Compared with the provisions of Article 53 of the 1985 Penal Code on automatic deletion of criminal records, the provisions of Clause 2, Article 64 show that all sentences for crimes other than those specified in Chapter XI - Crimes against national security and Chapter XXIV - Crimes undermining peace, crimes against humanity and war crimes, are subject to automatic deletion of criminal records. Previously, only sentences of up to five years in prison and sentences not subject to imprisonment such as: Warning, fine, non-custodial reform are subject to automatic deletion of criminal records. Other sentences with a prison sentence of five years or more are subject to deletion according to the Court's decision.
According to the provisions of Point 2, Article 64, those who are warned, fined, reformed without detention or imprisoned but are given suspended sentences for crimes other than those specified in Chapter XI and Chapter XXIV and do not commit new crimes within one year from the date of completion of the sentence or from the date of expiration of the statute of limitations for execution of the sentence are also eligible for automatic sentence remission. In this case, if compared with the provisions of Article 53 of the 1985 Penal Code, there are significant differences. That is, while the 1985 Penal Code stipulates the deletion of criminal records for people who are given suspended sentences as a separate item (Clause 2, Article 53), the 1999 Penal Code stipulates the deletion of criminal records for people who are given suspended sentences together with the provisions for people who are given warnings, fines, etc. According to the 1985 Penal Code, people who are given suspended sentences will have their criminal records deleted if after three years from the date of the end of the probation period, but now, according to the 1999 Penal Code, that period is only one year. The one-year period is also applied to delete criminal records for people who are given warnings, fines or non-custodial reform, while according to the 1985 Penal Code it is three years.
If, according to the 1985 Penal Code, for those sentenced to up to five years in prison, the applicable time limit to expunge their sentence is five years, then now according to the 1999 Penal Code, for those sentenced to up to three years in prison,
The time limit for expunging their criminal records is only three years. This provision of the 1999 Penal Code has shortened the time limit for expunging criminal records for those convicted of less serious crimes. This is consistent with the policy of criminal differentiation stipulated in Clause 2, Article 8 of the 1999 Penal Code. This provision also aims to create the ability for those who have committed less serious crimes to quickly reintegrate into the community and become honest people and useful people to society.
The 1999 Penal Code maintains the five-year period for expungement of criminal records for those sentenced to imprisonment of more than three years to five years as stipulated in the 1985 Penal Code. It should also be noted that the five-year period is also applied to expungement of criminal records for those sentenced to imprisonment of more than five years to fifteen years. Meanwhile, according to the 1985 Penal Code, those sentenced to imprisonment of more than five years must go through ten years from the date of completion of the sentence or from the date the sentence has expired and have not committed a new crime within that period to be considered for expungement of criminal records. Now, according to the 1999 Penal Code, the longest period for expungement of criminal records is only seven years in cases where the prison sentence is more than fifteen years and the criminal record is automatically expunged.
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According to the above analysis, it can be said that the time periods: One year, three years, five years and seven years are determined based on the type of punishment and the level of punishment that the Court has imposed on the offender. This also means that the more severe the sentence, the longer the probation period to see if a convicted person is automatically cleared of his or her criminal record.
Regarding the time limit, we need to pay attention to the time milestones, that is, the completion of the sentence and the expiration of the statute of limitations for the execution of the sentence. First of all, regarding the time limit for completing the sentence, according to Article 67 of the 1999 Penal Code, the time limit for considering the deletion of the criminal record is based on the main penalty imposed. However, this time limit is calculated from the date of completion of the sentence or from the date of expiration of the statute of limitations.
execution of that judgment. Completion of the judgment does not only mean completion of the main penalty but also includes completion of the additional penalty and other decisions of the Court. In case the person is exempted from serving the remaining penalty, it is also considered to have completed the penalty. Regarding the issue of warning penalty, immediately after the judgment comes into legal effect, the judgment is considered to be completed.
Regarding the issue of the expiration of the statute of limitations for execution of a judgment, according to Article 55 of the 1999 Penal Code, the statute of limitations for execution of a judgment is calculated from the date the judgment takes legal effect and that time is:
- Five years in case of fine, non-custodial reform or imprisonment of three years or less;
- Ten years for cases of imprisonment from over three years to fifteen years;
- Fifteen years for cases of imprisonment from over fifteen years to thirty years.
- The application of the statute of limitations to cases of life imprisonment or death penalty, after the fifteen-year period has passed, shall be decided by the Chief Justice of the Supreme People's Court upon the proposal of the Chief Prosecutor of the Supreme People's Procuracy.
