THE COUNCIL OF JUDGES | THE SOCIALIST REPUBLIC OF VIETNAM |
No. 02/2019/NQ-HDTP | Hanoi, January 11, 2019 |
RESOLUTION
ON GUIDELINES FOR APPLICATION OF ARTICLE 150 CONCERNING HUMAN TRAFFICKING AND ARTICLE 151 CONCERNING TRAFFICKING OF A PERSON UNDER 16 OF THE CRIMINAL CODE
THE COUNCIL OF JUDGES OF THE SUPREME PEOPLE’S COURT
Pursuant to the Law on Organization of People’s Court dated November 24, 2014;
For the proper and consistent application of Article 150 concerning human trafficking and Article 151 concerning trafficking of a person under 16 of the Criminal Code;
With reference to opinions of the Chief Procurator of the Supreme People’s Procuracy and the Minister of Justice.
HEREBY RESOLVES:
Chapter I
GENERAL GUIDELINES
Article 1. Scope
This Resolution provides guidelines for application of Article 150 concerning human trafficking and Article 151 concerning trafficking of a person under 16 of the Criminal Code.
Article 2. Factors in determining crime
1. “human trafficking” means that any person who uses violence, threatens to use violence, deceives or employs other tricks commits any of the following acts:
a) Transferring human people for receipt of money, property or other financial interests;
b) Receiving human people for transfer of money, property or other financial interests;
c) Transferring human people for sexual slavery, coercive labor, taking body parts or for other inhuman purposes;
d) Receiving human people for sexual slavery, coercive labor, taking body parts or for other inhuman purposes;
dd) Recruiting, transporting, harboring other people for the commission of any of the acts specified in Point a and Point c of this Clause.
2. “trafficking of a person under 16” means that a person commits any of the following acts:
a) Transferring a person under 16 for receipt of money, property or other financial interests, except for humanitarian purposes;
a) Receiving a person under 16 for transfer of money, property or other financial interests, except for humanitarian purposes;
c) Transferring a person under 16 for sexual slavery, coercive labor, taking body parts or for other inhuman purposes;
d) Receiving a person under 16 for sexual slavery, coercive labor, taking body parts or for other inhuman purposes;
dd) Recruiting, transporting, harboring a person under 16 for the commission of any of the acts specified in Point a and Point c of this Clause.
3. “other tricks” specified in Clause 1 Article 160 of the Criminal Code include the following: kidnapping; giving victims sleeping pills, anesthetic drugs, alcohol, beer or other strong stimulants that cause victims to lose their awareness and control behavior; poisoning victims; taking advantage of marriage brokerage and brokerage to send workers abroad; abuse of power or position in performance of official duties; taking advantage of the situation that the victim is dependent; taking advantage of the victim’s vulnerability or great difficulties (for example: misusing the situation that a victim's relative suffering from a fatal disease needs money immediately for medical treatment, otherwise he/she will lose his/her life) to commit any of the acts specified in Clause 1 hereof.
4. “for sexual slavery” specified in Point b Clause 1 Article 150 and Point b Clause 1 Article 151 of the Criminal Code means transferring, receiving or recruiting, transporting, harboring victims to transfer to other for sexual slavery (such as forcing victims into prostitution, taking victims to brothels for prostitution, using victims to produce pornographic publications, for porn performance or sexual slavery, etc.) or receiving victims to serve their own sexual needs.
5. “for coercive labor” specified in Point b Clause 1 Article 150 and Point b Clause 1 Article 151 of the Criminal Code means that a person uses violence or threats to use violence or employs other tricks to force victims to work against their will.
6. “for taking body parts of victims” specified in Point b Clause 1 Article 150 and Point b Clause 1 Article 151 of the Criminal Code means transferring, receiving or recruiting, transporting, harboring victims to transfer for taking body parts of victims.
Body part is a part of the body which is made up of different types of tissue to perform certain physiological functions of humans.
For example: Nguyen Van A transferred Nguyen Thi C to Nguyen Van B to get the cornea of C (in fact, B did not take the cornea of C).
7. “for other inhuman purposes” specified in Point b Clause 1 Article 150 and Point b Clause 1 Article 151 of the Criminal Code means using victims for experiment, forcing victims to beg or using victims for other cruel purposes.
