Conviction and conviction expungement under the Penal Code 2015

Hello, Lawnet would like to answer your questions as follows:

1. What is a conviction?

Conviction is a term that is not clearly defined in criminal law. However, according to relevant legal regulations, a conviction can be defined as a bad character trait (consequence) of the convicted person, and the penalty imposed is recorded and saved in the conviction within the statutory period. When a criminal has been sentenced by a court to a penalty, the legal consequences they must endure are not only having to serve that penalty but also being considered to have a conviction—a feature in many activities of social life as well as when there is a violation of the law or a criminal act. A conviction is not a permanent personal characteristic. After a period of time and with specific conditions prescribed by law, the conviction will be erased.

2.  What are regulations on conviction expungement? What are cases where a convict​ is treated as if he/she does not have such conviction in Vietnam? 

 A convict may have hisher conviction expunged after serving his/her prison sentence and going through a probation period

According to the provisions of Clause 1, Article 69 of the Penal Code 2015, a person whose conviction is expunged is treated as if he/she does not have such conviction.

In case the convicted person is not considered to have a conviction:

Clause 2, Article 69 and Article 107 of the Penal Code 2015 clearly stipulates 05 cases where a convict​ is treated as if he/she does not have such conviction in Vietnam

- People convicted of involuntary and less serious crimes or serious crimes 

- People who are exempt from punishment;

- 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;

- The offender aged under 18 being subjected to judicial measures of education at a reform school.

3. What are the cases of conviction expungement in Vietnam?

The Penal Code 2015 stipulates 03 cases of conviction expungement, including: Automatic conviction expungement; Conviction expungement under a court's decision; Special cases of conviction expungement

3.1. Automatic conviction expungement

According to the provisions of Article 70 of the Penal Code 2015, cases that automatically meet the conditions for having convictions erased include:

- Automatic conviction expungement is granted to people convicted of crimes other than those specified in Chapter XIII and Chapter XXVI of the Penal Code 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 Article 70 of the Penal Code 2015 are met.

- 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:

+ 01 year in case of a warning, fine, community sentence or suspended imprisonment sentence;

+ 02 years in case of imprisonment of up to 05 years;

+ 03 years in case of imprisonment from over 05 years to 15 years;

+ 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 Clause 2 of Article 70 of the Penal Code 2015, automatic conviction expungement shall be granted when he/she finishes serving the additional punishment.

- 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.

- 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 Article 70 of the Penal Code 2015 are satisfied.

3.2. Conviction expungement under a court's decision

- Conviction expungement under a court's is granted to people convicted of crimes 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 Article 71 of the Penal Code 2015 are met.

The court shall decide whether to grant conviction expungement to people convicted of the criminal offences specified in Chapter XIII and Chapter XXVI of the Penal Code 2015 in consideration of the nature of the crimes committed, the convicts' obedience to the law and working attitude.

- The court shall grant conviction expungement if the convict, after serving the primary sentence or probation period of a suspended sentence as well as additional sentences and other decisions of the judgment, does not commit any new crime over the following periods:

+ 03 years in case of warning, community sentence or imprisonment of up to 05 years;

+ 05 years in case of 05 - 15 years' imprisonment;

+ 07 years in case of > 15 years' imprisonment, life imprisonment or death sentence that is commuted.

If the convict is serving an additional sentence which is mandatory supervision, prohibition from residence or deprivation of certain citizenship rights for a longer period than that specified in Point a of Clause 2 of Article 71 of the Penal Code 2015, conviction expungement shall be considered when he/she finishes serving the additional sentence.

- If a convict does not commit any new crime during the period specified in Clause 2 of Article 71 of the Penal Code 2015 from the expiration of the time limit for sentence execution.

- If an application for conviction expungement is rejected for the first time, it may only be resubmitted after 01 year; if the application for conviction expungement is rejected for the second time, it may only be resubmitted after 02 years.

3.3. Special cases of conviction expungement

Where a convict shows remarkable improvements and has made reparation in an effort to atone for the crime and conviction expungement is requested by his/her employer or local authority, the court shall decide to grant conviction expungement if has served at least one third of the period specified in Clause 2 Article 70 and Clause 2 Article 71 of the Penal Code 2015.

(*) Cases of conviction expungement for offender under 18

- 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 extremely serious crime shall automatically have his/her conviction expunged if he/she does not commit any new crime for 03 years from the day on which the primary sentence is served or from the expiration of the time limit for sentence execution.

Best regards!

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