When the above statute of limitations expires (and there is no intentional evasion or new crime), the convicted person will begin to count the time limit for automatic criminal record deletion. In addition to requiring the convicted person to serve the above time limit, the legislator also requires the convicted person to comply with another condition in order to be considered for automatic criminal record deletion, which is, not to commit a new crime within the stated time limit.
2.3.2. Criminal record deletion by court decision
Article 65 of the 1999 Penal Code stipulates:
The court decides to expunge the criminal record of those convicted of crimes specified in Chapter XI and Chapter XXIV of this Code, based on the nature of the crime committed, the personal background, the attitude of law compliance and the work attitude of the convicted person in the following cases:
a) Having been sentenced to imprisonment for up to three years without committing a new crime within three years from the date of completion of the sentence or from the date of expiration of the statute of limitations for execution of the sentence;
b) Having been sentenced to imprisonment from more than three years to fifteen years without committing a new crime within seven years from the date of completion of the sentence or from the date of expiration of the statute of limitations for execution of the sentence;
c) Having been sentenced to imprisonment for more than fifteen years without committing a new crime within ten years from the date of completion of the sentence or from the date of expiration of the statute of limitations for execution of the sentence.
2. A person whose application for criminal record expungement is rejected by the Court for the first time must wait one year before applying for criminal record expungement; if the application is rejected for the second time, then two years must pass before applying for criminal record expungement [7].
Based on the above provisions, it can be affirmed that the Court's decision to expunge criminal records is only applicable to those convicted of crimes against national security, crimes against peace, crimes against humanity and war crimes. In addition to the nature of the crime committed, the Court, when deciding to expunge criminal records or not, must also base on the personal background, attitude of law compliance and work attitude of the convicted person in the above cases.
By a simple comparison, we also see that, regarding the probationary period between automatic criminal record deletion and criminal record deletion by court decision, the probationary period of criminal record deletion by court decision
The court is longer. This is explained by the fact that the crimes subject to criminal record deletion decided by the Court are more serious in nature, and in part, this provision demonstrates the consistent criminal policy of our State towards crimes against national security and crimes against human interests as stipulated in Chapter XI and Chapter XXIV of the 1999 Penal Code.
Regarding the conditions that a convicted person must comply with when wanting to be considered for criminal record deletion, compared to automatic criminal record deletion, there are certain differences stemming from the nature of the type of crime stipulated in Chapters XI and XXIV of the 1999 Penal Code. That is, in addition to the mandatory condition that the probation period is calculated from the time the sentence is completed and the condition of not committing a new crime during that period, in order to decide to delete the criminal record for those convicted according to the provisions of Article 65, the Court must also base on the nature of the crime committed, the personal background, the attitude of law compliance and the work attitude of the convicted person. The question here is on what basis, or what standard, does the Court assess the nature of the crime committed, the personal background, the attitude of law compliance and the work attitude of the convicted person? We can answer this question based on the provisions of criminal law in general. That is, the nature of the crime committed and the criminal's personality have been assessed and reflected in the Court's judgment. As for the convicted person's attitude towards law compliance and work attitude, the Court will rely on the confirmation results of the local authorities where the convicted person works or resides. Joint Circular No. 02 dated August 1, 1986 guiding the removal of criminal records stipulates:
Only consider as not strictly complying with policies and laws, cases that have been administratively sanctioned for illegal acts but not to the extent of criminal prosecution and have not made corrections. For cases that are only minor violations, it should not be based on that to not allow the conviction to be expunged [13].
Regarding the statute of limitations for execution of judgments, it is also necessary to note a number of issues. According to Resolution No. 01 dated August 4, 2000 of the Council of Judges of the Supreme People's Court guiding the application of a number of general provisions of the 1999 Penal Code, it is stipulated that: When considering whether the statute of limitations for execution of judgments has expired or not to consider the deletion of criminal records, it is necessary to base on Article 55 of the 1999 Penal Code. It is especially important to note that the statute of limitations for execution of criminal judgments in cases of fines was not previously stipulated in the 1985 Penal Code, so it was enforced according to the Ordinance on the enforcement of civil judgments, which has now been supplemented at Point a, Clause 2, Article 55 of the 1999 Penal Code, and according to this provision, the statute of limitations for execution of judgments in cases of fines is five years from the date the judgment or decision of the Court takes legal effect.
