Legal Validity of Criminal Records Card in Vietnam

 Criminal records or judicial record is a record of criminal convictions of convicted persons with criminal judgments and decisions of courts which have taken legal effect, judgment execution status and ban on individuals to hold positions or setting up company in Vietnam, or managing enterprises and cooperatives in Vietnam in cases where enterprises or cooperatives are declared bankrupt by Courts.

The competent state authority will grant individuals a criminal or judicial record card, which is issued by the department of justice or data center of judicial records to provide information whether or not an individual has any criminal record; prohibited or not prohibited from holding the position, establishing company in Vietnam, managing enterprises and cooperatives in Vietnam in case the enterprise or cooperative is declared bankrupt. Within the enterprise, judicial record cards will support human resource management, business registration, establishment, management of enterprises, cooperatives … Besides, many government agencies and organizations requesting individuals to provide judicial record cards for some necessary activities i.e. criminal record requirement for employment, criminal record for work permit application, criminal record for immigration purposes. According to Clause 1, Article 44, Law on Judicial Records 2009, there are two types of judicial record cards, including:

– Judicial record card No. 1 issued to Vietnamese citizens, foreigners who have or are residing in Vietnam to serve the purpose of human resource management, business registration, establishment, management of enterprises and cooperatives.

– Judicial record card No. 2 issued to Vietnamese citizen or foreigners whom have or are residing in Vietnam to serve the purpose of immigration, or others.

Depending on the purpose of using judicial record cards, individuals, agencies and organizations request the issuance of judicial record cards No. 1 or No. 2.

Pursuant to the Law on Judicial Records in 2009, Decree 111/2010 / ND-CP guiding the implementation of the Law on Judicial Records, the time limit for judicial record cards of Vietnam so far has not been clearly defined. Criminal record card’s time limit depend on the provisions in the documents of each relevant legal field and depending on the decision of the agency or organization that need to verify the status of judicial record of this individual.

As Articles 20, 24 and 28 of the Nationality Law of 2008, amended and supplemented in 2017, the application for admission, renunciation and return to Vietnamese nationality must have a judicial record card issued within no more than 90 days. For visa applications (VISA) at the US Embassy or the US Consulate General, the individual must have a judicial record card issued within 1 year for immigration verification.

Therefore, when individuals are required to provide judicial record cards at agencies and organizations, they must consider the regulations on the time limit that such agencies allow for judicial record cards. It is not contrary to the Law on Judicial Records in 2009, because the Law does not clearly stipulate the legal effect on two judicial record cards No. 1 and 2, as well as there are no regulations limiting the agencies and organizations to set the time limit for the criminal record cards in Vietnam.

Nguồn: https://antlawyers.vn/law-firm-in-vietnam/legal-validity-of-criminal-records-card-in-vietnam.html

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The Purposes of Using Criminal Record Card

 Under Clause 1, Article 2 of the Law on Criminal Record 2009, criminal record card is the records on the previous convictions of a person that is sentenced under valid court judgments or decisions, and banning individual from holding position, establishing or managing enterprises and cooperatives in cases where the enterprises or cooperatives are declared bankrupt by the court.

Article 7 – The Law on Criminal Record 2009 regulates that the following individual, agencies and organizations may request competent agencies to issue Criminal Record card:

Vietnamese citizens and foreigners who have been or are residing in Vietnam have the right to request the issuance of their criminal record cards;

Proceeding agencies may request the issuance of criminal record card for investigation, prosecution and trial;

State agencies, political organizations and socio-political organizations may request the issuance of criminal record to serve the personnel management, business registration, establishment and management of enterprises and cooperatives.

Criminal record cards include:

a/ Criminal record card no.1 is issued to individual, agencies and organizations defined in Clauses 1 and 3, Article 7 of this Law;

b/ Criminal record card no.2 is issued to agencies conducting the proceedings, defined in Clause 2, Article 7 of this Law and issued at the request of the individual so that he/she can know the contents of his/her criminal resume.

The basic difference of these two types is that the criminal record card no.1 only records the sentence has not been removed. If the case has been deleted, it will state “no criminal record”. The criminal record card no.2 records all previous criminal convictions regardless of whether they were deleted or not.

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Criminal Record for Foreign Citizens Residing in Vietnam

 When foreign citizens residing in Vietnam wish to apply and have their criminal record card issued, applicants have to prepare documents as follows:

The case that documents are submitted directly:

A written declaration request for granting the criminal record card according to form

Passport and Visa

Permanent residence card, temporary residence card, temporary residence book or temporary residence certificate of ward, commune or township police.

The case that a person is authorized by the client to submit documents will have to submit additional documents as follows:

A written declaration request for granting the criminal record according to form

Passport and Visa

The original of authorization letter. The case that the person requesting for criminal record card issuance is parents, spouses, children of whom have been granted the criminal record card is not required to have the authorization letter but will be replaced with papers to prove relationship (birth certificate, certificate of marriage)

Identity card (or passport) of authorized person.

Time limit for settling: 10 working days

There will be criminal record form 1 or criminal record form 2 to be requested.

Lawyers at ANT Lawyers, a law firm in Vietnam will be available to assist client to apply and obtain the criminal record in Vietnam.

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What Are Conditions to Clean Up Criminal Records?

 Offenders who have completely served their penalties shall be given conditions to do business, live honestly and integrate with the community, and when they meet all the conditions prescribed by law, their conviction may be expunged and their criminal records will be cleaned. A person whose criminal record is removed is considered as having not been convicted. There are three cases of conviction expungement, including: Automatic conviction expungement; Conviction expungement under a Court’s decision; Special cases of conviction expungement.

