In case the Court of First Instance grants a suspended sentence, the sentence is not appealed or protested according to the appellate procedure, then the starting point for calculating time is

Outstanding achievements awarded by the State with one of the following honorary titles: Hero of Labor, Hero of the Armed Forces, Heroic Vietnamese Mother, People's Artist, Meritorious Artist, People's Teacher, Meritorious Teacher, People's Physician, Meritorious Physician or other noble titles as prescribed by the State; the defendant is a war invalid or has relatives such as wife, husband, father, mother, child, brother, sister, or sibling who is a martyr; the defendant is disabled due to a work accident or while working with a disability rate of 31% or higher; the victim is also at fault; the damage is caused by the fault of a third party; the victim or the victim's legal representative requests a reduction in the sentence for the defendant in cases where only damage to the health or property is caused to the victim; the crime is committed in cases where it is due to an urgent work requirement as well as going to fight floods and provide emergency care. Clause 2, Article 46 of the Penal Code stipulates that these mitigating circumstances must be clearly stated in the judgment, because the mitigating circumstances stipulated in Clause 1, Article 46 stipulate common and typical circumstances reflecting the dangerous level of the criminal act; the personality of the offender, but it is impossible to stipulate all the individual and specific cases for each specific case. Therefore, the Penal Code stipulates that the application of Clause 2, Article 46 is a selective norm to apply mitigating circumstances of criminal responsibility in a direction favorable to the defendant.

Thus, the mitigating circumstances for consideration of a suspended sentence are those stipulated in Clause 1, Article 46 of the Penal Code, as well as the mitigating circumstances of criminal liability determined by the Court in each specific case in accordance with the provisions of Clause 2, Article 46 of the Penal Code.

Resolution No. 01/2013/NQ-HDTP dated November 6, 2013 of the Council of Judges of the Supreme People's Court guiding the application of Article 60 of the Penal Code on suspended sentences provides guidance:

“1. Only consider granting a suspended sentence to a person sentenced to imprisonment when all conditions are met.

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following event:

…

d) There are no aggravating circumstances of criminal liability as prescribed in Clause 1, Article 48 of the Penal Code and there are two or more mitigating circumstances of criminal liability, including at least one mitigating circumstance as prescribed in Clause 1, Article 46 of the Penal Code; if there is one aggravating circumstance of criminal liability, there must be three or more mitigating circumstances of criminal liability, including at least two mitigating circumstances as prescribed in Clause 1, Article 46 of the Penal Code.

Mitigating circumstances as prescribed in Clause 2, Article 46 of the Penal Code are circumstances guided in Point c, Section 5 of Resolution No. 01/2000/NQ-HDTP dated August 4, 2000 of the Council of Judges of the Supreme People's Court "Guidance on the application of a number of provisions in the General Part of the 1999 Penal Code";

...” [23, pp. 2,3]

This instruction is understood to only grant a suspended sentence when the offender has at least two or more mitigating circumstances, including at least one mitigating circumstance as prescribed in Clause 1, Article 46 of the Penal Code and no aggravating circumstances; if there is one aggravating circumstance, there must be three or more mitigating circumstances, including at least two mitigating circumstances as prescribed in Clause 1, Article 46 of the Penal Code.

In cases where it is not necessary to serve a prison sentence:

When applying a suspended sentence, the Court mainly relies on the three above-mentioned bases to conclude on the ability of the convicted person to self-educate and reform with the help of society and family. On the other hand, the Court must compare with the requirements of crime prevention and combat in each type of crime in the specific social environment of each period. The person enjoying a suspended sentence must be a person who is truly capable of self-improvement in a specific social environment, with no risk of re-offending.

offenders, due to the nature of the crime they committed as well as the negative influence of the surrounding subjects. Therefore, in this case, if they are not sent to prison, they will not pose a danger to society or have a negative impact on the fight against crime, and the work of reforming and educating the offenders is still effective, then they will be given a suspended sentence; Point d, Clause 1, Article 2 of Resolution No. 01/2013/NQ-HDTP dated November 6, 2013 of the Council of Judges of the Supreme People's Court guiding the application of Article 60 of the Penal Code on suspended sentences stipulates:

“d) Have the ability to reform themselves and if they are not sent to prison, they will not have a negative impact on the fight against crime, especially crimes related to corruption.” [23, p. 3].

