Applying suspended sentences from the practice of Binh Phuoc province

3.2. Research tasks

To achieve the research objectives, the thesis needs to perform the following tasks:

- Research and analyze theoretical issues related to suspended sentences and application of suspended sentences.

- Analyze the provisions of criminal law, thereby revealing the content of criminal law provisions on suspended sentences and application of suspended sentences.

- Analyze and evaluate specific data, evaluate practical cases applying suspended sentences in Binh Phuoc province, limitations, shortcomings and causes of those limitations and shortcomings.

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- Propose solutions to properly apply suspended sentences in practice.

4. Research object and scope

4.1. Research subjects

The research object of the thesis is theoretical issues on the application of suspended sentences; the application of suspended sentences by competent authorities, mainly the Court sector, in the process of adjudicating criminal cases with offenders entitled to suspended sentences according to the provisions of criminal law through the practice of applying suspended sentences in Binh Phuoc province. From there, the study proposes solutions for the correct application of suspended sentences.

4.2. Scope of research

The thesis is researched from the perspective of criminal law science and criminal procedure law science on the application of suspended sentences by competent authorities, mainly the Court, in the process of adjudicating criminal cases with offenders entitled to suspended sentences according to the provisions of law through the practice of applying suspended sentences in Binh Phuoc province.

- Regarding space: Survey and research on issues of applying suspended sentences in Binh Phuoc province.

-About time: research data from 2016 to the end of 2020.

5. Theoretical basis and research methods

5.1. Theoretical basis

The thesis was researched by the author based on the viewpoints of dialectical materialism and historical materialism of Marxism - Leninism, Ho Chi Minh thought; the viewpoints of our Party and State on the provisions of criminal policy in general, on crime and punishment as well as the provisions of law on the application of suspended sentences in particular in accordance with the judicial reform strategy until 2020 as the research methodology.

5.2. Research methods

In addition to the skillful use of the above theoretical basis, in the process of researching the application of suspended sentences in Binh Phuoc province, the author also uses a scientific and interwoven combination in a comprehensive set of specific research methods such as: Analysis and synthesis method; statistical method; comparison method; method of combining and comparing theory and practice.

At the same time, the thesis also uses a combination of several methods from other sciences such as: social statistics method, logical method.

6. Theoretical and practical significance of the thesis

6.1. Theoretical significance

The research results of the thesis contribute to clarifying some theoretical issues on the application of suspended sentences to help readers fully and correctly understand as well as perceive more deeply the theoretical issues on the application of suspended sentences such as: concept, conditions, meaning of the suspended sentence regime, history of formation and development of the suspended sentence regime...

6.2. Practical significance

The thesis has reference value for building viewpoints on criminal policy in general and Vietnamese criminal law on suspended sentences in particular as well as the application of suspended sentences in practice.

The research results of the thesis also have reference value for teaching and learning, research on criminal policy, provisions of criminal law on suspended sentences at People's Police training institutions, bachelor of law and master of law training institutions in our country.

7. Structure of the thesis

In addition to the introduction, conclusion and list of references, the thesis includes the following 3 chapters:

Chapter 1. Theoretical issues on the application of suspended sentences

Chapter 2. Practical application of suspended sentences at the People's Courts of Binh Phuoc province

Chapter 3. Solutions for properly applying suspended sentences in practice

Chapter 1

THEORETICAL ISSUES ON APPLYING SUSPENDED SENTENCES

1.1. General awareness of the application of suspended sentences

1.1.1. Concept, characteristics, and meaning of suspended sentence

1.1.1.1. Concept of suspended sentence

According to the provisions of Clause 1, Article 65 of the 2015 Penal Code: “When imposing a prison sentence of no more than 03 years, based on the offender's personal background and mitigating circumstances of criminal responsibility, if it is deemed unnecessary to enforce the prison sentence, the Court shall grant the offender a suspended sentence and set a probation period of 01 to 05 years and perform obligations during the probation period according to the provisions of the Law on Enforcement of Criminal Judgments.” [27, p. 45]. It can be seen that the Vietnamese Penal Code does not provide any concept related to suspended sentences.

