THE COUNCIL OF
JUSTICES
THE SUPREME PEOPLE’S COURT
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THE SOCIALIST
REPUBLIC OF VIET NAM
Independence-Freedom-Happiness
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No.
04/2024/NQ-HDTP
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Hanoi, June 12,
2024
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RESOLUTION
PROVIDING GUIDELINES
FOR APPLICATION OF SOME REGULATIONS OF CRIMINAL CODE ON CRIMINAL PROSECUTION
FOR ILLEGAL FISHING, TRADING AND TRANSPORT OF FISHERY PRODUCTS
THE COUNCIL OF JUSTICES OF THE SUPREME PEOPLE’S COURT
Pursuant to the Law on Organization of People’s
Courts dated November 24, 2014;
For the purpose of exact and consistent
application of some regulations of Criminal Code No. 100/2015/QH13, as amended
by the Law on 12/2017/QH14, on criminal prosecution for illegal fishing,
trading and transport of fishery products;
After getting opinions from the Director of the
People’s Supreme Procuracy and the Minister of Justice of Vietnam;
HEREIN RESOLVES:
Article 1. Scope
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Article 2. Definitions
For the purpose of this Resolution, the terms below
shall be construed as follows:
1. “illegal fishing” means the conduct of
one or some of the illegal fishing activities specified in clause 1 Article 60
of the Law on Fisheries, including:
a) Carrying out commercial fishing without
obtaining a valid license;
b) Carrying out commercial fishing in no-take
zones, or within period during which fishing activities are banned; catching
and transporting aquatic species banned from commercial fishing; catching of
undersized fish; engaging in banned fishing occupations or using banned fishing
gears;
c) Carrying out illegal fishing of aquatic
specifies included in the List of endangered, rare and precious aquatic species;
d) Carrying out illegal fishing outside the
territorial waters of Vietnam;
dd) Carrying out commercial fishing in excess of
the granted fishing quota of each species; failing to carry out commercial
fishing within the areas and period specified in the granted license;
e) Concealing, forging or destroying evidences of
violations against regulations on fishing and protection of aquatic resources;
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h) Carrying out transshipment or assisting fishing
vessels which are found to have carried out illegal fishing, except force
majeure events;
i) Failing to provide or insufficiently providing communication
equipment and vessel tracking units (VTUs) for fishing vessels or failing to
operate such equipment and VTUs as prescribed;
k) Failing to possess a valid certificate of
fulfillment of food safety conditions as prescribed;
l) Carrying out temporary import for re-export,
temporary export for re-import, or transit through the territory of Vietnam of
fish and fishery products originating from illegal fishing;
m) Failing to fill in, recording incorrect or
inadequate information, or failing to submit fishing logbook, or failing to
submit reports as prescribed;
n) Carrying out unauthorized fishing in
international waters under the jurisdiction of a Regional fisheries management
organization using vessels without nationality or those flying the flag of a
State that is not a member of this organization;
o) Using fishing vessels for carrying out
commercial fishing against regulations on fishing and protection of aquatic
resources in international waters beyond the jurisdiction of Regional fisheries
management organizations.
2. “fishing vessels” include vessels used
for catching aquatic resources and vessels used for providing logistics
services for commercial fishing as prescribed in clause 20 Article 3 of the Law
on Fisheries, and other vessels, as prescribed in clause 1 Article 4 of the
Maritime Code, used for carrying out commercial fishing activities.
3. “outside the territorial waters of Vietnam” means
territorial waters which are considered neither the territorial waters of
Vietnam as prescribed in clause 1 Article 3 of the Law of the Sea of Vietnam
nor any other territorial waters in which Vietnam is entitled to catch aquatic
resources in accordance with the Law on Fisheries.
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In case the person who has the supreme command on a
fishing vessel has failed to carry out procedures for exit of his fishing
vessel, crew members and fishermen as prescribed, or has finished exit
procedures as prescribed but has erased or removed the fishing vessel’s
registration number after exiting Vietnam, or has written a fishing vessel’s
registration number other than the one issued by competent authorities to
facilitate his crew members and fishermen’s illegal fishing outside the
territorial waters of Vietnam, he shall face criminal prosecution for offenses
against regulations of law on immigration as prescribed in Article 347 of the
Criminal Code, if there are sufficient constituent elements of a crime.
Article 4. Criminal prosecution for organizing
or brokering entry or exit to bring fishing vessels and fishermen to carry out
illegal fishing outside territorial waters of Vietnam
1. Any person organizing or brokering others’ exit
or entry to bring fishing vessels and fishermen to carry out illegal fishing
outside the territorial waters of Vietnam in one of the following circumstances
shall face criminal prosecution for organizing or brokering illegal exit or
entry as prescribed in Article 348 of the Criminal Code, if there are
sufficient constituent elements of a crime:
a) Failing to carry out exit or entry procedures as
prescribed;
b) Carrying out exit or entry procedures for
carrying out commercial fishing in areas other than the ones licensed or
approved by competent authorities, or using expired fishing license.
