Short answer: No. Vietnamese law has no doctrine of “bearing criminal liability on someone else’s behalf.” Criminal liability is personal: prosecuting the company does not mean the legal representative “takes the fall”; the representative is criminally liable only if they themselves committed an offence — and then as an individual offender, not “for the company.”
1. The foundation: criminal liability attaches to the offender
Three foundational points, citing the latest versions in force:
- Article 2(2) of the Criminal Code (consolidated document 135/VBHN-VPQH, 05/9/2025): only offences listed in Article 76 can give rise to corporate criminal liability for commercial legal entities.
- Article 75(2) of the Criminal Code: “The criminal liability of a commercial legal entity does not exclude the criminal liability of individuals.” The two liabilities exist in parallel and independently — a fined company does not exempt individuals, and conversely, prosecuting an individual does not automatically clear the company.
- The handling principles in Article 3 of the Criminal Code confirm that criminal liability is imposed only on the subject who committed the offence.
Bottom line: each subject answers for their own conduct. There is no legal mechanism to “transfer” criminal liability from the company to its representative.
2. When is the legal representative criminally liable?
The legal representative is criminally liable only if they personally committed an offence — for example by directly committing, organising, instigating, assisting, or directing the criminal act. They are then prosecuted as an individual offender under the relevant article, never as a “stand-in for the company.”
Parallel prosecution of both is entirely possible: the company is prosecuted (if the four conditions of Article 75 are met and the offence is within Article 76) and the representative is prosecuted as an individual. These are two independent liabilities, not “joint” or “substitute” liability.
Example (illustrative): A director who is also the legal representative instructs the accounting department to keep two sets of books to evade tax. The company may be prosecuted as a commercial legal entity (if Article 75 conditions are met and the offence falls under Article 76), while the director is prosecuted individually for directing the act. Nobody “takes the fall” for anyone else.
3. The representative’s procedural role: representation, not default defendant
The most common real-world confusion: a legal representative summoned or appearing in court is mistaken for being “arrested in the company’s place.” The law distinguishes three roles sharply:
- Representative of the legal entity in proceedings — all procedural acts of a legal entity under criminal prosecution are carried out through the legal representative (Article 434 of the Criminal Procedure Code, consolidated document 104/VBHN-VPQH, 27/8/2025).
- Suspect/defendant in a personal capacity — only if that person personally committed an offence.
- Witness.
One person may hold roles (1) and (2) simultaneously — but they are distinct legal roles and must not be conflated.
Notably, Article 435(1)(đ) of the Criminal Procedure Code provides that the legal representative is not compelled to testify against the legal entity they represent or to admit that the entity is guilty. This is an important procedural safeguard reflecting the representative nature of the role.
Practical note: the law provides that when the legal representative is prosecuted, the entity must appoint another person to represent it in proceedings (Article 434). For small businesses with a single legal representative, this often causes procedural confusion — a practical difficulty, not an additional legal rule.
4. The representative’s liability to the company: civil, not criminal “substitution”
Article 13(2) of the Law on Enterprises (consolidated document 67/VBHN-VPQH; this content was amended by Law 76/2025/QH15, promulgated 17/6/2025, effective 01/7/2025) provides that the legal representative bears personal liability “in accordance with the law” for damage caused to the enterprise by breaching their duties.
This is civil liability to compensate the company itself — for example, a representative who signs a contract causing damage to the company must compensate the company — not “bearing the company’s criminal liability in its place.” The two regimes are entirely different.
5. Background definition of the legal representative
- Article 12(1) of the Law on Enterprises: the legal representative is the individual who represents the enterprise in exercising rights and performing obligations arising from the enterprise’s transactions, and represents the enterprise as a petitioner, plaintiff, defendant, or person with related rights and obligations before arbitration and courts.
- Article 12(2): LLCs and joint-stock companies may have one or more legal representatives; where the division of rights and obligations among them is not clearly defined, each is a fully authorised representative of the enterprise before third parties and jointly and severally liable for damage to the enterprise. (Note: “joint and several” here is civil-law language.)
FAQ
Q: The company was criminally fined. Is the director (legal representative) automatically prosecuted?
A: No. Only if the director’s own conduct constitutes a crime. Otherwise they participate in proceedings solely as the entity’s representative (Article 434, Criminal Procedure Code).
Q: The representative signed the offending documents but says they were “following orders” — any defence?
A: “Following orders” is not an automatic defence. Courts assess each individual’s role, awareness, and voluntariness.
Q: Can the legal representative refuse to testify against the company they represent?
A: Yes. Article 435(1)(đ) of the Criminal Procedure Code provides that the legal representative is not compelled to testify against the legal entity they represent.
Legal sources
- Criminal Code 2015 — consolidated document 135/VBHN-VPQH (05/9/2025) — Articles 2, 3, 75 — in force (incorporating amendments by Law 86/2025/QH15, promulgated 25/6/2025, effective 01/7/2025)
- Criminal Procedure Code — consolidated document 104/VBHN-VPQH (27/8/2025) — Articles 434, 435 — in force
- Law on Enterprises — consolidated document 67/VBHN-VPQH — Articles 12, 13 — in force (Article 13(2) per amendments by Law 76/2025/QH15, promulgated 17/6/2025, effective 01/7/2025)
- Full texts: thuvienphapluat.vn (accessed 14/10/2026)
For advice on your company’s specific situation, please contact us via the Contact page of this website.
Transparency note: this draft is under internal review and has not been published. It is for general information only and does not replace legal advice for a specific case; it is not a lawyer’s opinion and is not marked as “reviewed by a lawyer”.
For reference only, not legal advice. Content quality-checked by the AI Legal Council; not yet reviewed by a human lawyer.