Article 3. Factors in determining sentence bracket
1. “organized crime” specified in Point a Clause 2 Article 150 and Point a Clause 3 Article 151 of the Criminal Code means a form of complicity in which the accomplices cooperate closely and assign their determined roles in committing the crime.
2. “because of despicable motives” specified in Point b Clause 2 Article 150 and Point g Clause 2 Article 151 of the Criminal Code means that the offender commits an offense for retaliation; the offender commits an offense to avoid responsibility; the offender commits an offense against the person he/she is indebted to or commits other offenses representing faithlessness and treachery.
For example: Nguyen Van A takes Nguyen Thi C (A's lover) to sell to others after knowing that C is pregnant by him.
3. “taking victim out of the Socialist Republic of Vietnam’s territory” specified in Point d Clause 2 Article 150 and Point dd Clause 2 Article 151 of the Criminal Code means that the offender took or is taking a victim out of national border on land, sea, air and underground of the Socialist Republic of Vietnam. It is also considered to take the victim out of the Socialist Republic of Vietnam’s territory if the offender has carried out exit procedures for the victim.
4. “committing offense more than once” specified in Point e Clause 2 Article 150 and Point e Clause 2 Article 151 of the Criminal Code means that the offender has committed human trafficking or trafficking of a person under 16 02 times or more but he/she has not been liable to criminal prosecution and the prescriptive period for criminal prosecution has not been expired.
For example: On June 15, 2018, Nguyen Van A committed human trafficking. On July 20, 2018, A committed human trafficking again and was arrested. For both offenses, Nguyen Van A has not been prosecuted for criminal liability for human trafficking. In this case, Nguyen Van A is prosecuted for his offense of trafficking in accordance with Point e Clause 2 Article 150 of the Criminal Code.
5. “in a professional manner” specified in Point a Clause 3 Article 150 and Point b Clause 3 Article 151 of the Criminal Code means the offender has committed human trafficking or trafficking of a person under 16 5 times or more (regardless of whether he/she has been prosecuted for criminal liability or not, if the prescriptive period for criminal prosecution has not expired or his/her conviction has not been expunged) and the offender takes illegal gain from human trafficking or trafficking of a person under 16 as the main income.
6. “taking body parts of victim” specified in Point b Clause 3 Article 150 and Point d Clause 3 Article 151 of the Criminal Code means that the offender committed human trafficking or trafficking of a person under 16, and then took away the victim’s body parts.
For example: Nguyen Van A sold Nguyen Thi C to Nguyen Van B. B took cornea from C.
Chapter II
CRIMINAL PROSECUTION IN SOME SPECIFIC CASES
Article 4. Criminal prosecution in case of using tricks of marriage brokerage to foreigners
1. A person who uses tricks of marriage brokerage to foreigners shall be liable to criminal prosecution for human trafficking as prescribed in Article 150 of the Criminal Code if his/her acts fall under any of the following cases:
a) Coercing, threatening, or deceiving to force a person to marry a foreigner and transferring that person to the foreigner for receipt of money, property or other financial interests;
b) Coercing, threatening, or deceiving to force a person to marry a foreigner and transferring that person to the foreigner for sexual slavery, coercive labor, taking body parts or for other inhuman purposes;
c) Take advantage of the trick of marriage brokerage to foreigners to recruit, transport, harbor other people to transfer them to foreigners for sexual slavery, coercive labor, taking body parts or for other inhuman purposes.
2. In case the broker knows that the foreigner only see a prospective bride (or groom) or get married to cover his/her hidden purpose that is to take the chosen person abroad for sexual slavery, coercive labor, taking body parts of the victim, selling the victim to others or for other inhuman purposes, but the broker still carry out acts of brokerage to receive money or other material benefits from the foreigner, such broker shall be liable to criminal prosecution for human trafficking as prescribed in Article 150 of the Criminal Code.
Article 5. Criminal prosecution in case of using tricks of sending workers abroad
1. A person who uses tricks of sending workers abroad shall be liable to criminal prosecution for human trafficking as prescribed in Article 150 of the Criminal Code if his/her acts fall under any of the following cases:
a) He/she knows that the worker (16 or older) to be sent abroad will face sexual slavery, coercive labor, taking body parts of the victim, selling the victim to others or for other inhuman purposes, but he/she still deceives or force the worker and transfer the worker to the foreign party to receive money or other financial interests;
b) He/she transfers the worker (16 or older) to the foreign party to sell such worker to others;
c) He/she recruits, transports, harbors a worker (16 or older) to transfer such worker to the foreign party for sexual slavery, coercive labor, taking body parts or for other inhuman purposes.
