Helpful Vietnamese legal approach to foreigners: Criminal liability, deportation, civil capacity

1. Criminal liability of foreign nationals in Vietnam

• Pursuant to Article 5 of the Penal Code of the Socialist Republic of Vietnam (2015):

Scope of the Penal Code regarding criminal acts committed within the territory of the Socialist Republic of Vietnam:

1. This Code shall apply to all criminal acts committed within the territory of Vietnam.

The same applies to criminal acts or the consequences thereof occurring on aircraft or seagoing vessels flying the Vietnamese flag, or within Vietnam’s exclusive economic zone and continental shelf.

2. Foreign nationals who commit criminal acts within the territory of Vietnam and who are entitled to diplomatic or consular immunity under Vietnamese law, international treaties to which Vietnam is a party, or customary international law, shall have their criminal liability resolved in accordanbyies or customs. Where such treaties or customs do not exist, the matter shall be resolved through diplomatic channels.

• Article 6 of the 2015 Penal Code further provides:

Scope of the Penal Code regarding criminal acts committed outside the territory of the Socialist Republic of Vietnam:

1. Vietnamese citizens and commercial legal entities established under Vietnamese law who commit crimes outside the territory of Vietnam, where such acts are classified as crimes under this Code, may be held criminally liable under this Code.

This provision also applies to stateless persons who reside permanently in Vietnam.

2. Foreign nationals or foreign commercial legal entities who commit crimes outside Vietnam may be subject to criminal liability under this Code if the offense infringes upon the lawful rights and interests of Vietnamese citizens, the interests of the State of the Socialist Republic of Vietnam, or if it is following treaties to which Vietnam is a party.

3. Where a criminal act or its consequences occur on a foreign-flagged aircraft or seagoing vessel in international waters or airspace beyond Vietnam’s territory, the perpetrator may be held criminally liable under this Code if an applicable treaty to which Vietnam is a party so provides.

Accordingly:

• Foreign nationals who commit crimes within Vietnamese territory and are entitled to diplomatic or consular immunity shall have their criminal liability addressed by applicable international treaties or international customs. If no such treaties or customs exist, the matter shall be resolved via diplomatic channels.
• Foreign nationals who commit offenses outside Vietnam may still be subject to criminal prosecution under Vietnamese law if the offense infringes upon the lawful rights and interests of Vietnamese citizens or the interests of the State, or if so provided for in applicable international treaties.

2. Deportation as a criminal penalty for foreign nationals

According to Article 37 of the 2015 Penal Code, deportation is a penalty whereby a convicted foreign national is compelled to leave the territory of the Socialist Republic of Vietnam.

Deportation may be imposed either as a principal penalty or as a supplementary penalty, depending on the circumstances of each case.

3. Civil legal capacity of foreign nationals in Vietnam

According to Article 673 of the 2015 Civil Code:

Civil legal capacity of individuals:

1. Civil legal capacity of individuals shall be determined under the laws of the country of which they are nationals.

2. Foreign nationals residing in Vietnam shall have the same civil legal capacity as Vietnamese citizens, unless otherwise provided by Vietnamese law.

Furthermore, Article 674 of the Civil Code provides:

Civil act capacity of individuals:

1. Civil act capacity of individuals shall be determined per the laws of the individual’s home country, except as provided in Clause 2 of this Article.

2. Where a foreign national establishes or performs civil transactions in Vietnam, their civil act capacity shall be determined under Vietnamese law.

3. Whether an individual has lost civil act capacity, has difficulty in perception or behavior control, or has limited civil act capacity shall be determined by Vietnamese law.

Conclusion:

Foreign nationals in Vietnam enjoy civil legal capacity equivalent to that of Vietnamese citizens, unless otherwise provided by Vietnamese law. Where a foreign national establishes or performs civil transactions in Vietnam, their civil act capacity shall be determined under  Vietnamese law.