Comparison of the provisions of the Vietnamese Penal Code and the provisions of the criminal codes of some countries in the world on the crime of money laundering

embezzlement, bribery...) or obtained by the offender from buying, selling, or exchanging property obtained directly from their crime (for example, a motorbike obtained from using embezzled money to buy) [1]. According to the provisions of Clause 2, Article 4 of the Law on Anti-Money Laundering No. 07/2012/QH13 dated June 18, 2012 (hereinafter referred to as the Law on Anti-Money Laundering):

Property includes objects, money, valuable papers and property rights as prescribed by the Civil Code, which can exist in material or immaterial form; movable or immovable property; tangible or intangible; documents or legal instruments proving ownership or interests in such property [32, Article 4, Clause 2].

This provision is consistent with the definition of property stipulated in Clause g, Article 1 of the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (hereinafter referred to as the Vienna Convention) “property means property in any form, tangible or intangible, movable or immovable, material or immaterial, and also documents or legal documents certifying ownership or interests in such property” [17, Article 1]. Unlike the provisions of the laws of some countries that limit money and property in certain predicate crimes, the 1999 Vietnamese Penal Code does not limit it, so this money and property can be the result of any other crime. This money and property has two roles, both as money and property that the original crime obtained, that is, the result of the predicate crime, and as the subject of influence and target of the crime of money laundering. In terms of nature, this money and property are illegal, because they have been illegally converted in form of ownership through the process of committing the source crime, so they are not legal money and property that are allowed to circulate openly on the market. With other crimes, after the crime is completed, the material values obtained such as money and property are illegal, but with the crime of money laundering, the money and property products are

under the guise of legality (although its nature is still illegal). Therefore, it can be said that money laundering is a crime that all crimes that obtain material value aim at, due to the special nature of the subject of the money laundering crime. However, the use of the words "money, property" that the Penal Code is currently using is not consistent with the use of words in current domestic and international legal documents, which only use the word "property" to include both money and property.

1.1.2. Objective aspects of money laundering

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“The objective aspect of a crime is the external aspect of a crime, including the manifestations of a crime that occur or exist outside the objective world ” [38, p.91]. The objective aspect of a crime includes: objectively socially dangerous behavior, socially dangerous consequences, the causal relationship between behavior and consequences, and external conditions for committing a crime such as tools, means of committing a crime, methods and tricks of committing a crime, etc.

According to Article 251 of the 1999 Penal Code, money laundering is defined as a crime with formal provisions, meaning that the legislator only stipulates (describes) the objective behavior and does not stipulate the consequences of the crime. The objective behavior of money laundering includes the following four types of behavior:

First , the act of “ directly or indirectly participating in financial, banking or other transactions involving money or property knowingly obtained through crime in order to conceal the illegal origin of such money or property ”.

According to the provisions of Clause 1, Article 3 of Joint Circular No. 09/2011/TTLT-BCA-BQP-NHNNVN-VKSNDTC-TANDTC, acts in group one include:

a) Deposit money and open a bank account;

b) Pledge and mortgage of assets;

c) Lending, entrusting, leasing, financial purchasing;

d) Money transfer, money exchange;

d) Buying and selling stocks, bonds and other valuable papers;

e) Issuance of securities;

g) Issuance of means of payment;

h) Financial guarantees and commitments, foreign exchange trading, money market instruments, transferable securities;

i) Managing individual and collective investment portfolios;

k) Managing cash or liquid securities on behalf of individuals or groups;

l) Investing capital or money for individuals or groups;

m) Conduct life insurance activities and insurance related to other investments;

n) Activities aimed at converting, transferring or changing ownership of money and assets of individuals, agencies and organizations [1, Article 3, Clause 1].