2. Organizing others’ exit or entry to bring
fishing vessels and fishermen to carry out illegal fishing outside the
territorial waters of Vietnam prescribed in clause 1 of this Article means
the act of arranging, directing or operating humans or vehicles to bring
fishing vessels and fishermen to carry out illegal fishing outside the
territorial waters of Vietnam in one of the following circumstances:
a) Commanding, assigning or directing others not to
carry out exit procedures as prescribed or to carry out exit procedures as
prescribed but erase or remove the fishing vessel’s registration number or to
write a fishing vessel’s registration number other than the one issued by a
competent authority;
b) Commanding, assigning or directing others to
bring fishing vessels and fishermen to carry out illegal fishing outside the
territorial waters of Vietnam;
c) Commanding, assigning or directing others to use
fishing vessels without nationality or those flying the flag of a State that is
not a member of any Regional fisheries management organization;
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dd) Preparing or providing fishing vessels;
providing financial support or logistics services such as money, foods,
foodstuffs, fishing gears and tools, and other conditions for fishermen to
carry out illegal fishing outside the territorial waters of Vietnam;
e) Employing and bring fishermen to carry out
illegal fishing outside the territorial waters of Vietnam;
g) Performing other activities to bring fishing
vessels and fishermen to carry out illegal fishing outside the territorial
waters of Vietnam.
3. Brokering others’ exit or entry to bring
fishing vessels and fishermen to carry out illegal fishing outside the
territorial waters of Vietnam prescribed in clause 1 of this Article means
an individual’s acting as an intermediary to assist or prepare the performance
of one or several acts mentioned in clause 2 of this Article for the purpose of
receiving either tangible or intangible benefits.
4. Any person organizing or brokering bringing of
fishing vessels and fishermen to carry out illegal fishing outside the
territorial waters of Vietnam while clearly knowing that these fishermen will
illegally emigrate or stay in foreign countries shall face criminal prosecution
for organizing or brokering illegal emigration or stay in foreign countries as
prescribed in Article 349 of the Criminal Code, if there are sufficient
constituent elements of a crime.
5. Any person who directs, arranges or orders
fishermen not to follow exit procedures and to perform one or several fishing
activities specified in points a, b, c, d, dd, n and o clause 1 Article 2 of
this Resolution shall, in addition to the criminal prosecution for organizing
illegal exit as prescribed in Article 348 of the Criminal Code, also face
criminal prosecution for destruction of aquatic resources as prescribed in
Article 242 or for offenses against regulations on protection of endangered,
rare and precious aquatic species as prescribed in Article 244 of the Criminal
Code, if there are sufficient constituent elements of a crime.
Article 5. Criminal prosecution for commercial
fishing against regulations on protection of aquatic resources
1. Any person who carries out commercial fishing in
contravention of regulations on protection of aquatic resources shall face
criminal prosecution for destruction of aquatic resources as prescribed in
Article 242 of the Criminal Code, if there are sufficient constituent elements
of a crime.
2. Banned fishing equipment and gears prescribed
in point a clause 1 Article 242 of the Criminal Code are those prescribed in
Appendix II enclosed with the Circular No. 01/2022/TT-BNNPTNT dated January 18,
2022 of the Minister of Agriculture and Rural Development of Vietnam providing
amendments to some Circulars on fisheries.
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4. Commercial fishing in temporarily banned
areas prescribed in point b clause 1 Article 242 of the Criminal Code means
the act of carrying out commercial fishing in those areas prescribed in Appendix
III enclosed with the Circular No. 01/2022/TT-BNNPTNT dated January 18, 2022 of
the Minister of Agriculture and Rural Development of Vietnam providing
amendments to some Circulars on fisheries.
5. Catching aquatic species banned from fishing prescribed
in point c clause 1 Article 242 of the Criminal Code means catching the aquatic
species in Group I of Appendix II enclosed with the Government’s Decree No.
37/2024/ND-CP dated April 04, 2024 providing amendments to the Government’s
Decree No. 26/2019/ND-CP dated March 08, 2019 elaborating the Law on Fisheries.
Catching of aquatic species in Group II of Appendix
II enclosed with the Government’s Decree No. 37/2024/ND-CP dated April 04, 2024
providing amendments to the Government’s Decree No. 26/2019/ND-CP dated March
08, 2019 elaborating the Law on Fisheries shall also be considered as catching
of aquatic species banned from fishing if catching conditions are not
satisfied.
6. Destroying the habitat of aquatic species prescribed
in point d clause 1 Article 242 of the Criminal Code means deteriorating or
causing harm to or loss of habitat, aquatic ecosystems, areas where juvenile
fish lives or migration pathways of the aquatic species include in the List of
endangered, rare and precious species that need prioritized protection.