The institution of suspended sentences from its inception in the Criminal Code of our country until the time it was officially stipulated in Article 44 of the 1985 Penal Code was a long step forward and there were very different views and concepts. Sometimes, the suspended sentence as prescribed by the Criminal Code was understood as a measure of "temporary suspension of the execution of the sentence" (in Article 10 of Decree No. 21/SL dated February 14, 1946) or as a measure of conditional suspension of punishment. Sometimes: The suspended sentence was understood as a measure of conditional exemption from serving a prison sentence (according to Resolution No. 01/1990/NQ-HDTP of the Supreme People's Court). Or according to Official Dispatch No. 36/NCPL dated April 30, 1992 of the Supreme People's Court, explaining the institution of suspended sentences as follows: "The criminal law of our country has never considered "suspended sentence" as a type of punishment. In the system of legal documents and in all criminal laws of our country that have been issued since the August Revolution until now, which have provisions on crimes and penalties, there is no provision for the type of penalty called “suspended sentence”. The Criminal Code was passed by the National Assembly on June 27, 1985 and

effective from January 1, 1986, Chapter V stipulates penalties and Article 20 on penalties stipulates that there are 7 main types of penalties, respectively: "warning; fine; non-custodial reform; reform in a military disciplinary unit; fixed-term imprisonment; life imprisonment; death penalty". Article 16 of the 1985 Penal Code also stipulates 7 specific additional penalties as follows: "prohibition from holding certain positions, doing certain occupations or jobs; prohibition of residence; probation; deprivation of certain civil rights; deprivation of military titles; confiscation of property, fine" (for cases where it is not applied as the main penalty). Thus, in the 1985 Penal Code, there are 7 main penalties and 7 additional penalties, but there is absolutely no "suspended sentence". This means that "suspended sentence" is not a type of penalty. In Resolution No. 01/HDTP dated October 18, 1990 of the Council of Judges of the Supreme People's Court, the following concept of suspended sentence was introduced: "A suspended sentence is a conditional exemption from serving a prison sentence, that is, based on the personal background of the convicted person and the mitigating circumstances of criminal responsibility, the Court will exempt the convicted person from serving the sentence if during the probation period, that person does not commit a new crime". In reality, there are many cases where, due to not fully understanding the content and connotation of a suspended sentence, and not fully understanding a suspended sentence, some people have misunderstood that a suspended sentence is a type of punishment, and even think that a suspended sentence is a type of suspended prison sentence, incorrectly calling a suspended sentence "suspended prison" and considering that "suspended prison" is lighter than "imprisonment". There is only a "suspended sentence" with the meaning of "conditional exemption from serving a prison sentence", not a "suspended prison sentence" with the nature of a type of punishment lighter than imprisonment".

Apart from the concept of suspended sentence understood as a measure of "temporary suspension of execution of sentence" (in Article 10 of Decree No. 21/SL dated February 14, 1946) or a measure of "conditional suspension of sentence" (Circular No. 2308/NCPL dated December 1, 1961 of the Supreme People's Court), no author has proposed a concept of suspended sentence that is different from or contrary to the explanation and guidance of the Supreme People's Court in Resolution No. 17 01/1990/NQ-HDTP of the Supreme People's Court, but all agree that "suspended sentence is a measure" (Circular No. 2308/NCPL dated December 1, 1961 of the Supreme People's Court).

The law of conditional exemption from serving a prison sentence…”. Author Dinh Van Que defined suspended sentence as “a measure of conditional exemption from serving a prison sentence, applied to people sentenced to imprisonment of no more than three years, based on the personal background of the offender as well as mitigating circumstances, if it is deemed unnecessary to force the offender to serve a prison sentence”. [24] Or Associate Professor, Dr. Le Van Cam said: “suspended sentence is understood as a measure of exemption from serving a prison sentence with a certain probation period for those who are considered to be at fault in committing a crime when there are sufficient grounds and specific conditions prescribed by criminal law”.

