Automatic conviction expungement in Vietnam: Can it be considered without legal costs paid?

Automatic conviction expungement in Vietnam: Can it be considered without legal costs paid? (Illustrative photo)

1. Legal Provisions on automatic conviction expungement and existing views

According to Article 70 of the Ciminal Code 2015 (Ciminal Code), Automatic conviction expungement applies to those convicted, excluding the crimes specified in Chapter XIII and Chapter XXVI of this Code, when they have completed their sentence, probation period, or the statute of limitations on the enforcement of the sentence without committing any new offenses during that period.

Currently, in many places, there is a delay in the court sending the legally effective judgment to the same-level civil judgment enforcement agency, making it difficult for this agency to issue decisions on enforcement of court fees and civil decisions in criminal judgments for convicted persons. Consequently, there are instances where offenders, after serving imprisonment or probation periods, have not paid the legal costs due to the absence of enforcement decisions by the competent authority. In such cases, can such offenders be considered automatically eligible for expungement under Article 70 of the Ciminal Code?

There are currently two perspectives on this issue:

- First perspective: It is considered that the convicted person should automatically qualify for expungement. This is because the delay by the court in transferring the judgment to the Enforcement Agency, resulting in the latter's delay in issuing the enforcement decision, is the fault of the state agency, not the convicted person's fault for not paying the court fees. Hence, it should favor the individual's interest to apply automatic expungement in this case.

- Second perspective: It is argued that in this situation, the condition for automatic expungement should not be considered. Since court fees are part of the judgment, the convicted person’s failure to pay court fees means the judgment is not fully executed. Therefore, under the spirit of Article 70 Ciminal Code, the individual does not meet the requirement for automatic expungement as per the law.

In practice, during enforcement in prisons or at local levels, law enforcement officers supervising probation or non-custodial rehabilitation remind and facilitate the convicts to comply fully with the judgment, including court fees. Also, convicted persons receiving the judgment are aware of their obligations under the judgment. Therefore, it is not justifiable to argue that non-payment of court fees is due to unawareness.

Moreover, the convicted person's failure to fully comply with the judgment demonstrates a lack of respect for the law. Such individuals cannot receive lenient treatment under the law. Favorable conditions for offenders must be prescribed specifically and cannot be arbitrarily applied for perceived benefits without clear legal provisions.

Thus, it appears that the second perspective prevails in determining whether convicted persons who have completed the main sentence but have yet to pay legal costs can be considered for automatic expungement.

2. Guidance from competent authorities in Vietnam

The second perspective is also reflected in Official Dispatch 64/TANDTC-PC, which reports the results of an online Q&A session addressing several issues in criminal, civil, and administrative procedures by the Council of Justices of the Supreme People's Court. It states that persons who have completed prison sentences and are eligible for automatic expungement under Article 70 Ciminal Code but have not enforced supplementary penalties, legal costs of first instance, and other decisions due to not receiving enforcement notifications are considered not to have fully enforced the supplementary penalties and other decisions. In this case, the convicted person does not automatically qualify for expungement under Article 70 of the Ciminal Code. The current Ciminal Code does not provide exceptions for incomplete supplementary penalties and other decisions for any reason. Additionally, the civil enforcement law provides various methods for enforcement like voluntary enforcement, mutual agreement, or assistance from relatives for payment.

Although guidance has been provided, it is internal to the judicial system and applies within the judiciary to consider the criminal factors during adjudication. It is not a general legal regulation for all cases. Therefore, a legal document specifying and regulating this issue is necessary to serve as a basis for future application, avoiding divergent interpretations during enforcement.

Duc Thao

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