10/10/2016
On 27th November 2015, at the 10th meeting of the Việt Nam National Assembly Tenure XIII, National Assembly delegates endorsed the amended Penal Code (the Penal Code 2015). The Penal Code 2015 was the highest legal document, took effect on 1st July 2016.
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| The Penal Code 2015 has incorporated criminal responsibilities of legal entities on forest destruction |
Chapter XVII of the amended Penal Code 1999 (supplemented in 2009) consists of 11 articles (from Article 182 - 191a) regulating environmental crimes. The practical implementation of regulations has arisen many challenges and shortcomings which significantly affect the work on prevention and combat against environmental crimes, of which due to regulations on constituting a crime, such as regulations on constituting materials, are general and are difficult for applying; subjects of crimes are not regulated as legal entities.
The Penal Code 2015 consists of 26 chapters with 426 articles, with an increase of 2 chapters and 72 articles compared to the Penal Code 1999. Of which, Chapter XIX on environmental crime consists of 12 articles (from Article 235 - 246). To overcome shortcomings relating to environmental crimes in general and biodiversity in particular, the Penal Code 2015 has significant amendments such as on constituting environmental crimes; addition of two new crimes; expansion of application scopes and penalty levels; regulations on criminal responsibility of legal entities for some environmental crimes.
Some new points on environmental crimes
Amending the constitution of biodiversity crimes towards specifying behaviors and quantitatively regulating violation levels to ensure feasibilities and conditions for agencies to conduct the prosecution. In addition, the Penal Code 2015 has added two new crimes which are violations of regulations on protection of irrigation works and dyke safety and prevention of disasters and violations of regulations on river bank protection (Article 238).
Due to the severity of environmental crimes and the main objectives of violation behaviors are about economic benefits, the application scope of the penalty is expanded, the penalty level is higher to ensure deterrence against violation behaviors. This is also one of important points of the amended Penal Code.
Expanding the application scope of the penalty level: The penalty level is regulated in the Penal Code 2015 in the aggravation frame of some crimes such as causing environmental pollution; violation of regulations on prevention, response and rehabilitation of environment incidents; bringing wastes into Vietnam’s territory; violation of regulations on protection of fauna in the list of endangered and rare species prioritized for protection.
Increasing the penalty level in different provisions: Provisions are adjusted towards increasing the penalty level against violation behaviors; the penalty is regulated to be very high, appropriate with the danger nature and the level of violation behaviors.
Some amendments on environmental crimes relating to biodiversity
Crime to transmit dangerous disease to fauna and flora (Article 241): This incorporates the behavior “to allow to bring inside and outside the area that is under transportation restriction of fauna, flora, flora and fauna products or other products that are infected with diseases or infection factors” and clearly regulates the subject of this crime to be the authorized personnel.
Crime to destroy fishery resources (Article 242): To prevent the status of fishery resources destruction, there are basic adjustments in sanctions. The maximum penalty at Clause 1 is tripled, from 100 million VND to 300 million VND, non-custodial reform up to three years, or imprisonment from six months to three years. The penalty in aggravation scale for individuals is up to 400 million VND. The maximum prison penalty also increases from five years to ten years.
Provisions also regulate criminal responsibilities of entities; accordingly, criminal legal entities regulated in Clause 1, Article 242 will be penalized at a higher amount from one to three times of that applied for individuals; if crimes fall under cases regulated in Clause 2, Article 242 the penalty is about three to five times of that applied for individuals or license use rights are temporarily deprived or operation is terminated from six months to three years. In addition, entities are also prohibited from commercial activities and from operating in some particular areas from one to three years or from mobilizing funds from 1 to 3 years.