In order to uniformly apply the suspended sentence regime, the Council of Judges of the Supreme People's Court issued Resolution No. 02/2018/NQ-HDTP TANDTC dated May 15, 2018 providing specific and detailed guidance on the application of Article 65 of the Penal Code regarding suspended sentences. Accordingly, in addition to the first condition that the offender is sentenced to imprisonment for no more than 03 years, the person enjoying a suspended sentence must have many mitigating circumstances. Many mitigating circumstances of criminal liability according to the provisions of the Penal Code are guided to have 02 or more mitigating circumstances of criminal liability and no aggravating circumstances of criminal liability, including at least one mitigating circumstance of criminal liability as prescribed in Clause 1, Article 51 of the Penal Code 2015. In case the offender has both mitigating circumstances of criminal liability and aggravating circumstances, the mitigating circumstances of criminal liability must be more than the aggravating circumstances by 02 or more circumstances, including at least 01 mitigating circumstance of criminal liability as prescribed in Clause 1, Article 51 of the Penal Code 2015. In addition, the offender must have a good personal history and a clear place of residence (permanent or temporary) for competent agencies and organizations to supervise and educate, then the Court can consider applying a suspended sentence.

Thus: Suspended sentence is understood as a measure of conditional exemption from serving a prison sentence... suspended sentence demonstrates the humane nature of Vietnamese criminal law, has the effect of encouraging convicted people to self-cultivate and work in the community with the active help of the social community as well as their families at the same time.

warning them that if they commit a new crime during the probation period, they will be forced to serve the prison sentence for the sentence already announced". From the above viewpoints on suspended sentences and the content of suspended sentences stipulated in Clause 1, Article 65 of the 2015 Penal Code, the concept of suspended sentences can be presented as follows: Suspended sentences are a special criminal legal institution, called a measure of conditional exemption from serving a prison sentence, decided by the People's Court on behalf of the State based on the level of imprisonment announced for the offender not exceeding three years, based on the offender's personal background, the circumstances mitigating criminal responsibility, the People's Court will grant that person a suspended sentence, not forcing them to serve the sentence in prison and at the same time set a probation period of one to five years.

Thus, suspended sentences have the effect of encouraging convicted people to work and reform themselves in the community to reform, with the supervision, education, and active assistance of the local authorities where the offender resides or works, or with the assistance of family, relatives, friends, and society. Suspended sentences are one of the specific manifestations of our country's criminal policy with the motto of "punishment combined with education" and demonstrate the humanism of socialism in our State's legal system. Proper application of the provisions on suspended sentences will have the good effect of not forcing convicted people to isolate themselves from social life but also achieving the goal of educating and reforming them to become useful people for society, integrating into the community, awakening their awareness of complying with the policies of the Party and the laws of the State, and complying with the rules of socialist life.

1.1.1.2. Characteristics of suspended sentences

According to Decree 02/2018/ND-CP dated May 15, 2018 of the Government guiding the execution of suspended prison sentences, the execution of suspended prison sentences aims to create conditions for people with suspended sentences to study, work, live as well as demonstrate their repentance and rehabilitation in a normal social environment, under management and supervision.

education of agencies, organizations, military units, educational and training establishments or the People's Committees of communes, wards and towns where the person serving a suspended sentence works, studies or resides and his/her family. The person serving a suspended sentence must undergo probation under the management, supervision and education of the supervising and educational agencies, organizations and his/her family during the probation period. With the general purpose of a suspended sentence being to demonstrate the leniency of the law, the execution of a suspended sentence still has its own characteristics, specifically:

First: Applying suspended sentences in VAHS trials is a criminal procedural activity in which the Court, on behalf of State power, decides on the punishment for a criminal. This is the process by which the People's Court, through the Trial Panel, individualizes criminal law norms for one or more criminal acts of the offender in a criminal case so that the Trial Panel can decide on the punishment and consider whether or not to give the convicted person (prisoner) a suspended sentence.

Second, the application of suspended sentences is decided directly at the trial. According to the provisions of criminal law and criminal procedure, the trial activities of the Court are conducted directly at the criminal trial; on that basis, the application of suspended sentences is essentially the application of criminal law by the Court which must be decided immediately at the trial. Thereby, it demonstrates the nature of the Socialist Republic of Vietnam as a people's democratic state through many different activities, including the trial activities of the People's Court, because: The trial activities of the Court through trials, including criminal trials, are not only a place to demonstrate the solemnity of the law, but also a place where the masses, relevant agencies such as the press, radio and television directly witness the rights and obligations of the defendant, of those participating in the proceedings at the trial, of the State are guaranteed to be implemented, as well as protected by law. At the Court, all developments, processes, and nature of the case

Applying suspended sentences from the practice of Binh Phuoc province - 2

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