Not causing danger to society or not adversely affecting the fight against crime, meaning that there is no longer danger to society and the educational work in society is also effective, then a suspended sentence is granted. On the contrary, in cases where, when assessing the nature of the behavior, the type of crime they committed as well as their personal circumstances, it is found that applying a suspended sentence to these cases is not feasible and ineffective because their danger to society still exists and their ability to reform themselves in the social environment is not high, then a suspended sentence is not granted. Clause 2, Article 2 of Resolution No. 01/2013/NQ-HDTP dated November 6, 2013 of the Council of Judges of the Supreme People's Court guiding the application of Article 60 of the Penal Code on suspended sentences stipulates:

“2. Suspended sentence shall not be granted in one of the following cases:

a) Offenders who are subject to severe punishment as prescribed in Clause 2, Article 3 of the Penal Code include: masterminds, leaders, commanders, stubborn opponents, hooligans, thugs, dangerous recidivists, those who take advantage of their positions and powers to commit crimes; offenders who use cunning tricks, have

organized, professional, intentionally causing serious consequences; committing especially serious crimes;

b) Being tried at the same time for multiple crimes;

c) The records show that in addition to the crime committed and brought to trial, they also committed another crime that was tried in another case or is being prosecuted, investigated, or indicted in another case;

d) The defendant on bail escaped during the trial preparation phase, the Court requested the investigation agency to issue a wanted notice.” [23, p. 3].

In the above cases, letting them educate and reform themselves will not bring about the desired results, but on the contrary, will endanger society and negatively affect the fight against crime.

1.2.2. Regulations on probation period

Clause 1, Article 65 of the 2015 Penal Code stipulates that the Court shall determine a probation period of one to five years for a person serving a suspended sentence. When deciding to grant a suspended sentence to a person serving a prison sentence, the Court must also declare a probation period for this person within the legal limits because the suspended sentence regime is only meaningful when the probation period has been declared and implemented in practice. That is a sufficient period of time for the person serving a suspended sentence to affirm his or her voluntary reform and education. On the other hand, the probation period of the suspended sentence also helps the Court have the opportunity to check the correctness of the application of the suspended sentence, through analyzing and evaluating necessary information from the agency or organization responsible for supervising and educating the person serving a suspended sentence. Therefore, declaring a probation period of a suspended sentence is mandatory, and it is not possible to grant a suspended sentence without exempting the probation period.

The probationary period of a suspended sentence is prescribed from one year to five years. In no case shall the Court impose a probationary period of less than one year or more than five years, nor shall it be less than the penalty.

sentenced. For example: A person sentenced by the Court to two years in prison with a suspended sentence, the probationary period that this person must serve must be a minimum of two years and a maximum of five years.

Regarding the calculation of the probation period of a suspended sentence, the 2015 Penal Code does not have specific provisions. However, based on the guidance in Section 6.4 of Resolution No. 01/2007/NQ-HDTP dated October 2, 2007 of the Council of Judges of the Supreme People's Court, based on the guidance in Article 3 of Resolution No. 01/2013/NQ-HDTP dated November 6, 2013 of the Council of Judges of the Supreme People's Court guiding the application of Article 60 of the 1999 Penal Code on suspended sentences, the probation period of a suspended sentence is applied as follows: When giving a person sentenced to imprisonment a suspended sentence, in all cases, the Court must determine a probation period of one to five years and distinguish as follows:

“a) In case a person sentenced to imprisonment is given a suspended sentence without being detained, the probation period is equal to twice the prison sentence but must not be less than one year and must not exceed five years.

b) In case a person sentenced to a suspended prison sentence has been detained, the prison sentence shall be subtracted from the time spent in detention to determine the remaining prison sentence to be served. The probation period in this case shall be twice the remaining prison sentence to be served, but shall not be less than one year and shall not exceed five years.” [22, p. 6]

Thus, the determination of the probation period of a suspended sentence according to the guidance in Resolution No. 01/2007/NQ-HDTP dated October 2, 2007 and Resolution No. 01/2013/NQ-HDTP dated November 6, 2013 of the Council of Judges of the Supreme People's Court is always definite, accurate and strict with the determination result being a single indicator.

Regarding the starting time for calculating the probation period, Article 4 of Resolution No. 01/2013/NQ-HDTP dated November 6, 2013 of the People's Court Judges Council

The Supreme People's Court guides the application of Article 60 of the 1999 Penal Code on suspended sentences as follows:

“The starting date for calculating the probation period is the date of the first sentence for suspended sentence; specifically as follows:

1. In case the Court of First Instance grants a suspended sentence and the judgment is not appealed or protested under the appellate procedure, the starting point for calculating the probation period is the date of the first instance judgment.

