Is the case in which the contract is applied by the court based on an insignificant factor?
What is the meaning of the suspended sentence in Vietnam?
Resolution 02/2018/NQ-HDTP on guidelines for Article 65 of the Criminal Code:
"Article 1. Shock absorbers
Suspended sentence means the measure of conditional exemption from execution of imprisonment penalty which is applied by a court to an offender who is sentenced to imprisonment for not more than 3 years, based on the personal background of the offender and extenuating circumstances, it is considered that he/she needs not to apply the imprisonment penalty."
Accordingly, suspended sentence in Vietnam is applicable to offenders who have a term of imprisonment of not more than 3 years. To apply suspended sentences, courts shall base themselves on the personal records and extenuating circumstances of offenders to decide.
What is the condition applied to the suspended sentence?
Resolution 02/2018/NQ-HDTP on guidelines for Article 65 of the Criminal Code on suspended sentence in Vietnam (which is amended by Point a, b Clause 1 Article 1 of Resolution No.01/2022/ NQ-HĐTP)
A person sentenced to imprisonment may be considered for application of suspended sentence in Vietnam when fully meeting the following conditions:
- He/she is sentenced to imprisonment for not more than 3 years.
- Persons sentenced to imprisonment have relatives who are not committed this crime and persons who have committed the crime of observing policies and laws and fulfilling all obligations of citizens at their places of residence and workplaces.
+ Those who have been convicted but fall into the case considered having no previous conviction, have had their previous criminal convictions expunged, and those who have been administratively sanctioned or disciplined but, by the date of committing this new crime, have already been regarded as having never been administratively sanctioned or disciplined according to law, if deeming that the nature and severity of the new crime has been committed in a case of less serious or the crime is the one who has committed the act of considerable role in the case and meets all other conditions, may also serve suspended sentence in Vietnam;
+ For a convict who has used the fact that "has been disciplined" or "has been administratively sanctioned" or "has been convicted" and satisfies all other conditions, such person may also be entitled to suspended sentence in Vietnam;
+ For a convict who is separated for settlement in different periods (separation into different cases) and meets all other conditions, such case may also be suspended.
- He/she has two or more extenuating circumstances of his/her penal liability, including at least one extenuating circumstance specified in Clause 1, Article 51 of the Penal Code and no aggravating circumstance of his/her penal liability specified in Clause 1, Article 52 of the Penal Code.
If there is an aggravating circumstance in a criminal liability, the aggravating circumstance(s) of criminal liability must be more than two (02) circumstances or more, including at least one extenuating circumstance prescribed in Clause 1 Article 51 of the Criminal Code.
- Having clear residence or stable working places for the competent agencies or organizations to supervise and educate them.
Clear place of residence means a place of temporary or permanent residence with a specific address specified in accordance with the Residence Law in which a person subject to a suspended sentence in Vietnam returns to reside and regularly lives after he/she enjoys a suspended sentence in Vietnam.
"stable workplace" means the workplace where the offender has worked for at least 1 year under an employment contract or a decision of a competent authority.
- It is deemed unnecessary to compel the serving of imprisonment penalty if the offender is capable of self-renovation and the suspended sentence in Vietnam is not dangerous to the society and does not adversely affect security, social order and safety.
- When considering and deciding to permit the defendant to enjoy suspended sentence in Vietnam, the court shall carefully and strictly consider conditions to ensure such suspension sentence is compliant with law, especially for the cases guided in Clauses 2, 4 and 5, Article 3 of this Resolution.
Accordingly, offenders must fully satisfy the above conditions before applying suspended sentences.
Was there any suspension?
Resolution 02/TANDTC-PC in 2021 on answering a number of difficulties arising during adjudication:
"Pursuant to Clause 1 Article 3 of Resolution No. Thus, if the offender is subjected to an aggravating circumstance that "the offence has an insect character" or an aggravating circumstance that "the offence has an element character" as prescribed in the Criminal Code, the offender shall be subjected to a suspended sentence.
However, for criminal cases committed in conjunction with the court, when adjudicating them, the court shall consider and assess the nature, role and act of the crime committed in each conjunction so as to determine whether the crime committed in an inclusion or not."
Accordingly, if the offender is applied with " condenser" factor by the court, such offender shall not be suspended. However, in case of a violation in Vietnam, the role of each violation in Vietnam must be determined in order to determine whether the crime is composed of a clutch or not.
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