Vietnam: If a person who is full 18 years old commits a crime but was previously convicted when he was less than 16 years old, is he a first time offender?
When can a person under 18 years of age have conviction expunged?
Pursuant to Article 107 of the 2015 Criminal Code of Vietnam (amended by Clause 19, Article 1 of the 2017 Law on amendments to the Criminal Code of Vietnam) on expungement of conviction in Vietnam as follows:
Expungement of conviction in Vietnam
1. A juvenile offender shall be treated as if he/she does not have a conviction in any of the following circumstances:
a) The offender is from 14 to under 16 years of age;
b) The offender aged from 16 to under 18 is convicted of a less serious crime, serious crime or an involuntary very serious crime;
c) Judicial measures specified in Section 3 of this Chapter are taken.
2. A person aged from 16 to under 18 who is convicted of a deliberate very serious crime or an extremely serious crime shall automatically have his/her conviction expunged if from the day on which the primary sentence is served or from expiration of the probation or from the expiration of the time limit for sentence execution, he/she does not commit any new crime for:
a) 06 years in case of a warning, fine, community sentence, or suspended imprisonment;
b) 01 year in case of imprisonment of up to 05 years;
c) 02 years in case of imprisonment exceeding 05 years but not exceeding 15 years;
d) 03 years in case of imprisonment exceeding 15 years.
Thus, a person under 18 years of age have conviction expunged in the following circumstances:
- A juvenile offender shall be treated as if he/she does not have a conviction in any of the following circumstances:
+ The offender is from 14 to under 16 years of age;
+ The offender aged from 16 to under 18 is convicted of a less serious crime, serious crime or an involuntary very serious crime;
+ Judicial measures specified in Section 3 of this Chapter are taken.
- A person aged from 16 to under 18 who is convicted of a deliberate very serious crime or an extremely serious crime shall automatically have his/her conviction expunged if from the day on which the primary sentence is served or from expiration of the probation or from the expiration of the time limit for sentence execution, he/she does not commit any new crime for:
+ 06 years in case of a warning, fine, community sentence, or suspended imprisonment;
+ 01 year in case of imprisonment of up to 05 years;
+ 02 years in case of imprisonment exceeding 05 years but not exceeding 15 years;
+ 03 years in case of imprisonment exceeding 15 years.
Vietnam: If a person who is full 18 years old commits a crime but was previously convicted when he was less than 16 years old, is he a first time offender?
If a person who is full 18 years old commits a crime but was previously convicted when he was less than 16 years old, is he a "first-time offender"?
Based on subsection 1, Section I of Official Dispatch 206/TANDTC-PC in 2022, the answers are as follows:
1. If a person who is full 18 years old commits a crime but was previously convicted when he was less than 16 years old, does he fall under the category of “first time offenders”?
According to the provisions of Point a, Clause 1, Article 107 of the Penal Code, convicted persons aged between full 14 and under 16 years are considered to have no criminal record. Therefore, if a person who is full 18 years old commits a crime but was previously convicted when he was less than 16 years old, he/she falls under the case of "first time offender".
According to the above regulations, a person from full 14 years old to under 16 years old who is convicted is considered to have no criminal record
Therefore, if a person who is full 18 years old commits a crime but was previously convicted when he was less than 16 years old, he/she falls under the case of "first time offender".
View the full content of Official Dispatch 206/TANDTC-PC in 2022 about the Supreme People's Court's resolution of problems in the trial of criminal, civil and administrative cases: Here.
Is the first offense considered a mitigating factor of criminal liability?
Pursuant to Article 51 of the 2015 Criminal Code of Vietnam stipulating as follows:
Mitigating factors
1. The following circumstances are considered mitigating factors:
a) The offender has prevented or reduced the harm caused by the crime;
b) The offender voluntarily makes rectification, pays damages or relieves the consequences;
c) The crime is considered unjustified force in self-defense;
d) The crime is considered unjustified force in urgent circumstance;
dd) The crime is considered unjustified force in capturing a criminal;
e) The crime is committed under provocation caused by the victim's illegal acts;
g) The crime is committed because of extreme hardship that is not on the offender's account;
h) The crime has not inflicted damage or the damage inflicted is not significant;
i) The offender commits a less serious crime and does not have prior criminal record;
k) The crime is committed because the offender threatened or coerced by others;
l) The offender commits the crime while because of lack of awareness that is not on his/her account;
m) The crime is committed due to obsolescence;
n) The offender is a pregnant woman;
o) The offender is 70 years of age or older;
p) The offender has a serious physical disability or extremely serious physical disability;
g) The offender has a disease that limits his/her awareness or control of his/her acts;
r) The offender turns himself/herself in;
s) The offender expresses cooperative attitude or contrition;
t) The offender arduously assisting the agencies concerned in discovery of crimes or investigation;
u) The offender has made reparation in an effort to atone for the crime;
v) The offender is an excellent worker, soldier or student;
x) The offender is a parent, spouse or child of a war martyr or war veteran.
2. When issuing a decision on sentences, the Court might consider the offender's turning himself/herself in or other circumstances as mitigating factors and specify the reasons in the judgment.
3. If a circumstance defined as a mitigating factor this document is the basis for determination of a crime or sentence bracket, it shall not be considered a mitigating factor in the decision on sentences.
Thus, the fact that the offender commits a less serious crime and does not have prior criminal record is one of the mitigating factors of criminal liability.
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