2. In case the Court of First Instance grants a suspended sentence and the Court of Appeal also grants a suspended sentence, the starting point for calculating the probation period is the date of the first instance judgment.

3. In case the Court of First Instance does not grant a suspended sentence and the Court of Appeal grants a suspended sentence, the starting point for calculating the probation period is the date of the appellate judgment.

4. In case the Court of First Instance grants a suspended sentence, the Court of Appeal does not grant a suspended sentence, but the Court of Cassation annuls the appellate judgment to re-try the appeal and the Court of Appeal grants a suspended sentence, the probation period is calculated from the date of the judgment of first instance.

5. In case the Court of First Instance or the Court of Appeal grants a suspended sentence, but the judgment of first instance or the judgment of appeal is annulled for re-investigation and then re-trial at first instance or re-trial at appeal, the Court of First Instance or the Court of Appeal still grants a suspended sentence, the probation period shall be calculated from the date of the judgment of first instance or the subsequent judgment of appeal according to the instructions in Clauses 1, 2, 3 and 4 of this Article.”[23, p. 4]

Thus, the starting point for calculating the probation period of a suspended sentence is determined in favor of the person enjoying the suspended sentence, which is the date of the first judgment for the suspended sentence. Specifically, in cases where the Court of First Instance grants a suspended sentence, the judgment is not appealed or protested according to the appeal procedure.

The court of first instance grants a suspended sentence, the appellate court also grants a suspended sentence; the court of first instance grants a suspended sentence, the appellate court does not grant a suspended sentence, but the cassation court annuls the appellate judgment to re-try the appeal and the appellate court grants a suspended sentence, then the starting point for calculating the probation period is the date of the first instance judgment. In the case where the court of first instance does not grant a suspended sentence, the appellate court grants a suspended sentence, then the starting point for calculating the probation period is the date of the appellate judgment.

1.2.3. Regulations on application of additional penalties

Normally, applying additional punishment to people sentenced to imprisonment but given a suspended sentence is necessary, it has many meanings as it is also a form of coercion applied by the State to demonstrate the strictness of the law and demonstrate deterrence and crime prevention.

According to Article 65 of the 2015 Penal Code, additional penalties for people enjoying suspended sentences are prescribed as follows:

“3. The court may decide to apply an additional penalty to the person enjoying a suspended sentence if the applicable law provides for this penalty.”[35, p. 49]

Thus, basically, the provisions on additional penalties for people enjoying suspended sentences in the 2015 Penal Code do not have many changes compared to the 1999 Penal Code in applying additional penalties to people enjoying suspended sentences. Specifically, Article 60 of the 1999 Penal Code stipulates:

“3. A person who enjoys a suspended sentence may be subject to additional penalties such as a fine, a ban on holding a position, a ban on practicing a profession or doing certain jobs as prescribed in Articles 30 and 36 of this Code.”[31, pp. 80,81]

Accordingly, the person who is given a suspended sentence must also serve the sentence.

A person sentenced to imprisonment (but with a suspended sentence) may be subject to additional penalties if the law applicable to the person's crime provides for such additional penalties.

However, through practical work in the locality as well as through theoretical research, the fact that a convicted person violates the additional penalty such as not complying with the additional penalty is only considered when there is a problem of criminal record deletion, but not considering criminal responsibility for violating the conditions of the suspended sentence is an unreasonable thing in our country's law, that is why the effectiveness of the suspended sentence is not strict; regarding this issue, in the solution section, the author will have recommendations later.

1.2.4. Regulations on shortening the probation period of suspended sentence

The issue of shortening the probation period of a suspended sentence is a humanitarian issue of our State's law for those who have repented and corrected their mistakes. The State will recognize their achievements and results of training and self-cultivation through local authorities, through organizations and agencies that directly manage and supervise convicted people who are given suspended sentences.

According to the provisions of Clause 4, Article 65 of the 2015 Penal Code:

“4. If a person serving a suspended sentence has served half of the probation period and has made much progress, the Court may, at the request of the agency or organization responsible for supervision and education, decide to shorten the probation period.”[35, p. 49]

Thus, the issue of shortening the probation period for people enjoying suspended sentences in the 2015 Penal Code has not changed compared to the 1999 Penal Code. Specifically, Clause 4, Article 60 of the 1999 Penal Code stipulates:

“ 4. A person who has served half of the probation period and has made much progress shall, at the request of the competent authority or organization, be

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