In this type of behavior, the offender committed the crime by conducting financial and banking transactions through financial institutions such as credit, securities, bonds, money transfers, money exchange, insurance, etc. This is the first type of behavior listed by the legislator. This is quite consistent with reality because this is the first method commonly used in the money laundering process that criminals often perform. This process is presented quite thoroughly in a number of research documents of individuals and large financial institutions in the world [30]. The author would like to summarize as follows: Normally, the money laundering process is divided into three stages. a) The first stage is arrangement. This stage involves the arrangement of funds of illegal origin into the financial system, usually through a financial institution such as depositing money into a bank account. Large amounts of cash are divided into small amounts and gradually deposited into different accounts and departments of financial institutions, or exchanged from

This money is transferred from one denomination to another or from a low denomination to a high denomination. b) Stage 2 is layering (dividing), the criminal will carry out the dispersion and circulation of money. This stage occurs when dirty money has been introduced into the financial system, money, securities or insurance contracts continue to be converted or transferred to other organizations to further separate them from the source of the crime. In this stage, money launderers use dirty money to carry out as many financial transactions as possible, especially cross-border transactions such as transferring between bank accounts, countries, project investment, converting into securities, traveler's checks... to create a complex, intricate and difficult-to-trace transaction network, as far away from the starting point as possible. c) The final stage is integration: bringing the money into the mainstream economy such as buying assets such as luxury goods, real estate...

The offender in the first stage can perform direct acts such as opening an account, depositing money into the account, or performing professional activities if he is a professional in banking and finance, or indirectly such as advising, directing, asking for help, forcing others to perform acts... Thus, in this stage, the crime of money laundering is successful thanks to the legality of transactions with legal entities such as organizations and financial institutions to legalize dirty money. Therefore, the Law on Anti-Money Laundering has stipulated many contents related to monitoring, supervision, reporting and handling of suspicious financial transactions [32]. These provisions are necessary and consistent with group B recommendations “measures to be taken by financial institutions and non-financial businesses and professions to prevent money laundering and terrorist financing” set out in the 40+9 recommendations on anti-money laundering and terrorist financing of the Financial Action Task Force on Money Laundering [7].

Second, the act of “using money or other property known to be obtained through crime to conduct business or other activities”.

According to the provisions of Clause 2, Article 3 of Circular No. 09/2011/TTLT-BCA-BQP-NHNNVN-VKSNDTC-TANDTC:

Using money or property knowingly obtained from crime to conduct business or other activities is using that money or property for business activities, services, establishing companies, building schools, hospitals, purchasing property in various forms or using it under the name of sponsorship, charity, or humanitarian aid [1, Article 3, paragraph 2].

After the first two stages, in this third stage, putting dirty money into business is the top choice for money laundering measures. Dirty money has "stepped out" from financial and banking transactions, appearing under the first legal cover to continue participating in real business activities in the market, converting into tangible assets. This means that dirty money now openly exists in the market, the legal cover has fully developed. In different ways, business activities that bring real profits or fake profits will be the most legal cover for dirty money. Criminals can establish businesses, companies, invest in projects... these subjects are often just empty shells or operate ineffectively but are reported as profitable. The profit here is dirty money. To legalize dirty money in this way, criminals often choose fields that are considered to be highly profitable, dominating the market to easily deceive the authorities. In addition, criminals also buy shares of legitimate companies and businesses that are doing profitable business to mix dirty money with clean money, gain profits and move towards taking control and dominating businesses with an increasing number of shares, buying luxury goods, real estate, etc.

+ Third, the act of “concealing information about the origin, true nature, location, movement or ownership of money or property known to be obtained through crime or obstructing the verification of such information”.

This behavior does not directly affect dirty money and assets, but is supportive for money laundering activities to be carried out smoothly. This group of behaviors includes acts of concealment, providing false information or causing difficulties, hindering the investigation to clarify the origin, nature, location, movement or ownership of money and assets. These are acts of destroying unfavorable documents, creating other untrue documents, misleading the monitoring and investigation process of the authorities... Although not a group of behaviors that directly affect dirty money and assets, these behaviors are no less dangerous than the two previous groups of behaviors because the role of information about dirty money and assets is very important in the process of monitoring, detecting and investigating crimes.

Fourth , the group of acts "committing one of the acts specified in points a, b and c of this clause with respect to money and assets known to be obtained from the transfer, assignment or conversion of money and assets obtained from crime".