2. A person who uses the trick of brokerage to send workers abroad for fraud and abuse of trust to appropriate property (such as: appropriating money received from workers and fleeing, not sending workers abroad) shall not be liable to criminal prosecution for human trafficking, but as the case may be, may be liable to criminal prosecution for obtaining property by fraud or abuse of trust to appropriate property.
3. A person who organizes or coerces others to stay abroad not for the purpose of sexual slavery, coercive labor, taking body parts or other inhuman purposes shall not be liable to criminal prosecution for human trafficking, but as the case may be, may be liable to criminal prosecution for organizing, broking illegal emigration or coercing illegal emigration.
Article 6. Criminal prosecution in case of taking body parts of victims
1. The offender who took a body part which is definitely vital for the victim’s life (for example: heart, liver, etc.), resulting in the victim’s death shall be liable to criminal prosecution for murder as prescribed in Point h Clause 1 Article 123 of the Criminal Code.
2. The offender who took a body part of victim but not under the case of Clause 1 of this Article shall be liable to criminal prosecution for human trafficking as prescribed in Point b Clause 3 Article 150 of the Criminal Code. In this case, if the victim suffers from injuries, health damage, mental or behavioral disorder that accounts for at least 61% of WPI or the victim dies due to infection or the victim commits suicide, the offender shall also be liable to criminal prosecution as prescribed in Point c and Point d Clause 3 Article 150 of the Criminal Code.
Article 7. Criminal prosecution in case of using tricks of adoption brokerage
1. A person who uses tricks of brokerage of adopting a child under 16 shall be liable to criminal prosecution for trafficking of a person under 16 as prescribed in Article 151 of the Criminal Code if his/her acts fall under any of the following cases:
a) He/she knows that the adopter intends to adopt a child under 16 for sexual slavery, coercive labor, taking and selling body parts or for other inhuman purposes but he/she still transfer the victim to receive money, property or other financial interests;
c) He/she takes advantage of adoption to receive an adopted child under 16 for sexual slavery, coercive labor, taking body parts or for other inhuman purposes;
c) He/she abuses power or position in performance of official duties to receive money, property or other financial interests to broke adoption of a child under 16 illegally or facilitate the brokerage of illegal adoption although he/she knows that the adopter adopts the child for sexual slavery, coercive labor, taking body parts, or for other inhuman purposes.
2. c) If he/she abuses power or position in performance of official duties to receive money, property or other financial interests to broke illegal adoption or facilitate the brokerage of illegal adoption but he/she does not know that the adopter adopts the child for sexual slavery, coercive labor, taking body parts, or for other inhuman purposes, then he/she shall not be liable to criminal prosecution for trafficking of a person under 16, but as the case may be, may be liable to criminal prosecution for equivalent offense in the Criminal Code.
3. A person who knows other persons really wanting to adopt a child (due to infertility or love for children) has brokered for this person to adopt a child whose parents, due to family circumstances, want to let him/her to be adopted receive a sum of money as brokerage fee. This is the case for humanitarian purpose, so the broker, the parents of the child, and the adopter shall not be liable to criminal prosecution for trafficking of a person under 16.
Article 8. Criminal prosecution in case of many offenses
While committing human trafficking or trafficking of a person under 16, if the offender also commits other offenses, apart from the criminal prosecution for human trafficking or trafficking of a person under 16, he/she shall be also liable to the corresponding offenses in accordance with the Criminal Code.
For example: Nguyen Van A bought Nguyen Thi C for sale. In the process of bringing C to sell, A has beaten C causing injuries with WPI of 30%. In this case, A shall be liable to criminal prosecution for human trafficking and deliberate infliction of bodily harm.
Chapter III
IMPLEMENTATION
Article 9. Entry in force
This Resolution is passed by the Council of Judges of the Supreme People’s Court on January 11, 2019 and comes into force as of March 15, 2019.
| ON BEHALF OF THE COUNCIL OF JUDGES |