Automatic conviction expungement applies to people convicted not for crimes of infringing upon national security and crimes of undermining peace, against humanity and war crimes when they have completed their main penalty, the probationary period of the suspended sentence, the person has served the additional penalty, other decisions of the judgment or has expired and does not commit any new crime during the periods specified below: (i) 01 year in case of a warning, fine, community sentence or suspended imprisonment; (ii) 02 years in case of imprisonment of up to 05 years; (iii) 03 years in case of imprisonment from over 05 years to 15 years; (iv) 05 years in case of imprisonment of over 15 years or commuted life imprisonment. A convict serving an additional punishment that is mandatory supervision, prohibition from residence, prohibition from holding certain positions, prohibition from doing certain jobs, deprivation of certain citizenship rights for a period longer than those specified in points (i), (ii), (iii) above, automatic conviction expungement shall be granted when he/she finishes serving the additional punishment.

Conviction expungement under a Court’s decision is applicable to persons convicted of crimes of infringing upon national security and crimes of undermining peace, against humanity and war crimes. The Court shall decide the conviction expungement of convict based on the nature of the crimes committed, the law-observing attitude, the convicted person’s labor attitude and the following conditions:

The Court shall grant conviction expungement if the convict, after serving the primary sentence or probation period as well as additional sentences and other decisions of the judgment, does not commit any new crime over the following periods: (i) 01 year in case of warning, community sentence, or suspended imprisonment; (ii) 03 years in case of imprisonment of up to 05 years; (iii) 05 years in case of imprisonment of between more than 5 years and 15 years; (iv) 07 years in case of imprisonment of more than 15 years, life imprisonment or death sentence that is commuted.

If the convict is serving an additional sentence which is mandatory supervision, prohibition from residence, or deprivation of certain citizenship rights for a longer period than that specified in points (i), (ii) above, conviction expungement shall be considered when he/she finishes serving the additional sentence.

If an application for conviction expungement is rejected for the first time, it may only be resubmitted after 01 year from the day on which it is rejected; if the application for conviction expungement is rejected for the second time, it may only be resubmitted after 02 years from the day on which it is rejected.

Where a convict shows remarkable improvements and has made reparation in an effort to atone for the crime and conviction expungement is requested by his/her employer or local authority, the court shall decide to grant conviction expungement if has served at least one third of the above period.

In order to be automatically expunge conviction or expunged conviction according to the decision of the Court, the convict must fully comply with the decisions in the judgment including the payment of court costs and not commit any new crime within the prescribed time limit. For special cases of conviction expungement, convict must have at least one-third of the time limit for conviction expungement according to regulations and the Court shall decide to expunge conviction at the request of agencies or organizations where the person works or the local government where the person resides.

The period after which a conviction may be expunged depends on the primary sentence. If the convict who has not had the conviction expunged commits a new crime which leads to a conviction under an effective judgment, the period after which the conviction may be expunged shall start over from the day on which the primary sentence has been served or the end of the probation period of the new judgment or from the deadline for execution of the new judgment. If the convict has committed more than one crime and one of which is automatically eligible for expungement, one of which is eligible for expungement under a court’s decision, the Court shall decide expungement pursuant to the prescribed time limit for conviction expungement under the Court’s decision.

A convicted corporate legal entity shall automatically have its conviction expunged if it does not commit any new criminal offence for 02 years from the day on which the primary punishments, additional punishments, other decisions of the judgment are served or from the expiration of the time limit for execution of the judgment.

Criminal record card can be obtained at authority to reveal the current criminal conviction situation or changes of situation of such conviction.

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Criminal Record Granting for Foreigner

In order to be granted the work permit for foreigner, completing the immigration or reside procedures in a country, foreigners who are or have been residing in Vietnam must apply for a criminal record for the time that they residing in Vietnam.

Foreigners who are or have been temporarily residing in Vietnam have the right to request the Department of Justice of the province or city where they are residing or the National Centre for Criminal Record to issue the criminal record, in order to confirm that people have or do not have criminal records while residing in Vietnam. The person requesting for criminal record card can authorize another person on their behalf to complete procedures to obtain the criminal record.

ANT Lawyers can assist clients to apply for: Criminal record card no 1 and Criminal record card no 2

Individual when requesting for criminal record issuance have to provide the following documents:

1.For Vietnamese:

– A written declaration requesting for the issuance of criminal record;

– Certified copy of identity card, passport, family record book, temporary residence book, temporary residence card, permanent resident card in Vietnam (should present the original for comparison);

– Confirmation of permanent residence in Vietnam before leaving the country (applies to Vietnamese who are living in foreign countries).

2.For Foreigner:

– A written declaration requesting for the issuance of criminal record;

– Copy of the passport and visa that are still valid;

– Confirmation of temporary residence in Vietnam.

Implementation time: 3-7 working days.

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Types of Criminal Record

As regulated in Clause 4, Article 2 of the Law on Criminal Record, criminal record is a document issued by the Department of Justice or the National Centre for Criminal Record, which have the value to demonstrate that a person is with or without a criminal conviction; is prohibited or not prohibited from holding position, managing or establishing business or not.

As stipulated in Article 41 of the Law on Criminal Record, there are 2 types of criminal record card:

– Criminal record form 01 is issued upon request by Vietnam citizen or foreigners residing in Vietnam and State agencies, political organizations, political – social organizations to serve human resources management activities, business registration activities, establishment and management of enterprises or co

operatives.

– Criminal record form 02 is issued for the agency conducting the proceedings and at the request of individuals who want to know the contents of their criminal record.

Lawyers at ANT Lawyers, a law firms in Vietnam will be available to assist client to navigate through procedures to apply and obtain criminal record in Vietnam.

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