with insufficient content; failing to send or list the notification of invoice issuance in accordance with regulation;

c) Illegally trading invoices, receipts of state budget remittances includes the following acts:

c1.) Trading the invoices without content or with insufficient or incorrect content as prescribed;

c.2) Trading the invoices which are filled content, but there is no goods or service enclosed;

c.3) Trading counterfeit invoices, invoices not yet had use value, invoices expired use value, invoices of other business and service establishments to legalize the bought goods and services or to issue for clients upon selling goods, services;

c.4) Trading, using invoices with difference of value of goods, services between invoice originals.

4. Invoices, receipts of state budget remittances with a very large or particularly large quantity is construed as follows:

a) Quantity of invoices, receipts of state budget remittances in form of blank prints (not filling value) of from 50 numbers to less than 100 numbers is considered as large quantity; quantity of from 100 numbers or more is considered as very large or particularly large quantity.

b) Quantity of invoices, receipts of state budget remittances filled in with content aiming to conduct unlawful acts of between 10 numbers and less than 30 numbers is considered as large quantity; from 30 numbers or more is considered as very large or particularly large quantity.

5. Gaining big illicit profits means gaining profits valued at of 100 million dong or more from conducting offenses mentioned above.

6. Causing serious consequences means case of causing damage for state budget valued at of 100 million dong or more.

Article 3. Breaching regulations on preservation and management of invoices and receipts of state budget remittances (Article 164b of the Criminal Code)

1. Subjects of this offense are:

a) Persons who trade goods or provide services;

b) Responsible persons of organizations trading goods or providing services;

c) Responsible persons of organizations which order the printing or receive printing of invoices.

2. Acts breaching regulations on preservation, management of invoices and receipts of state budget remittances include:

a) Storing, preserving invoices in contravention of regulations;

b) Failing to report or report inaccuracy content on using, payment and finalization of invoice use;

c) Damaging, losing invoices;

d) Implementing destruction of invoices in contravention of law regulations.

e) Handling the loss, burn, defect of invoices in contravention of law regulations.

3. Causing serious consequence means cases of causing damage to state budget valued at of between 100 million dong and less than 500 million dong.

4. Causing very serious and special serious consequence mean cases of causing damage to state budget valued at of 500 million dong or more.

Article 4. Intentionally disclosing false information or concealing truths in securities activities (Article 181a of the Criminal Code)

1. Interpretation of terms:

a) Offering securities specified in Article 181a of the Criminal Code includes the public offering of securities and separate offering of securities.

The public offering of securities means the offering of securities under methods: Through means of mass media, including Internet; offering securities to 100 investors or more, excluded professional securities investors; offering securities to a undefined investor quantity;

Separate offering of securities means an organization’s offering securities to less than one hundred investors, excluded professional securities investors and not using means of mass media or Internet;

b) Securities listing means putting securities eligible into transaction at the Stock Exchange (SE);

c) Securities depository means depository receipt, preservation, transfer of securities at request of clients, help clients to execute rights related to securities owning;

d) Securities register means recording of ownership and other rights of persons owning securities.

e) Offsetting and payment means the final performance step to complete process of securities transaction.

2. Acts specified in Clause 1 Article 181a of the Criminal Code are construed as follows:

a) Intentionally disclosing false information in securities activities means case where offenders disclose false information related to activities of public companies, issuance organizations, listing organizations, transaction register, securities companies, fund management companies, securities investment companies; disclose information inconsistently with information in dossiers of offering securities, dossiers of listing registration, securities transaction, dossiers of grant, supplementation of establishment and operation permit of enterprise types operating in securities field, dossiers of register, depository, offsetting and payment of securities;

b) Concealing truths in securities activities means case where offenders fail to disclose or intentionally disclose insufficient information in dossiers of offering securities, dossiers of listing registration, securities transaction registration, dossiers of grant, supplementation of the establishment and operation permit of enterprise types operating in securities field; dossiers of register, depository, offsetting and payment of securities.

3. Subjects of this offense are one of the following objects:

a) Chairmen of Board of Directors, Member assembly or Chairmen of companies, Directors or General Directors, finance Director or Chief accountant or issuance organizations, listing organizations, organizations registering transaction, companies of securities investment fund management, companies of securities investment;

b) Legal representative of issuance advisory organizations , issuance guarantee organizations, audit organizations approved, persons directly advising issuance, listing the issuance guarantee, auditing the financial statements, persons authorized for information disclosure;

c) Legal representative of organizations of registration, securities depository;

d) Other persons who maybe accomplices of this offense.

4. Some circumstances as elements of determining the aggravate penalty bracket specified in Article 181a of the Criminal Code are construed as follows:

a) Causing serious consequence means case causing material damage to investors with an amount of between 01 billion dong and less than 03 billion dong;

b) Causing very serious or special serious consequence means case causing material damage to investors of 03 billion dong or more.

Apart from causing consequences being material damages, offenses may cause non-material damages such as: Affecting to implementation of policies, law of state involving securities market; causing disbelief of investors for securities market; affecting to justice, transparence, publicity and safety of securities market.

