What does the Corruption Perceptions Index (“CPI“) published annually by Transparency International, tell us about Vietnam? Vietnam’s CPI score has improved over time, from a score of 24 in 2002 to 39 in 2021 (ranked 87 among 180 countries). The score is at best modest, but the steady improvement is noteworthy. Even so, corruption in Vietnam remains serious and the number of large corruption prosecutions and the level of punishment have increased–notably involving very high-ranking government and Party officials.
Our discussion will revolve around gift-giving, hospitality and entertainment of public officials in Vietnam. When we refer to “gift-giving”, we often mean to include providing hospitality or entertainment.
Gift-giving, Hospitality and Entertainment of Public Officials
At its most basic level, gift-giving establishes, enhances or re-confirms a person-to-person connection. It is often used to express thanks or to affirm a friendship. The giver neither requires nor expects action or inaction or reciprocation by the recipient. She is simply performing a social ritual. However, in some situations, the act implies or expresses an intention, and the intention is to establish a binding obligation by the recipient. A gift, then, can be intended as a bribe–an act which anticipates a favor in return.
Gift-giving may take the form of a tangible gift, eg, money, something of value, or it may be less direct, eg, entertainment or hospitality. In this latter form the giver may arrange parties, trips, events, or other forms of entertainment and hospitality for a target or a person close to the target. All can be considered a form of bribery.
The Penal Codeone
Under the Penal Code, a bribe occurs when a person directly or indirectly gives/receives or will give/receive any pecuniary or non-pecuniary benefit (in favor of that or another person) to establish improper influence over the recipient, and the recipient is expected to or not to do an act to favor the bribe giver or another person designated by the bribe giver. It is illegal (and may be criminal) to bribe either a public official or a private person (say, a corporate official). The intention of the gift is important because it determines whether a crime has been committed. Intention is not easy to prove and often the evidence is circumstantial and indirect. Gift-giving is criminal only if (i) by the gift, the giver seeks to establish improper influence over the recipient and seeks to cause the recipient, or a person acting on behalf of the recipient, to act or not to act in favor of the giver or a designated person, and (ii) the gift meets the criminal threshold under the Penal Code (which will be discussed below). It is irrelevant, of course, that the public official has the inherent authority to act (eg, perform or forego an act), and even when the required action on its face is legal or appropriate. For example, a company official may give a gift to a public official to persuade her to grant a license which she is authorized to grant and even if grant of the license follows the law.
Again, gift-giving does not, itself, constitute a criminal act. To be a bribe, there must be an intention improperly to influence the official’s decision. And if the bribe’s value exceeds the criminal threshold (ie, VND2,000,000 for pecuniary gifts, but there is no threshold for non-pecuniary gifts), the gift-giving is considered to be a criminal bribe. The purpose of the bribe may be implicit or explicit. In practice, it is often implicit. The purpose is usually hidden but the act is understood by both giver and recipient. Sometimes, payment of a bribe can be proven circumstantially. For example, a display of wealth with no obvious source. But third parties may be recipients on behalf of the official. Proving bribery, obviously, is extremely difficult.
The Law on Anti-Corruption2
The Law on Anti-Corruption is much more inclusive, and intent is not relevant. It prescribes, for example, that a public official must not directly or indirectly receive a gift in any form from any person related to a task in which that public official is involved or from anyone who is under the managing authority of that public official. That means a public official may not receive a gift from a person if the gift giver is involved in a matter that is before that public official. The Law on Anti-Corruption does not require an intention to bribe. In case the public official is unable to refuse the gift3the public official may receive the gift but must take certain steps:
- Cash gift: the gift must be transferred to the state budget;
- non-cash but tangible gift: the gift must be publicly sold and the proceeds transferred to the state budget;
- Entertainment and hospitality: the target may not accept them;
- Gift which is hard to preserve (eg, food): the head of recipient’s authority must dispose of the gift.
These regulations leave no room for interpretation, and overcome the difficulty under the Penal Code, to prove that a gift carries an intention to bribe. They also recognize that an official’s judgement may be compromised even by small gifts, and even if given openly. In some countries, there are strict rules that govern acceptance of a gift [maximum amounts, hospitality (say, lunch or
dinner), nominal gifts, etc.] Vietnam resolves the issue by simply prohibiting any gift. However, again, the prohibition applies only if the gift is from a person involved in a process that involves the public official. This means that a public official may receive a gift if the giver is not then engaged in any public work/process which involves that public official (even though the giver might have been involved in the past or will be in the future).
In general, Vietnamese law does not prohibit giving a gift to a public official, unless the giver, at that time, is dealing with the official is an official matter. But in reality much gift-giving is done without a specific intention. A person may not have an immediate issue before a particular government official, but she knows it is likely that in the future she will have an issue. For such reason, often public officials will refuse any gift even if the gift seems legitimate on its face.
- If the state successfully shows that a gift, entertainment or hospitality received by a public official is a bribe (as defined in the Penal Code)–that is there is an intention to establish an improper influence–then the gift-giving is an offense under both the Penal Code and the Law on Anti-Corruption. If the value is VND2,000,000 (approx. US$90) or above, or regardless of value in the case of non-pecuniary bribes, the bribe giver will face criminal liability of up to 20-years imprisonment. If the value (only applicable to pecuniary bribes) is below VND2,000,000, the bribe giver will face administrative penalties which can vary.
- If the gift is not proven to be a bribe, then the gift giver has no liability (of course, the public official is required to refuse the gift under the Law on Anti-Corruption).
gift recipient: A public official who receives a tangible gift contrary to the Law on Anti-Corruption, faces disciplinary/administrative sanctions. She can face criminal liability under the Penal Code (if the gift is proven to be a bribe and the value is VND2,000,000 or above, or even if value is irrelevant as in the case of a non-pecuniary bribe). Punishment can be life imprisonment or death under the Penal Code depending on the nature and the seriousness of the crime.
Take Away Notes
- Under the Penal code, gift-giving of a public official is not a bribe unless the gift-giving was intended to establish “improper influence” over the recipient in favor of the bribe giver. A bribe giver/recipient can face administrative or criminal penalties depending on the circumstances of the bribe.
- Under the Law on Anti-Corruption, receiving, whether directly or indirectly, a gift from a person involved in an issue in which that public official is involved or from persons under the managing authority of that public official, is not allowed, regardless of the intention. There is an apparent exception that permits a public official to receive a gift if the gift-giving is clearly not related to a task in which that public official is involved. A public official may accept a gift if she is unable to refuse it (but the gift must be dealt with as discussed). Of course, the gift may not be a bribe. If there is no intention to bribe, the giver has no criminal nor administrative liability, but the recipient (as a public official) may be administratively liable if she does not follow the Law on Anti-Corruption to dispose of the gift.
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This article appeared in the IHC Magazine on 2 June 2022.
1. Penal Code no. 100/2015/QH13 dated 27 November 2015 of the National Assembly of Vietnam (as amended, supplemented in 2017).
2. Law on Anti-Corruption no. dated 36/2018/QH14 20 November 2018 of the National Assembly of Vietnam.
3. Oddly, the Law on Anti-Corruption and its implementing documents are silent on the definition of “unable to refuse”.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.