This case includes all three types of behavior analyzed above, however, the objects of this group of behaviors are new money and assets that appear after the initial illegal money and assets have been transferred, assigned, or converted. This is essentially a money laundering act that follows the first money laundering acts, when dirty money and assets have gone through the initial processing layer, have an initial legal cover, and now continue the process of changing shape on the way to finding the perfect legal cover for themselves. The nature of this money and assets is still illegal, the initial actions do not change their nature, and the person who performs the actions affecting the money and assets of this "third generation" has performed money laundering in the true sense of the word.

Thus, the 1999 Vietnamese Penal Code stipulates four objective forms of money laundering at a general level. This provision is basically consistent with the requirement of summarizing all forms of behavior, not falling into a state of not listing all specific behaviors, which may lead to missing criminals. However, if only generalizing four groups of behaviors like that, it still does not cover all forms of money laundering due to the complex and diverse nature of money laundering, especially when the economy is increasingly developing, the level of science and technology, and the level of awareness are increasingly improving, the appearance of new money laundering behaviors and methods is difficult to predict, so there needs to be more general provisions on money laundering to cover everything, avoiding missing criminals due to the lack of prescribed sanctions.

One point to note according to the provisions of Clause 1, Article 4 of the Law on Anti-Money Laundering is that in addition to the four groups of acts prescribed in the Penal Code as mentioned above, there are two other acts: "assisting organizations and individuals involved in crimes to evade legal responsibility by legalizing the origin of assets obtained through crime" and the act of "possessing property if at the time of receiving the property, it is known that the property is obtained through crime, in order to legalize the origin of the property" [32]. The first act is an act of assistance and support such as creating fake documents proving the origin of the property... and the second act is holding and managing assets obtained through crime. According to the provisions of the Law on Anti-Money Laundering, these two acts are acts of money laundering. However, compared with the provisions of the Penal Code, these two acts are similar to the act of "harboring and consuming assets obtained through crime" prescribed in Article 250 [31]. On the other hand, this provision shows that Article 251 of the 1999 Penal Code has not yet fully described the objective acts of the crime of money laundering. This is an issue that needs further research to develop a complete regulation on the crime of money laundering in the Vietnamese Penal Code.

1.1.3. Subjective aspect of money laundering crime

“The subjective aspect of a crime is the psychological activity that takes place inside the criminal. The subjective aspect of a crime includes: fault, purpose, and motive for committing the crime ” [38, p.125].

In terms of errors, when describing groups of money laundering acts, lawmakers all use the phrase "knowing that it is a crime". According to the provisions of Clause 2, Article 1 of Joint Circular No. 09/2011/TTLT-BCA-BQP-NHNNVN-VKSNDTC-TANDTC,

“knowing that the property is obtained by another person committing a crime means having grounds to prove that the property is obtained directly from the person committing the crime or from buying, selling, or exchanging property obtained directly from the person committing the crime” [1, Article 1, paragraph 2]. In addition, in point a, paragraph 1, Article 251 of the 1999 Penal Code, there is also the phrase “to conceal the illegal origin of the money or property” . Thus, when realizing that the origin of the money or property is illegal but still performing acts affecting that money or property, the person performing the act has shown a deliberate psychological attitude, therefore, the fault of the money laundering crime is intentional. The offender has clearly realized that his/her behavior is illegal, causing difficulties and complications for the investigation and handling of the source crime, and infringing on the State's management of illegal assets. As a citizen, anyone who has reached a certain level of awareness understands that money and assets obtained from any criminal act are illegal and must be dealt with before the law, and that any assistance in concealment is illegal, but the criminal still accepts and participates in the process of handling or concealing in order to create a legal cover for that amount of money and assets. This means that the criminal has committed a crime with intentional fault, which here includes both direct and indirect intentional fault. This intentional fault shows two fault states of the money launderer: first, the criminal did not report the previous crime (if the money launderer is not the person who

Comparison of the provisions of the Vietnamese Penal Code and the provisions of the criminal codes of some countries in the world on the crime of money laundering - 3

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