Crime to destroy forests (Article 243): The crime forming which is generally regulated at Article 189 of the Penal Code 2009 as “individuals that conduct illegal forest burning, destruction or have other forest destroying behaviors which cause serious impacts”, “destroy a specially large area of forests” has been replaced with quantitative regulations such as: destruction of vegetation not yet classified as a forest or natural regeneration forest with an area from to 30,000 m2 - 50,000 m2; production forest with an area from 5,000 m2 - 10,000 m2; protection forest with an area from 3,000 m2 - 7,000 m2; special use forest with an area from 1,000 m2 - 3,000 m2, crimes relating to endangered, rare, prioritized for protection flora species and other flora species in group 1A.
Article 243 of the Penal Code 2015 also regulates criminal responsibility of entities for these crimes; accordingly, violated entities will be penalized with an amount which is a few times higher compared to that of individuals. Imprisonment is from one to five years; three to seven years; seven to fifteen years. In addition, they are deprived of license use rights temporarily or cease of operation from six months to three years; deprived of license use rights permanently or cease of operation permanently. Entities are also prohibited from commercial activities, operating in some particular areas from one to five years or from mobilizing funds from one to three years.
Violation of regulations on protection of fauna in the list of rare, endangered and prioritized for protection species (Article 244): The Penal Code 2015 regulates details of the aggravation scale for “transboundary trade and transport”, “illegal goods of high number or high illegal income” in order to strictly regulate and address violation cases. At the same time, it adds and specifies the level and scale of penalties against violations on management and protection of fauna in the list of endangered, rare and prioritized for protection species; endangered, rare species of group 1B or Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES Convention). Clause 3 also regulates illegal trade and transport of fauna or body parts of fauna in the list of endangered, rare prioritized for protection species in one of following cases: illegal goods of very high number or special high number; very high and special high illegal income or causing very serious or special serious impacts. Penalties regulated in Clause 3 are strictly regulated, from 10 to 15 years in prison.
Regulations also consist of criminal responsibilities of entities for behaviors of illegal transport and trade of fauna species and body parts of fauna species in the list of endangered, rare, prioritized for protection species with sanctions from one billion to 15 billion VND, temporary deprivation of license use rights or temporary cease of operation from one to three years, permanent deprivation of license use rights or permanent cease of operation. In addition, entities are prohibited from commercial activities or operating in some particular areas from one to three years or from mobilizing funds from one to three years.
Violation of regulations on management of protected areas (Article 245): Similarly to Article 243, Article 245 also replaces general regulations by specific regulations such as damages on properties from 50 million to 200 million VND; from 200 million VND and higher… The highest penalty is up to one billion VND. Depending on the level of violations, there are different sanctions: three levels of imprisonment: six months to three years; three years to seven years, temporary deprivation of license use rights or cease of operation from six months to three years, permanent deprivation of license use rights or permanent cease of operation. In addition, entities can also be prohibited from commercial activities, operating in some particular areas from one to five years or mobilizing funds from one to three years.
Crime to import and spread invasive alien species (Article 246): Article 246 of the Penal Code 2015 regulates specific violation behaviors such as “illegal import of known invasive alien fauna and flora species or potential invasive alien fauna and flora species if the violation exhibits worth more than 250 million VND or if the violation exhibits worth less than 250 million VND but the behavior was previously administratively penalized”, “spread of known invasive alien fauna and flora species or alien fauna and flora species that threaten to cause serious impacts”. Article 246 differentiates in policies addressing import behavior and spread of invasive alien species, according to which spread behavior is only subject to criminal penalty if consequences are found. The penalty level is between 100 million VND to one billion VND; the highest imprisonment is from three years to seven years.
The Penal Code 2015 has many new contents, of which amending and adding environmental crimes towards specifying violation behaviors, regulating strict sanctions against environment crimes. The Penal Code 2015 also regulates commercial entities to be subject to criminal responsibilities for nine environmental pollution crimes and destroying fauna and flora species which cause serious impacts to biodiversity and ecological balance. With appropriate and practical amendements and addition, the Penal Code 2015 will be a useful tool contributing to enforce crimes on environment and biodiversity.
MSc. Mai Hồng Quân
MSc. Trần Trọng Anh Tuấn
Vietnam Environment Administration
