Tiếng Việt
TABLE OF CONTENTS
1. What is a suspended sentence?
2. Conditions for enjoying a suspended sentence according to legal provisions
3. Cases that are not eligible for suspended sentences according to legal provisions
1. What is a suspended sentence?
According to Article 1 of Resolution No. 02/2018/NQ-HDTP dated May 15, 2018 Guiding the application of Article 65 of the Penal Code on suspended sentences, the Council of Judges of the Supreme People’s Court stipulates: “A suspended sentence is a measure of exemption from serving a conditional prison sentence, applied by the Court to offenders sentenced to imprisonment for not more than 3 years, based on the offender’s identity and mitigating circumstances, considering that there is no need to force them to serve a prison sentence.”
Thus, a suspended sentence is not a punishment, but a measure of conditional exemption from serving a prison sentence, applied to people sentenced to a prison term of no more than 03 years.
2. Conditions for enjoying a suspended sentence according to legal provisions
Pursuant to Article 65 of the 2015 Penal Code, amended and supplemented in 2017, which stipulates suspended sentences:
“Article 65. Probation
1. Where a person is sentenced to imprisonment of up to 03 years, in consideration of the offender’s records and mitigating factors, the Court might give probation of 1 – 5 years and request the convict to fulfill certain obligations during this period in accordance with the Law on criminal sentence execution if imprisonment is deem unnecessary.
2. During the probation period, the person put on probation shall be supervised and educated by the organization or agency for which he/she works or the local authority. The family of the convict has the responsibility to cooperate with such agency or organization or the local authority in supervising and educating him/her.
3. The court may impose additional sentences upon the person put on probation if provided for by the applied provision of law.
4. After the person put on probation has served half the duration of the probation and shows improvements, at the request of the supervising agency/organization, the Court shall consider reducing the probation period.
5. During the probation period, if the convict deliberately fails to fulfill his/her obligations twice or more as prescribed by the Law on criminal sentence execution, the Court might require him/her to serve the suspended imprisonment sentence. If the convict commits a new crime, the Court shall force him/her to serve a combined sentence of the suspended sentenced and the new sentence as prescribed in Article 56 hereof.”
According to Article 2 of Resolution No. 02/2018/NQ-HDTP supplemented by Point b Clause 1 Article 1 of Resolution 01/2022/NQ-HDTP, the conditions for persons sentenced to imprisonment to enjoy suspended sentences are stipulated as follows:
“Article 2. Conditions for persons sentenced to imprisonment to enjoy suspended sentences
Persons sentenced to imprisonment may be considered for suspended sentences when they meet the following conditions:
1. Sentenced to imprisonment for no more than 03 years.
2. Have a good personal history.
A person is considered to have a good personal history if, apart from this crime, the offender always complies with policies and laws and fully performs the obligations of a citizen at his/her place of residence and workplace.
For those who have been convicted but are considered to have no criminal record, those who have been convicted but have had their criminal record expunged, those who have been administratively sanctioned or disciplined and the time considered to have not been administratively sanctioned or disciplined as of the date of this crime has exceeded 06 months, if the nature and severity of the newly committed crime are considered to be less serious or the offender is an accomplice with an insignificant role in the case and all other conditions are met, a suspended sentence may also be granted.
3. There are 02 or more mitigating circumstances for criminal liability, including at least 01 mitigating circumstance for criminal liability as prescribed in Clause 1, Article 51 of the Penal Code and there are no aggravating circumstances for criminal liability as prescribed in Clause 1, Article 52 of the Penal Code.
In case of aggravating circumstances of criminal liability, the number of mitigating circumstances of criminal liability must be greater than the number of aggravating circumstances of criminal liability by 02 circumstances or more, including at least 01 mitigating circumstance of criminal liability as prescribed in Clause 1, Article 51 of the Penal Code.
4. Having a clear place of residence or a stable place of work for the competent agency or organization to supervise and educate.
A clear place of residence is a temporary or permanent place of residence with a specifically determined address according to the provisions of the Law on Residence where the person serving a suspended sentence resides and lives regularly after receiving a suspended sentence.
A stable place of work is a place where the offender works for a term of 01 year or more under a labor contract or according to a decision of a competent agency or organization.
5. It is deemed unnecessary to enforce a prison sentence if the offender is capable of self-reform and giving them a suspended sentence does not pose a danger to society; not adversely affect security, order and social safety.
6. When considering and deciding to grant a suspended sentence to the defendant, the Court must carefully and closely consider the conditions to ensure that the granting of a suspended sentence is in accordance with the provisions of law, especially for the cases guided in Clauses 2, 4 and 5, Article 3 of this Resolution”.
3. Cases that are not entitled to a suspended sentence according to the provisions of law
Pursuant to Article 3 of Resolution No. 02/2018/NQ-HDTP supplemented by Resolution 01/2022/NQ-HDTP stipulating cases that are not entitled to a suspended sentence:
“Article 3. Cases that are not entitled to a suspended sentence
1. The offender is the mastermind, leader, commander, stubbornly opposing, a thug, using cunning tricks, of a professional nature, taking advantage of his position and power for personal gain, intentionally causing particularly serious consequences.
2. The person who committed the crime has fled and has been wanted or requested to be wanted by the prosecuting agencies, except in cases where he has surrendered before the decision to bring the case to trial is made.
3. A person who is serving a suspended sentence commits a new crime during the probation period; a person who is serving a suspended sentence is tried for another crime committed before being served a suspended sentence.
4. A person who is tried for multiple crimes at the same time, except in one of the following cases:
a) The person who commits the crime is under 18 years of age;
b) The person who commits the crime is tried and convicted for 02 crimes, both of which are less serious crimes, or the person who commits the crime is an accomplice in the case with an insignificant role.
5. A person who commits a crime 02 times or more, except in one of the following cases:
a) The person who commits the crime is under 18 years of age;
b) All the crimes are less serious crimes;
c) Crimes committed by the offender as an accomplice in an insignificant role;
d) Crimes committed by the offender’s self-confession”.