Is Criminalisation of Civil and Economic Infringement a Solution?

The fact that entrepreneurs get imprisoned is not a new problem anymore. Especially in recent times, through the media and press, many large and small economic cases related to imprisonment have been continuously made public. The term “criminalization” also appears more frequently. The question is: Are civil and economic infringements being “criminalized” more and more? The criminalization solution is being selected to settle economic and civil transactions?

To a certain extent, businesses and individuals who are doing business, when making mistakes, must be penalised based on the provisions of law depending on the level. If the violations are only to be handled according to civil and economic relations, but in fact being criminalized, and the business owner is arrested, the operation of the business is affected and damage is not only to the enterprise. This situation is also a concern of many people and businesses. They feel confused and unsafe. Does the “criminalization” mindset raise an alarm bell?

The Government’s position is not to criminalize economic and civil relations. “Our intention is not to criminalize economic civil relations but whoever violates the laws must be penalized, in order to protect and encourage the people who do the right thing, genuine and efficient business” was the statement of Prime Minister Pham Minh Chinh during the Conference on Developing a Safe, Healthy and Sustainable Real Estate Market on the afternoon of July 14, 2022. Does this directive make people and businesses feel more confident?

What is criminalization?

Criminalization is a term used in criminology to refer to the process of turning the behavior of an individual/organization that does not violate the criminal law into a “criminal” (i.e. behavior that is dangerous to society) that, according to the criminal law, must be criminally handled) and the individual/organization that commits such act becomes the “criminal”. In simpler words, similar to the way we understand some phrases such as industrialization, socialization, concretization.., when we say criminalization, we will imagine that it is: a problem of nature. not like or not like criminal, but in a way it is being directed towards criminal nature.

Criminalization is the job of the legislature, and only the legislature has the power to enact criminal laws.

The State makes laws in order to put all human acts and behaviors in order, stabilize, maintain and preserve the general social order. The law also has different sanctions for violations.

When it comes to criminalizing a type of act, it should be understood that that type of behavior was not previously prohibited by law or, even though it is prohibited, the socially dangerous nature of the act is still considered to be insufficient that a heavy sanction should be applied. Nowadays, when the social situation changes, the level of danger of that same behavior to society has increased, so the State’s attitude towards that type of behavior must be adjusted and sanction must be applied more strictly. That’s when the criminalization was put in place and carried out.

In practice, the concept of criminalization is applied to indicate that a judicial authority, at the investigation stage, attributes an act established from civil and economic transactions that do not constitute a crime into a criminal act and prosecutes that act.

How is the criminalization of civil and economic transactions understood?

In recent years, when economic transformation has taken place more and more strongly. The criminalization of civil and economic transactions is a phenomenon that has received special attention.

Criminalizing civil and economic transactions can easily be a mistake in the application of criminal law, a form of wrongful injustice to innocent people. This mistake can be intentional or unintentional. Mistakes may be due to the fact that the procedural authorities have not investigated fully, objectively, impatiently while solving the issues, or also due to some corruptive officials in the procedural agencies intentionally criminalize them for personal gain. The content of this error is a breach of a civil obligation or an obligation arising from an economic contract (mainly the obligation to pay and return property) that does not constitute a crime but has been initiated, prosecuted, investigated, and adjudicated according to criminal law and criminal procedure.

The above understanding of the criminalization of civil and economic transactions also implies that the criminalization of civil and economic transactions is the unlawful interference of the procedural authorities in the normal course of action. of civil and economic transactions, thereby infringing upon civil and economic relations. It is reflected in the fact that the procedure-conducting agency has prosecuted, investigated and prosecuted (i.e., applied criminal law, applied criminal procedure law) even for acts that have not yet amount to a crime (not yet constitutes a crime specified in the Penal Code).

