Criminal prosecution of Hello cafe owner is illegal

The prosecution agency has wrongly prosecuted the owner of Xin Chao coffee shop due to misunderstanding and not thoroughly understanding the applicable law.

After Ho Chi Minh City Police informed the press about the case of Mr. Nguyen Van Tan, owner of Xin Chao restaurant, being criminally prosecuted for illegal business, we believe that there are still many incorrect understandings about the crime of illegal business -Dr. PHAN ANH TUAN, Head of Criminal Law Department, University of LawHo Chi Minh City.

What is a citation rule?

Article 159 of the 1999 Penal Code stipulates the crime of illegal business as follows: “Anyone who conducts business without a business registration, conducts business not in accordance with the registered content, or conducts business without a separate license in cases where the law requires a license in one of the following cases shall be subject to a fine of from 5 million VND to 50 million VND or to non-custodial reform for up to two years: a) Has been administratively sanctioned for this act…”.

In theory, Article 159 of the 1999 Penal Code is designed in the form of a cited provision. The characteristics of this type of cited provision are:

(1) To determine its content, we must refer to other legal documents. For example, to determine prohibited goods in the crime of trading in prohibited goods (Article 155 of the 1999 Penal Code), we must rely on the list of prohibited goods prescribed by the State in each period. Similarly, to determine what constitutes a violation of the regulations on controlling road vehicles in Article 202 of the 1999 Penal Code, we must rely on the violations prescribed in the Road Traffic Law.

(2) Although the provisions of the Penal Code remain unchanged, the cited legal documents may change, leading to the behavior considered a crime changing (expanding or narrowing the behavior considered a crime). For example: At one point, we stipulated that foreign cigarettes were not prohibited goods, then the act of trading in foreign cigarettes was not prosecuted for the crime of trading in prohibited goods. Later, we stipulated that foreign cigarettes were prohibited goods, then the act of trading in foreign cigarettes was considered trading in prohibited goods according to Article 155 of the 1999 Penal Code.

Illegal business: Must rely on Investment Law

As mentioned, the crime of illegal business is designed in the form of a reference regulation. That means to determine what is illegal business, it is necessary to rely on (refer to) the current business law regulations.

At present, what constitutes illegal business activities must be based on the 2014 Investment Law (effective from July 1, 2015) and its implementing documents. That means that from July 1, 2015, all regulations determining what constitutes illegal business activities must be based on the provisions of the 2014 Investment Law and its implementing documents. If you rely on previous documents on business activities, you will misunderstand the law.

Understanding of Binh Chanh prosecution agency

Returning to Mr. Tan's case, the prosecution agencies in Binh Chanh district prosecuted and indicted Mr. Tan on the basis that he had been administratively punished for illegal business activities and continued to violate.

Specifically, Mr. Tan was first administratively sanctioned for doing business without a food safety certificate (FSC) on August 18, 2015 (along with four other violations). On September 10, 2015, Binh Chanh District Police inspected again and determined that Mr. Tan had committed a violation of doing business without a FSC and other violations.

The question is whether the act of violating business without a food safety certificate is considered business without a separate license in cases where the law requires a license according to Article 159 of the 1999 Penal Code or not.

Regarding this issue, the former Deputy Chief of the People's Procuracy of Binh Chanh District (who was previously in charge of this case) explained to Ho Chi Minh City Law: "That is a separate license to ensure business compliance with regulations."

Major General Phan Anh Minh, Deputy Director of Ho Chi Minh City Police, when answering questions from Ho Chi Minh City Law at a press conference on the morning of April 21, said: “… Regarding the wording, the terms license and GCN for business establishments are still confusing. For example, in the field of petroleum business, it is mandatory to have a certificate of fire safety conditions and this is considered a type of license”.

Misunderstanding of licenses and certificates

In my opinion, the above understanding is not a correct understanding of the provisions cited in Article 159 of the Penal Code as mentioned. Here, the document cited to determine the content of the crime of illegal business must be the 2014 Investment Law and its implementing documents. Absolutely do not misunderstand the law cited for Article 159 of the Penal Code.

Clause 2, Article 7 of the Investment Law 2014 stipulates that the list of conditional investment and business sectors is specified in Appendix 4 of this law. Clause 3 of this law stipulates that the investment and business conditions for the sectors and professions specified in Clause 2 of this article are specified in laws, ordinances, decrees, etc.

And in Article 9 of Decree 118/2015 (guiding the implementation of the Investment Law), it is stipulated that business investment conditions are applied in one or several of the following forms: a) License; b) Certificate of eligibility; c) Certificate of practice; d) Certificate of professional liability insurance; e) Confirmation document...

At this point, we can clearly see that a license is just one of the business conditions under the Investment Law, and that a license cannot be equated with a qualified certificate of eligibility... In other words, a license is a license, a certificate is a certificate of eligibility, the law has stipulated very clearly and distinctly, there should be no confusion and there is nothing to be confused about.

Thus, the Binh Chanh district prosecution agency's identification of the Food Safety Certificate as a license is a serious mistake.

Must be suspended for non-criminal conduct

It is clear that Mr. Tan conducted business without a food safety certificate. However, because this certificate is not a license, his actions do not fall under the category of “conducting business without a separate license in cases where the law requires a license”. In other words, Mr. Tan’s actions do not constitute illegal business, so there is no basis to prosecute Mr. Tan for this crime.

However, because the prosecution agency has already initiated and prosecuted Mr. Tan, it is now necessary to remedy this by suspending the case and suspending the defendant. And as analyzed above, Mr. Tan's actions do not constitute a crime, so Mr. Tan must be suspended according to Clause 2, Article 107 of the Criminal Procedure Code. That is, Mr. Tan was wrongly prosecuted and prosecuted.

It should be noted that this case cannot be suspended under Clause 1, Article 25 of the Penal Code in terms of exemption from criminal liability. For one simple reason: Mr. Tan did not commit any crime, so why should he be exempted?

According to PLO