In these cases, it is required to depend on each specific case so as to assess seriousness type of consequences caused by offenses: serious, very serious or special serious.

c) Gaining big illicit profits means gaining profits valued at of 500 million dong or more from conducting acts of offenses mentioned above.

Article 5. Using insider information for securities trading (Article 181b of the Criminal Code)

1. Interpretation of terms:

a) Insider information specified in Article 181b of the Criminal Code means information related to operation of public companies or public funds not yet been disclosed, able to affect securities prices of those public companies or public funds.

b) Public companies are join-stock companies belonging to one of three types as follows: Companies already executed public offering of stocks; companies with stocks listed at the Stock Exchange (SE) or Securities trading center (SDC); companies with stocks owned by at least one hundred investors, excluded professional securities investors and with charter capital contributed of ten billion Vietnam dong or more.

c) Public fund means a securities investment fund which performs public offering of fund certificates.

2. Acts of using insider information for trading securities include:

a) Using insider information to trade securities for themselves;

b) Using insider information to trade securities for others;

c) Revealing insider information or advising others to trade securities on the basis of insider information.

3. Subjects of this offense are one of the following objects:

a) Members of Board of Directors, Control Board, Directors or General Directors, Deputy Directors or Deputy General Directors, Financial Directors, Chiefs accountant of public companies; members of Representative Board of public fund;

b) Major shareholders of public companies, public funds;

c) Persons who audit financial statements of public company, public fund;

d) Persons practicing securities of securities companies, companies of securities investment fund management;

e) Persons of organizations or individuals who have relationship of business cooperation or service provision with public companies, public funds and individuals working in those organizations;

g) Individuals who directly or indirectly attain insider information from objects guided in points a, b, c, d and e of this Clause.

4. Some circumstances as elements of determining the aggravate penalty bracket specified in Article 181b of the Criminal Code are construed as follows:

a) Gaining big illicit profits means gaining a profit valued at between 500 million dong and less than 1.5 billion dong from conducting offenses;

b) Gaining very big or special big illicit profits means gaining a profit valued at 1.5 billion dong or more from conducting offenses mentioned above;

c) Causing serious consequences means case of causing material damages to investors with amount of 01 billion dong or more;

Apart from causing consequences being material damages, offenses may cause non-material damages such as Affecting to implementation of policies, law of state involving securities market; causing disbelief of investors for securities market; affecting to justice, transparence, publicity and safety of securities market. In these cases, it is required to depend on each specific case so as to assess seriousness type of consequences caused by offenses: serious, very serious or special serious.

Article 6. Manipulating securities prices (Article 181c of the Criminal Code)

1. Causing serious consequences specified in Clause 1 Article 181c of the Criminal Code means case of causing material damages to investors with amount of between 01 billion dong and less than 03 billion dong;

2. Causing very serious or special serious consequences specified in point c Clause 2 Article 181c of the Criminal Code means case of causing material damages to investors with amount of 03 billion dong or more.

Apart from causing consequences being material damages, offenses may cause non-material damages such as: Affecting to implementation of policies, law of state involving securities market; causing disbelief of investors for securities market; affecting to justice, transparence, publicity and safety of securities market.

In these cases, it is required to depend on each specific case so as to assess seriousness type of consequences caused by offenses: serious, very serious or special serious.

3. Gaining big illicit profits specified in point b Clause 2 Article 181c of the Criminal Code means case of gaining a profit valued at 500 million dong or more from conducting this offense.

Article 7. Effect

1. This Joint Circular takes effect on August 15, 2013.

2. This Joint Circular replaces the Joint Circular No. 21/2004/ TTLT-BCA- TANDTC-VKSTC-BTP dated 23/11/2004 of the Ministry of Public Security, the Supreme People’s Court, the Supreme People’s Procuracy and the Ministry of Justice, guiding on penal liability examination for acts of illegally trading or using added value invoices.

3. Guides in this Joint Circular in case of mitigating penal liability in comparison with the previous guides will be applied to investigation, prosecution, adjudication trial, appellate review, supervisory trial or re-trial for persons conducted acts of offense before the effective date of this Circular.

4. In case where the offenders have been sentenced and the judgments have taken effect, guides in this Joint Circular are not applied to appeal under the cassation or re-trial procedures unless there are other grounds for appeal.

5. For cases of investigation, prosecution, adjudication trial, appellate review, supervisory trial or re-trial being applied the guides in this Joint Circular in order to declare exemption from penal liability for accused and defendants, investigation agencies, People’s Procuracy, Courts should explain with accused and defendants for information which case of exemption from penal liability according to guides of this Circular is not grounds of compensation for damages caused by competent persons of procedure-conducting agencies.

6. During the course of implementation of this Joint Circular, if there are problems or need to be guided, explained additionally, suggest concerned agencies to reflect to the Ministry of Justice, the Ministry of Public Security, the Supreme People’s Court, the Supreme People’s Procuracy or Ministry of Finance for timely explanation and guide.