You are viewing: What is a suspended sentence?
A suspended sentence is a criminal legal institution related to serving a sentence. The fact that offenders receive suspended sentences is not only benevolent to them but also creates favorable conditions for correction and rehabilitation at home. Therefore, giving the offender a suspended sentence shall be considered and decided by the Court. However, in many cases, the court does not declare the offender to enjoy a suspended sentence immediately due to various reasons (the offender is eligible for a suspended sentence), leading to the offender needing to go through the procedure. to apply for a suspended sentence. The following are the conditions and procedures for applying for a suspended sentence under Vietnamese law
3 What are the conditions to apply for a suspended sentence?4 What is the procedure for applying for a suspended sentence?
Penal Code 2015 Amendment and Supplement 2017 Criminal Procedure Code 2015 Resolution No: 02/2018/NQ-HDTP guiding the application of Article 65 of the 2015 Penal Code on suspended sentences
What is a suspended sentence?
suspended sentence is a criminal legal system related to the execution of punishment. Suspension sentence is understood as the temporary exemption from serving the conditional imprisonment penalty, the punishment for those who violate the law of a less serious degree, when sentenced to imprisonment for not more than three years, have good character, have many extenuating circumstances (from 2 or more circumstances), and deems that it is not necessary to isolate the offender from society but still can be reformed, the court may exempt him from prison sentence but can self-reform. created under the supervision, management and education of the local government of residence.
During the probationary period, if the suspended sentence again commits a new crime, the court shall decide that the sentenced person must serve the prison sentence as stated in the old judgment, combined with the penalty of the new sentence. If during the probationary period, the beneficiary makes progress, the court can shorten or terminate the probation period, the suspended sentence holder is exempted from serving the entire penalty and has his criminal record cleared just like other cases. cases still have to be reformed in other prisons when fully satisfying the conditions prescribed by law.
What are the conditions to apply for a suspended sentence?
Pursuant to Article 2 of Resolution No. 02/2018/NQ-HDTP guiding the application of article 65 of the Penal Code on suspended sentences, offenders are entitled to suspended sentences when all of the following conditions are met:
Being sentenced to imprisonment for not more than 3 years Having a good character Having at least 02 extenuating circumstances of penal liability, including at least 01 extenuating circumstance for penal liability specified in Clause 1, Article 51 of the Penal Code and there are no circumstances aggravating the penal liability specified in Clause 1, Article 52 of the Penal Code. Having a clear place of residence or a stable workplace for the supervision and education of competent agencies or organizations. .Considering that there is no need to force the execution of prison sentences if the offenders are capable of self-education and the suspension of sentences does not pose a danger to society; does not adversely affect security, social order and safety Not in the case of not being entitled to a suspended sentence according to Article 3 of Resolution No. 02/2018/NQ-HDTP
What are the conditions to apply for a suspended sentence?
Imprisonment for not more than 3 years
The prison sentence is not more than 3 years, regardless of whether the crime is less serious, serious, or especially serious… Thus, the first basis for the Court to determine whether to enjoy a suspended sentence or not is not correct. is a person sentenced to imprisonment for 3 years or less. In case a person is tried in the same time for more than one crime with a total prison sentence of less than 3 years, he/she is still not entitled to a suspended sentence, except in the case of a person under 18 years of age (who is not eligible for a suspended sentence – this is a change). compared with the Criminal Law Amendment 1999).
Have a good character
Offenders are considered to have a good character if, in addition to this crime, the offenders always strictly abide by the policies and laws and fulfill the obligations of citizens in the place of residence or work.
For a person who has been convicted but is considered to have no criminal record, who has been convicted but whose criminal record has been expunged, who has been administratively sanctioned or disciplined for which time is considered is not yet sanctioned for an administrative violation, has not been disciplined by the date of this crime, it has been more than 6 months since the date of this crime, if it is considered that the nature and seriousness of the newly committed crime is less serious or If the offender is an accomplice who plays an insignificant role in the case and meets other conditions, he/she can also serve a suspended sentence.
There are at least 2 mitigating circumstances of criminal liability
The offender must have 2 or more extenuating circumstances, of which at least 1 is specified in Clause 1, Article 51 of the Penal Code, specifically the following:
The offender has prevented or lessened the harm of the crime; The offender has voluntarily repaired, compensated for the damage or remedied the consequences; Committing the crime in case of exceeding the limit of legitimate defense; Committing the crime in cases of exceeding the requirements of the urgent situation; Committing the crime in cases of excess of necessity when arresting the offender; Committing the crime in case of mental agitation due to the victim’s illegal acts committed a crime because of extremely difficult circumstances but not caused by oneself; Committing the crime but not causing damage or causing minor damage; Committing the crime for the first time and in less serious cases; Committing the crime because being threatened or coerced by others; Committing the crime in cases of limited cognitive ability that is not caused by his own fault; Committing the crime from being outdated; The offender is a pregnant woman; The offender is persons aged full 70 years or older; The offender is a person with severe or particularly severe disability; The offender is a person with a disease that limits his ability to recognize knowledge or ability to control their behavior; Offenders confess; Offenders sincerely report and repent; Offenders actively cooperate with responsible agencies in detecting crimes or in the process of solving the case; The offender has made atonement; The offender is a person with outstanding achievements in production, combat, study or work; The offender is a person with meritorious services. life or father, mother, wife, husband, children of martyrs.
