Will the defendant who receives a suspended sentence in Vietnam be discharged immediately at the trial? Shall a suspended sentence still be imposed if there are aggravating factors to criminal liability in Vietnam?
Will the defendant who receives a suspended sentence in Vietnam be discharged immediately at the trial?
Article 328 of the Criminal Procedure Code 2015 stipulates the discharge of defendants:
Discharge of defendants
In the following events, the Trial panel must declare the immediate discharge, in the courtroom, of a defendant in detention, if he is not held in detention for another crime:
1. The defendant is guiltless;
2. The defendant is exempt from criminal liabilities or penalties;
3. The defendant is not sentenced to imprisonment;
4. A suspended sentence is imposed on the defendant;
5. The length of the jail sentence is equal to or shorter than the length of the detention of the defendant.
Thus, if the defendant is not detained for another crime, the trial panel must declare the immediate discharge at the trial if he/she receives a suspended sentence.
Will the defendant who receives a suspended sentence in Vietnam be discharged immediately at the trial? Shall a suspended sentence still be imposed if there are aggravating factors to criminal liability? (Image from the Internet)
Shall a suspended sentence still be imposed if there are aggravating factors to criminal liability in Vietnam?
Article 2 of Resolution 02/2018/NQ-HDTP, amended and supplemented by Clause 1, Point a, Article 1 of Resolution 01/2022/NQ-HDTP, provides the conditions for allowing those sentenced to imprisonment to receive suspended sentences as follows:
Conditions for allowing those sentenced to imprisonment to receive suspended sentences
A person sentenced to imprisonment can be considered for a suspended sentence when they meet all the following conditions:
1. He/she is sentenced to imprisonment for no more than 03 years.
2. The person sentenced to imprisonment has a background where, apart from this crime, they comply with policies, laws, and fully fulfill their obligations as citizens at their place of residence and work.
a) For those who have been convicted but are considered as having no criminal record, those who have been convicted but the record has been expunged, those who have been administratively sanctioned or disciplined, but until the time of the current offense, the statutory period has elapsed for them to be considered as not sanctioned or disciplined according to the law; if the nature and severity of the new offense are considered minor, or the offender is an accomplice with an insignificant role in the case and meets other conditions, they can also be considered for a suspended sentence;
b) For those who have been convicted, where the determination of the crime already used the factors of having been disciplined, administratively sanctioned, or previously convicted, and they meet other conditions, they can also be considered for a suspended sentence;
c) For those convicted where the case was separated to be resolved in different stages (several cases), and they meet other conditions, they can also be considered for a suspended sentence.
3. There must be at least 02 mitigating factors of criminal liability, including at least 01 circumstance specified in Clause 1, Article 51 of the Criminal Code, and no aggravating factors specified in Clause 1, Article 52 of the Criminal Code.
In cases where there are aggravating factors of criminal liability, the number of mitigating factors must be more than the aggravating factors by at least 02, including at least 01 mitigating circumstance specified in Clause 1, Article 51 of the Criminal Code.
4. There is a clear place of residence or stable place of work for the competent authorities to supervise and educate.
A clear place of residence is a temporary or permanent place of residence with a specific address as stipulated in the Law on Residence, where the person receiving the suspended sentence resides and lives regularly after receiving the suspended sentence.
A stable place of work is where the offender has worked for at least 01 year according to a labor contract or a decision of a competent authority or organization.
5. It is deemed unnecessary to enforce the imprisonment sentence if the offender can self-rehabilitate and granting them a suspended sentence does not pose a danger to society and does not negatively affect public safety or order.
6. When reviewing, the Court must carefully and strictly consider the conditions to ensure that granting a suspended sentence conforms with the law, especially in cases guided in Clauses 2, 4, and 5 of Article 3 of this Resolution.
To receive a suspended sentence, the defendant must meet the above conditions, including having at least 02 mitigating factors of criminal liability and no aggravating factors. Therefore, if the defendant has aggravating factors, they will not be granted a suspended sentence.
When is a person who receives a suspended sentence subject to automatic conviction expungement in Vietnam?
Article 70 of the Criminal Code 2015 stipulates automatic conviction expungement:
Automatic conviction expungement
1. Automatic conviction expungement is granted to people convicted of crimes other than those specified in Chapter XIII and Chapter XXVI hereof after they have served their primary sentences, probation period of a suspended sentence or when the time limit for sentence execution expires and the conditions specified in Clause 2 and Clause 3 of this Article are met.
2. Automatic conviction expungement shall be granted to a convict if he has served the primary sentence or the probation period of a suspended sentence, additional punishments, other decisions of the judgment and does not commit any new crime during the periods specified below:
a) 01 year in case of a warning, fine, community sentence or suspended imprisonment sentence;
b) 02 years in case of imprisonment of up to 05 years;
c) 03 years in case of imprisonment from over 05 years to 15 years;
d) 05 years in case of imprisonment of over 15 years or commuted life imprisonment.
A convict serving an additional punishment that is mandatory supervision, prohibition from residence, prohibition from holding certain positions, prohibition from doing certain jobs, deprivation of certain citizenship rights for a period longer than those specified in Point a, b and c of this Clause, automatic conviction expungement shall be granted when he/she finishes serving the additional punishment.
3. Automatic conviction expungement shall be granted to a convict if he/she does not commit any new crime during the period specified in Clause 2 of this Article from the end of the time limit for sentence execution.
4. The agency managing criminal record database shall update information about criminal records of the convicts and issue criminal records which contains certification of no convictions on request if all conditions specified in Clause 2 or Clause 3 of this Article are satisfied.
Thus, a person who receives a suspended sentence shall be subject to automatic conviction expungement in Vietnam after the probation period of the suspended sentence, or 1 year after the probation period if the person has completed the additional penalties and other decisions of the judgment and has not committed a new crime.
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