For other decisions on property in criminal judgments: Compensation for damages, confiscation of property, court fees, etc., they are still enforced according to the provisions of the Civil Judgment Enforcement Ordinance. Therefore, to consider whether the statute of limitations for enforcement of judgments on property in criminal judgments has expired or not, it is necessary to distinguish as follows:
- The statute of limitations for execution of judgments on property in criminal judgments has expired, if the time limit prescribed in Article 21 of the Ordinance has expired without objective obstacles, but the person subject to execution of judgment has not submitted a petition to the execution agency to request execution of judgment or in the case where the Head of the execution agency must proactively issue a decision to execute the judgment, but has not issued a decision to execute the judgment.
- After one year from the date the judgment or decision of the Court comes into legal effect, if the individual whose judgment is enforced does not submit a petition to the enforcement agency to request enforcement of the decision on the return of property or compensation for damage to socialist property and the head of the enforcement agency does not proactively issue a decision to enforce the judgment according to the provisions of the Ordinance, the Court's decision will come into legal effect.
- If within the time limit prescribed in Article 21 of the Ordinance, the individual whose judgment is enforced or the agency or organization whose judgment is enforced has proactively issued a decision to enforce the judgment, then only when the convicted person has completed the execution of the decisions on property or has a decision to suspend the execution of the judgment can it be considered to have completed the execution of the Court's decisions on property in the criminal judgment.
When studying the time limit for expunging a criminal record according to the Court's decision, we found that, unlike the automatic expungement of a criminal record, if the convicted person does not commit a new crime within the time limit prescribed by law, the criminal record will be automatically expunged. The time limit prescribed in this case is the time limit for expunging a criminal record and no one has the right to change or extend it.
In the case of criminal record deletion decided by the Court, the statutory time limit is only the time limit for the convicted person to request and the Court to consider and decide. The Court does not necessarily decide to delete the criminal record within that time limit but can extend it.
Thus, the time limits prescribed in Article 64 and Article 65 of the 1999 Penal Code are different in nature. We believe that Article 65 of the 1999 Penal Code, which stipulates that the removal of criminal records for persons convicted of crimes against national security, crimes undermining peace and war crimes by the Court may be reasonable in the current context of our country. However, the regulation of a maximum period of ten years for consideration to decide on the removal of criminal records is too long and inconsistent with the general spirit of the Penal Code. We can absolutely prescribe a shorter time limit to be consistent with the humane nature of criminal law and to encourage the progress of convicted persons. In case of necessity, the Court can extend that time limit by rejecting the application for removal of criminal records, if the convicted person does not meet the conditions.
Regarding the procedure for expunging criminal records, it is carried out according to the provisions of Circular No. 02 dated August 1, 1986 of the Supreme People's Court, the Ministry of Justice, and the Ministry of the Interior on expunging criminal records. In general, the procedure for expunging criminal records according to the Court's decision has the following common characteristics: First , the Court has the right to issue a decision to expunge
criminal records for those convicted or have the right to reject their application for expungement of criminal records; secondly , for subsequent requests for expungement of criminal records, convicted persons must submit documents proving that they have overcome previous shortcomings that were the reason why their criminal records have not been expunged; thirdly, there is an opinion from the People's Procuracy at the same level on whether the convicted person is eligible for expungement of criminal records; fourthly, the Court's decision on expungement of criminal records may be protested by the People's Procuracy at the same level according to the appellate procedure. If the decision has come into legal effect and is found to be erroneous, it can be protested according to the Chief Justice procedure.
2.3.3. Criminal record deletion in special cases and how to calculate the time limit for criminal record deletion
The question here is, the time limit for considering the deletion of criminal records is stipulated in the 1999 Penal Code, but are there any exceptions? That is, are there any cases where a convicted person will have his/her criminal record automatically deleted according to the provisions of Article 64. To answer this question, we base on Article 66 of the 1999 Penal Code: "In cases where a convicted person shows clear signs of progress and has made achievements, and is proposed by the agency or organization where he/she works or the local authority where he/she permanently resides, the Court may delete his/her criminal record if he/she has served at least one-third of the prescribed term" [7]. According to this provision, a convicted person must serve a minimum period of one-third of the prescribed term before being considered for early deletion of his/her criminal record when he/she fully meets other conditions that the legislator has foreseen. Thus, in this case, early criminal record deletion in special cases has automatically become criminal record deletion decided by the Court. Not all cases when agencies, organizations or local authorities request criminal record deletion will be allowed by the Court. The law stipulates that the Court can delete criminal records or not delete criminal records for convicted persons. In other words, criminal record deletion in special cases is one of the forms of criminal record deletion decided by the Court.