There are no circumstances aggravating criminal liability
Offenders who wish to enjoy suspended sentences must not have aggravating circumstances specified in Clause 1, Article 52 of the Penal Code, specifically, without the following circumstances:
Committing crimes in an organized manner; Committing crimes of a professional nature; Taking advantage of positions and powers to commit crimes; Committing crimes of a hooligan nature; Committing crimes for despicable motives; Deliberately committing crimes to the end; Committing the crime twice or more; Dangerous recidivism or recidivism; Committing the crime against a person under 16, pregnant women or a person full 70 years of age or older; Committing the crime against a person who is unable to defend himself , people with severe or particularly severe disabilities, people with limited cognitive abilities or those who depend on them physically, mentally, at work or in other ways; Taking advantage of the situation of war or emergency to commit crimes; to use sophisticated, cunning or cruel tricks to commit crimes; to use tricks or means capable of causing harm to many people people to commit crimes; Inciting people under the age of 18 to commit crimes; Having cunning or aggressive actions in order to evade or conceal crimes.
NOTE: In case there are aggravating circumstances, the number of penal liability extenuating circumstances must be more than 02 or more aggravating circumstances, including at least 01 extenuating circumstance. the provisions of Clause 1, Article 51 of the Penal Code, they can still enjoy suspended sentences.
Have a clear place of residence or a stable place of work
A place of obvious residence is a place of temporary or permanent residence with an address specifically determined in accordance with the Law on Residence where the person serving a suspended sentence returns to reside and live regularly after serving the suspended sentence.
A stable workplace is a place where the offender works for a term of 01 year or more under a labor contract or under a decision of a competent agency or organization.
Regarding the consideration that there is no need to force the execution of a prison sentence (with conditions for consideration)
So what is considered that there is no need to be forced to serve a prison sentence? If the offender has the ability to self-reform and serving them a suspended sentence does not pose a danger to society; If they do not adversely affect security, social order and safety, the Court will consider giving them suspended sentences.
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Conditions and procedures for serving suspended sentence
Not in the case of not being entitled to a suspended sentence
Pursuant to Article 3 of Resolution No. 02/2018/NQ-HDTP, the following cases are not entitled to a suspended sentence:
Offenders are the masterminds, leaders, commanders, stubbornly opposers, thugs, use cunning tricks, are professional in nature, take advantage of positions and powers for personal gain, and intentionally cause special consequences. particularly serious. The person who commits the crime has fled and has been wanted by the procedure-conducting agencies. The person serving a suspended sentence commits a new crime during the probationary period; a person currently serving a suspended sentence shall be tried for another crime committed before receiving the suspended sentence. Offenders are tried at the same time for more than one crime, except where the offender is under 18 years old. commit the crime more than once, except where the offender is under 18 years old. The offender falls into the case of dangerous recidivism or recidivism.
Thus, offenders who want to enjoy a suspended sentence must satisfy the conditions as prescribed above. However, whether or not to receive a suspended sentence depends on the final decision of the Court.
What is the procedure for applying for a suspended sentence?
Offenders who meet the conditions for enjoying suspended sentences are entitled to enjoy suspended sentences instead of serving prison sentences. In this case, the person who has the right to appeal for a suspended sentence can make an appeal and send it to the first instance court that has heard the case or the Court of Appeal to request a suspended sentence. Procedures for applying for suspended sentence are prescribed in the Criminal Procedure Code 2015.
Who has the right to appeal the suspended sentence?
Pursuant to Article 331 of the 2015 Criminal Procedure Code, the following subjects have the right to appeal to the court to receive a suspended sentence:
Defendants, victims and their representatives have the right to appeal against first-instance judgments or decisions. Defense counsels have the right to appeal to protect the interests of persons under 18 years of age, persons with mental or physical disabilities. the substance that I defend
As such, the accused and their representatives have the right to appeal against the first-instance judgment or decision to apply for a suspended sentence in accordance with the law. For the 18-year-old married person, who has mental or physical weaknesses (sickness, injury, mental weakness, etc.), the defense counsels for these subjects have the right to appeal to obtain the sentence hang.
Dossier of appeal to enjoy suspended sentence
Pursuant to Article 332 of the 2015 Criminal Procedure Code providing for the order and procedures for appeals, an appeal file for a suspended sentence includes:
An appeal application for a suspended sentence (made according to the form)Additional evidence and documents to prove that there are conditions for enjoying the suspended sentence.
Regarding filing an appeal:
1. The appellant must send his/her appeal petition to the Court that conducted the first-instance trial or the Court of Appeal.
In case the defendant is being held in temporary detention, the Superintendent of the Detention Center or the Head of the Detention House must ensure that the defendant exercise the right to appeal, receive the appeal petition and transfer it to the first-instance Court which has issued the judgment or decision. appealed.
The appellant may present his appeal directly to the Court that has heard the first instance or the Court of Appeal. The court must make a record of the appeal according to the provisions of Article 133 of this Code..”
After receiving the appeal, the Court will consider whether the appeal is grounded or not and proceed to open the Court of Appeal session. At the appellate court hearing, according to the provisions of law and the conditions that the person is sentenced to prison. The court will consider whether the sentenced person is entitled to a suspended sentence.
Time limit for appeal to enjoy suspended sentence
Clauses 1 and 2 of Article 333 provide for the time limit for appeals:
1. The time limit for appealing against a first-instance judgment is 15 days from the date of judgment pronouncement. For defendants and involved parties who are absent from the court hearing, the time limit for appealing shall be counted from the date they receive the judgment or the date the judgment is posted up in accordance with law.
2. The time limit for appealing against a first-instance decision is 07 days from the date the person with the right to appeal receives the decision.
Thus, the time limit for appealing against the first-instance judgment is 15 days from the date of pronouncement of the judgment, 07 days for the first-instance decision.
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