THE COUNCIL OF
JUDGES
THE SUPREME PEOPLE’S COURT
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THE SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.
02/2019/NQ-HDTP
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Hanoi, January
11, 2019
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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
CHIEF JUSTICE
Nguyen Hoa Binh