In several countries, the competent authorities of asset recovery often prepare the request for legal cooperation quickly when they identify the need for international cooperation. However, to get the important information quickly and determine the procedures to follow, they often contact the foreign legal authority and the financial intelligence unit directly or collect the information from legal staff from the diplomatic missions in their country or in the region. Such support can help to quickly identify the asset, clarify the necessary assistance and more importantly, create a strong foundation for judicial support. The communication brings opportunities to understand the procedures and mechanisms of the foreign entity and evaluate strategic options. Unofficial communication needs to be approved by the central organization of the asset recovery officials to make sure there are no violations against the protocol with other entities or against the legal rules about foreign assistance.

Currently, the framework for international cooperation in recovering criminal assets is stipulated in several international legal documents. As the largest international organization, the United Nations has implemented many asset recovery and corruption prevention activities on a global scale by issuing international conventions against money laundering and corruption.

The United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 specified the issue of criminal asset recovery. In 2000, the UN ratified the Convention Against Transnational Organized Crime, which includes clauses about asset recovery. However, only until UNCAC was born, was the issue of corruption and asset recovery more comprehensively and adequately stipulated. It has been affirmed that international cooperation plays an important role in recovering assets which are distributed to foreign countries. Currently, the international community has signed several conventions and multilateral agreements to request member countries to cooperate with one another in investigating, providing evidence, applying temporary measures, recovering and returning the assets.

2. Vietnam’s law on international cooperation in criminal asset recovery

After the Law against money laundering was passed in 2018, the Government and State Bank quickly issued the instruction documents to implement the law. The decision, numbered 20/2013/QĐ-TTg dated April 18, 2013 by the Prime Minister stipulated the ceiling value of the transactions, which must be reported. This Decree, numbered 116/2013/NĐ-CP dated October 4, 2013 by the Government provides detailed instructions for implementing some articles in the Law against Money Laundering (Decree 116). Circular 35/2013/TT-NHNN dated December 31, 2013 instructed the implementation of some regulations against money laundering (Circular 35). Circular 31/2014/TT-NHNN dated November 11, 2014 revised and added some articles to Circular 35.

The system of legal documents against money laundering has stipulated a series of solutions to prevent money laundering, including articles and clauses, which directly involve corruption prevention and asset recovery. Article 13 of the Law Against Money Laundering is directed at politically influential figures. Article 33 of the Law Against Money Laundering and Article 22 of Decree 116 are about delaying transactions. Article 34 of the Law against money laundering and Article 23 of Decree 116 are about locking down accounts and sealing or seizing assets.

The regulations about preventing and detecting corrupted assets in Article 52 of UNCAC were localized in the Law Against Corruption and its instruction documents. The Law Against Corruption of 2005 states that “Corrupted assets must be recovered and taken back”( Article 4). The 2018 Law Against Corruption continues by saying that “Corrupted assets must be recovered, returned to legitimate owners or taken back by the rules of the law”(Clause 1, Article 94) and “The loss caused by the acts of corruption must be amended; people who commit the act of corruption must make up for the loss according to the rules of the law” (Clause 2, Article 94).

The Government Inspection cooperated with the State Bank to pass joint Circular 07/2015/TTLT-TTCP-NHNN dated November 25, 2015 to lock down the accounts of the subjects of inspection. The account is locked when the subjects of inspection show signs of dispersing their assets or do not comply with the request to hand over the money, assets in line with the decision to take back the money, assets by the government inspection body or state authority, which has the power to implement the inspection conclusions. This regulation of Vietnam’s law is compatible with Recommendation 4 by The Financial Action Task Force (FATF) (The organization to supervise global financial terrorism and money laundering was established in July 1989 at G7 Summit in Paris) and article 54 of UNCAC.

In addition, the regulations about asset recovery in criminal and civilian laws in Vietnam have been gradually modified and supplemented to meet the requirements of UNCAC. While the solutions for preventing and detecting corrupted assets of UNCAC were legally localized in a legal framework about corruption prevention and money laundering, the solutions for direct asset recovery and the UNCAC solutions in international cooperation in recovering the assets were localized with Vietnam’s regulations in the revised 2017 version of the Criminal Code 2015 and the Criminal Prosecution Law of 2015.

Article 949 of the 2015 Criminal Code specifies that the documents and materials which are collected by the foreign competent authority at the judicial request of Vietnam’s authority or the documents and materials which are sent from the foreign competent authority to Vietnam for criminal prosecution can be regarded as evidence. In case the documents and materials have the characteristics as specified by Article 89 of this law, they can be considered as material evidence. In addition, the 2015 Criminal Code also specifies the process of the reception and transfer of documents and materials, which are included in the case (Article 497) and the processing of corrupted assets (Article 507). These regulations create the important legal foundation to recover the assets by criminal prosecution and ensure compatibility with the international legal requirements in international cooperation for corrupted asset recovery.

Second, confiscation by administrative procedures.

According to Vietnam’s laws, the inspection and audit organizations have the authority to confiscate illegal assets by administrative decisions. If they discover corruption, they can conclude and recommend that competent authorities recover the corrupted assets. In some cases, the inspection and audit organizations can transfer the documents to the investigating organizations to proceed with methods of criminal prosecution.