Article 6. Criminal prosecution for catching,
trading and transport of endangered, rare and precious aquatic species
Any person who carries out catching, trading and/or
transport of aquatic species in the List of endangered, rare and precious
species that need prioritized protection as prescribed in Article 37 of the Law
on Biodiversity or in Appendix I of the Convention on International Trade
in Endangered Species of Wild Fauna and Flora (CITES) shall face criminal
prosecution for offenses against regulations on protection of endangered, rare
and precious aquatic species as prescribed in Article 244 of the Criminal Code,
if there are sufficient constituent elements of a crime.
Article 7. Criminal prosecution against
foreigners bringing fishing vessels to carry out illegal fishing in territorial
waters of Vietnam
1. Any foreigner who operates a fishing vessel to
carry out commercial fishing in the territorial waters of Vietnam without
following entry procedures as prescribed shall face criminal prosecution for
offenses against regulations of law on immigration as prescribed in Article 347
of the Criminal Code, if there are sufficient constituent elements of a crime.
2. In case a foreigner operates a fishing vessel to
legally enter the territorial waters of Vietnam but carries out illegal fishing
or commits another violation against the criminal code, he/she shall face
criminal prosecution for the corresponding offense prescribed in the Criminal
Code and treaties to which Vietnam is a signatory, if there are sufficient
constituent elements of a crime.
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Any person who performs one of the following acts
to obstruct or disturb management and supervision ability of competent
authorities to carry out illegal fishing shall face criminal prosecution for
obstruction or disturbance of computer networks, telecommunications networks or
electronic devices prescribed in Article 287 of the Criminal Code, if there are
sufficient constituent elements of a crime.
1. Removing, storing and/or transporting 02 VTUs or
more of other fishing vessels;
2. Deleting, damaging or changing a software
program or electronic data or illegally obstructing the transmission of data or
disturbing operation of VTUs.
Article 9. Criminal prosecution for forging of
seals and documents of regulatory authorities or organizations; use of forged
seals or documents of regulatory authorities or organizations to carry out
illegal fishing, trading and/or transport of fishery products
1. Any person who violates regulations on
immigration, or organizes or brokers illegal exit from Vietnam, and forges the
seals or documents of other regulatory authorities or organizations or uses
such forged seals or documents to carry out illegal fishing, trading and/or
transport of fishery products shall, in addition to the criminal prosecution
for offenses against regulations of law on immigration as prescribed in Article
347 or for organizing or brokering illegal exit or entry as prescribed in
Article 348, also face criminal prosecution for forging of seals or documents
of regulatory authorities or organizations and use thereof as prescribed in
Article 341 of the Criminal Code, if there are sufficient constituent elements
of a crime.
2. The forged document prescribed in clause 1 of
this Article is one of the following forged documents:
a) Personal identity paper, passport,
laissez-passer, or another document valid for international travel;
b) Any document issued to a foreigner entering,
exiting or staying in Vietnam or ABTC card;
c) Any document included in the application for
registration of fishing vessel;
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dd) Health certificate or sanitary certificate;
e) License granted by a competent aquaculture
authority in respect of species included in the list of aquatic species subject
to conditional export or banned from export;
g) Any other document which is forged to legalize
the dossier on export of fishery products;
h) License or approval for commercial fishing;
i) Any other document used for facilitation of the
illegal fishing, trading and/or transport of fishery products.
Article 10. Criminal prosecution for smuggling
or illegal transport of fishery products, fraudulent acts performed while
buying or selling fishery products
1. Any person who trades fishery products across
the border or between a free trade zone and the domestic market without
obtaining a valid license for import or export of fishery products or against
the granted license shall face criminal prosecution for smuggling as prescribed
in Article 188 of the Criminal Code, if there are sufficient constituent
elements of a crime.
2. Any person who transports fishery products
across the border or between a free trade zone and the domestic market or
between a free trade zone and the territorial waters of Vietnam without
obtaining a valid license or against the granted license or without possessing
any documents proving the origin of the transported fishery products shall face
criminal prosecution for illegal transport of goods as prescribed in Article
189 of the Criminal Code, if there are sufficient constituent elements of a
crime.
3. Any person who performs fraudulent acts such as
legalization of documents or origin of fishery products originating from
illegal fishing for trading shall face criminal prosecution for deceiving
customers as prescribed in Article 198 of the Criminal Code, if there are
sufficient constituent elements of a crime.
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Article 11. Effect
1. This Resolution is ratified by the Council of
Justices of the Supreme People’s Court on June 12, 2024 and comes into force
from August 01, 2024.
2. If an offender has been tried before the
effective date of this Resolution according to previously promulgated
regulations and guidelines and a Court's effective sentence has been passed,
the Court’s judgment and ruling shall not be appealed according to this
Resolution through the reopening or cassation procedures.
ON BEHALF OF
THE COUNCIL OF JUSTICES
CHIEF JUSTICE
Nguyen Hoa Binh