Some problems arise from the criminalization of civil and economic transactions

Many wrongful convictions for criminalization. It is necessary to prosecute and arrest wrongful businessmen if they commit criminal acts. But if the wrongdoing, which should only be handled according to economic laws, is criminalized, and the business owner is arrested, the operation of the business is ceased or damage is not only the enterprise. Famous wrongdoings such as the arrest of the owner of the Hello Coffee shop must be remembered by everyone. These businessmen, after years and months in prison, were finally released for reasons such as the case was suspended, the prosecuting agency was unable to bring charges over their commercial disputes. If in the course of carrying out executive and judicial activities, the law relationship is wrongly applied, civil and economic relations become criminal relations, handlimg violators of civil and economic obligations by criminal sanctions, this is a mistake in the application of the law, leading to wrongdoing.

Criminalization is like a double-edged sword. On the one hand, it helps the fight against crime to be carried out in a multi-directional way, contributing to prevent and suppress crime, maintaining order and peace. On the other hand, it causes difficulties in applying the law to the authorities.

Is there a lack of understanding and abuse of power by the authorities when deliberately criminalizing the case? The similarity of all criminalized cases is public frustration due to the incomprehensive, unreasonable and unpopular handling ways of the authorities. Some people on official duty take advantage of their power to borrow the law to do “cowardice”. Going back to the incident that happened at Hello Café, Mr. Nguyen Van Tan, the owner of the restaurant, was prosecuted before the law for illegal business conduct, here, all details related to the case are given not so complicated, but it was the officials assigned to investigate and prosecute the case who deliberately made the case more serious, when continuously, intensively checking and making minutes of this facility from the moment it came into operation to create a basis for “having known that the acts are administrative violations but still violated them” as a basis for criminal handling. While, in terms of the nature of the case, Mr. Tan’s normal business activities could not turn into dangerous acts for society, so as soon as the prosecution agencies carried out the prosecution, there were many problems, including controversial opinions from the public about signs of abuse of power… Later in the case, when the superior competent authorities looked back at all the files, the involved people were disciplined, so what is the crux of the case? Are investigators and prosecutors a key players in the wrongdoing of the case? Is the case complicated or is the understanding of the ministries involved in the proceedings limited?

There are many consequences that the criminalization of economic and civil relations have caused by, for instance, some people performing official duties for the group or personal financial benefits. This destroys the credibility and reputation of the procedural agencies.

Phobias and fears of individuals and businesses. In business activities, whether large or small, almost every business has to borrow capital for production and business. But when the debt is not paid, many cases are attributed to fraud to appropriate property and get prosecuted in court. This is the phenomenon of criminalizing civil and economic relations, causing wrongful convictions, the fear of individuals and businesses when the boundary between civil and criminal in many economic cases is quite ambiguous.

Usually, the act of not returning capital and interest is only a breach of the contract and subject to material sanctions under the contract such as application of overdue interest, penalty for breach of contract, handling of collateral for debt recovery, etc. in case the debt is still not recovered, the credit institution may request the Court to settle, including the request for bankruptcy declaration according to the enterprise bankruptcy law…

The phenomenon of abuse of criminal law and criminal proceedings in the settlement of bank credit disputes usually manifests in the following cases: When the debt is due, the borrower fails to pay the debt to the bank, upon banks’ request, the investigative agency shall carry out the procedures to prosecute, arrest, investigate and interrogate according to Articles 139 of the Penal Code Crime – Abuse of trust to appropriate property or Articles 140 of the Penal Code Crime – Crime of fraud to appropriate property.

It can be seen that the criminalization of economic and civil relations is like a ghost haunting businesses, the fear of criminalizing economic behavior makes entrepreneurs always live in an uncertain mood when having to borrow money to do business. After these cases, people and businesses feel bewildered and unsafe. If we continue to attribute criminal crimes to civil and economic relations as an optimal solution to recover capital, it will not only cause wrongful convictions, but also make Vietnam’s investment and business environment suffer from loosing many opportunities.

It is important that businesses operate in a transparent, convenient, secure and safe environment where they feel equal, trust, and secure in their production and business. How to make the specter of criminalization no longer an obsession with businesses? The answer is for the authorities!

Above are some knowledge about the criminalization of civil and economic transactions to share with you. Please contact us for more detailed instructions: info@letranlaw.com