Article 46 and Article 53 of the inspection laws stipulate that the head of the administrative and special inspection delegation have the authority to request the competent officials to temporarily hold the money and assets, request the credit organizations to lock down the accounts of the persons who are being inspected when they have enough evidence that the subjects of inspection are trying to disperse their assets.

Article 48 and Article 55 of the inspection laws stipulate that the officials who issued the administrative and special inspection decisions have the authority to request the credit organizations to lock down the accounts of the subjects of the inspection when they have sufficient evidence that the subjects of the inspections are dispersing their assets and failing to comply with the decision to confiscate the money and assets, which were taken, misused or lost because of the violations by the subjects of inspection.

In addition to the inspection organizations, the current law regulates that the state audit, made by the auditor general, has the right to request the audited organizations to amend and fix their violations. If the audited organizations fail to comply with the auditing decisions and recommendations, the auditor general has the authority to consider and take legal actions by virtue of Article 13 and Article 14 of the State’s audit law.

The 2018 law against corruption added new regulations about international cooperation in recovering corrupted assets under Article 92. It is stated that the Government Inspection, the Ministry of Foreign Affairs, the Ministry of Justice and other relevant state organizations have the responsibility to cooperate with the People’s Supreme Procuracy in the international cooperation of corrupted asset recovery. This is the legal foundation to initiate international cooperation in corrupted asset recovery with administrative decisions via inspection. This regulation has met the international standards in corrupted asset recovery with administrative withdrawal.

Third, direct asset recovery through international cooperation.

First, the application of necessary measures allows competent authorities to recognize the effectiveness of the confiscation order passed by the court of other member countries. These measures allow Vietnam’s court to recognize the effectiveness and the implementation of foreign orders, decisions and sentences as they are specified in the 2015 Civil Prosecution Law.

Article 423 of the 2015 Civil Prosecution Law stipulates the recognition and execution of sentences and decisions by foreign civil courts as well as the right to request recognition and execution of sentences by foreign courts in Vietnam, etc. Chapter 38 of the 2015 Civil Prosecution Law regulates the authority and procedures to solve civil cases with foreign involvement. Article 470 affirms the exclusive authority of Vietnam’s civil court in handling civil cases, which involves land and real estate in Vietnam. Therefore, the civil courts in Vietnam have the authority to process civil cases with regard to rights or ownership rights to assets in Vietnam’s territory and identify the legal events in Vietnam’s territory as well as handle and identify rights to the assets.

Vietnam’s civil courts also have the authority to recognize and implement effective sentences and decisions by foreign courts and carry out the civil entrustment by foreign courts. Asset processing in criminal cases is considered as a civil case and will be carried out as in a civil case. Therefore, Vietnam’s laws meet the requirements of Article 53 of UNCAC.

Second, this regulates the confiscation of assets when the criminal trial has not been conducted against the violators because this person has died, run away or fails to present at the court or in similar situations. Vietnam’s laws do not have specific regulations on the above issues and can only use civil prosecution law to handle the identification of rightful ownership or management. If the rightful ownership or management is not identified by the rules of civil law, the assets will be owned by the State of Vietnam and it will be confiscated and allocated to the public fund. Therefore, Vietnam’s laws meet this requirement of the Convention.

Fifth, special cooperation activities.

International cooperation in criminal prosecution is regulated in Part 8 of the 2015 Criminal Prosecution Law. Accordingly, judicial assistance in the criminal field can be implemented with binding regulations of the conventions that Vietnam has signed or participated in or which will be implemented on the basis of reciprocity and preserving the sovereignty, territory and security of Vietnam.

International cooperation in criminal prosecution includes judicial assistance for criminal investigation, extradition, reception and transfer of the people under the jail sentence and other international cooperation activities as they are stipulated in the 2015 Criminal Prosecution Law, the law about judicial assistance and international conventions of which Vietnam is a member. Vietnamese laws do not have specific regulations about the case transfer, the prosecution and trial or information about the criminal cases, which are related to corrupted assets as regulated in Article 53 of UNCAC. Vietnam can only do it on the principle of reciprocity in the regulation of its 2015 Criminal Prosecution Law. Therefore, Vietnam can partially meet the requirements for special cooperation.

Sixth, about deciding and returning the assets.

The principles for the withdrawal, confiscation and return of corrupted assets to the rightful owners or managers or the state fund were regulated in the 2015 civil law, the 2015 criminal code and the law against corruption.

Vietnam’s laws stipulate the return of assets to rightful owners or managers through the processing of criminal and civil cases of the court. Vietnamese laws require the verification and proof of the asset origin and asset valuation be it in the criminal prosecution process or the civil prosecution process. According to the above regulations of the Convention, the rightful owners or managers, who the assets will be returned to, must prove their rightful ownership or management of the assets before the suitable court of Vietnam.

International conventions on judicial assistance or international cooperation in the civil field that Vietnam signed or participated in contain regulations about reasonable cost control used in the process of investigation and the prosecution and trial with exception to specific cases that the two countries mutually agree on. Therefore, Vietnam’s laws basically meet the requirements for returning and deciding on the assets to be returned as defined by the Convention.