JOINT CIRCULAR No. 01/2000/TTLT-TANDTC-VKSNDTC-BTP-BCA GUIDING THE IMPLEMENTATION OF SECTION 3 OF RESOLUTION No. 32/1999/QH10 dated December 21, 1999 of the National Assembly and RESOLUTION No. 229/2000/NQ-UBTVQH10 dated January 28, 2000 of the Standing Committee of the National Assembly.

1. In all cases when conducting first-instance trials and second-instance trials, the death penalty shall not be applied to persons committing any of the offenses for which the Criminal Code of 1999 has abolished the death penalty; specifically, the following offenses:

In these cases, if during the first-instance trial or second-instance trial, it is found that the criminal act is particularly serious and under the Criminal Code of 1985, the offender must be sentenced to the highest penalty of death, then now apply the corresponding provision of the Criminal Code of 1999 to sentence the offender to the highest penalty prescribed by that provision.

2. During first-instance trials and second-instance trials, the death penalty shall not be applied to pregnant women, women with children (biological or adopted) under 36 months old at the time of committing the crime or being tried for crimes where the Criminal Code of 1999 still provides for the death penalty.

Adoption can only be recognized if it complies with the conditions, procedures, and formalities prescribed by laws on marriage and family, and household registration.

3. Point c of Section 3 of Resolution No. 32 stipulates: "Do not handle criminally those who commit acts that were previously defined as criminal offenses under the Criminal Code but are not defined as such in this Criminal Code..." Acts that were defined as criminal offenses under the Criminal Code of 1985 (amended and supplemented in 1989, 1991, 1992, and 1997), but are not defined as criminal offenses in the Criminal Code of 1999 include:

a. Acts that were specifically defined as a specific offense in a specific article in the Criminal Code of 1985, but are no longer defined as criminal offenses in the Criminal Code of 1999 and the offense has been abolished; specifically, these are:

b. Acts that the Penal Code of 1985 defines as criminal offenses in specific articles concerning specific criminal charges, now although the Penal Code of 1999 still has specific articles concerning those criminal charges, such acts have been removed from those articles.

Example 1: The act of illegally transferring property managed by the State or social organizations for significant profit may be prosecuted for the crime of "violating regulations on property management" as stipulated in Article 214 of the Penal Code of 1985. Now, although the Penal Code of 1999 still has Article 270 concerning the crime of "violating regulations on housing management," this act has been removed from that article.

Example 2: The act of close relatives of the offender who fail to report crimes that are not related to national security or other serious crimes, may be prosecuted for the crime of "failure to report a crime" as stipulated in Article 247 of the Penal Code of 1985. Now, although the Penal Code of 1999 still has Article 314 concerning the crime of failure to report a crime, this act has been removed from that article;

c. Acts that were defined as criminal offenses in the Penal Code of 1985, but according to the Penal Code of 1999, these acts are no longer considered criminal offenses because they lack one or more essential elements newly added.

Example 1: Acts of openly appropriating assets, theft, or fraudulently appropriating assets valued at less than five hundred thousand dong under the Penal Code of 1985 could be prosecuted for corresponding criminal charges without any additional conditions. However, under the Penal Code of 1999, these acts are only considered criminal offenses and can be prosecuted for corresponding criminal charges if they fall into one of the serious consequences or have previously been administratively punished for appropriation acts or convicted of asset appropriation crimes, not yet having their criminal records erased and committing again; therefore, acts of openly appropriating assets, theft, or fraudulently appropriating assets valued at less than five hundred thousand dong that do not fall into any of these situations are not considered criminal offenses under the Penal Code of 1999.

Example 2: Acts such as forcing marriage, obstructing voluntary progressive marriage, organizing early marriage or early marriage under the Penal Code of 1985 could be prosecuted for corresponding criminal charges. However, under the Penal Code of 1999, these acts are only considered criminal offenses and can be prosecuted for corresponding criminal charges if they have previously been administratively punished for such acts and commit again. In cases where they have not been administratively punished for such acts, they are not considered criminal offenses.

Example 3: Acts violating land management regulations without profit motive or personal motives if causing serious consequences or having been administratively handled under the Penal Code of 1985 could be prosecuted for the crime of "violating regulations on land management and protection" (Article 180). However, under the Penal Code of 1999, these acts are only considered criminal offenses and can be prosecuted for "the crime of violating land management regulations" (Article 174) if they have been disciplined for such acts and commit again. In cases where they have not been disciplined (including administrative penalties), even if they fall under one of the circumstances stipulated in Clause 2, Article 174 of the Penal Code of 1999, they are still not considered criminal offenses. (If motivated by profit or personal motives, depending on the time and circumstances, they may be prosecuted for the crime of abuse of power or position while performing official duties as stipulated in Article 221 of the Penal Code of 1985 or Article 281 of the Penal Code of 1999).

4. Point d, Item 3 of Resolution No. 32 of the National Assembly provides: "No criminal prosecution shall be initiated against juveniles aged 14 to under 16 years old for criminal offenses with the highest penalty level up to seven years' imprisonment..."; therefore, during the investigation, prosecution, and trial of a criminal case, if there is a juvenile defendant aged 14 to under 16 years old at the time of the offense, the investigating authority, the Prosecution Office, or the Court needs to check the highest penalty level of the criminal charge for which the juvenile is being investigated, prosecuted, or tried under the Penal Code of 1999; if the highest penalty level of the criminal charge under the Penal Code of 1999 is seven years' imprisonment or less, then the investigation of the case or the case shall be discontinued.

5. The discontinuation of the investigation of the case or the discontinuation of the case for the cases mentioned in Item 3 and Item 4 of this Circular shall be carried out as follows:

a. If the case is currently in the investigation stage, the investigating authority applies Point c (or Point d) of Item 3 of Resolution No. 32 of the National Assembly, Item 3 of Resolution No. 229 of the Standing Committee of the National Assembly, and Point a, Clause 1 of Article 139 of the Criminal Procedure Code to issue a decision to discontinue the investigation of the case;

b. If the case file has been transferred to the Prosecution Office for the decision to prosecute, the Prosecution Office applies Point c (or Point d) of Item 3 of Resolution No. 32 of the National Assembly, Item 3 of Resolution No. 229 of the Standing Committee of the National Assembly, and Clause 1 of Article 143 of the Criminal Procedure Code to issue a decision to discontinue the case;

c. If the case is currently in the first-instance trial stage, it should be distinguished as follows:

- In case the Prosecutor's Office has a Circular withdrawing the file for supplementary investigation to clarify the criminal responsibility of the suspect, and if the Court finds there is sufficient basis, the Court shall apply Point b Clause 2 Article 151 of the Criminal Procedure Code to issue a decision returning the file to the Prosecutor's Office; if through supplementary investigation it is still found that the case falls under one of the situations specified in Sections 3 and 4 of this Circular, then the Prosecutor's Office shall apply Point c (or Point d) Section 3 Resolution No. 32 of the National Assembly, Section 3 Resolution No. 229 of the Standing Committee of the National Assembly, and Article 143 b of the Criminal Procedure Code to issue a decision to terminate the case and notify the Court according to Clause 2 Article 154 of the Criminal Procedure Code;

- In case the Prosecutor's Office has a Circular (or Decision) withdrawing the indictment and requesting the Court to terminate the case, the Judge assigned to preside over the trial session of the case shall apply Point c (or Point d) Section 3 Resolution No. 32 of the National Assembly, Section 3 Resolution No. 229 of the Standing Committee of the National Assembly, and Article 156 of the Criminal Procedure Code to issue a decision to terminate the case;

- In case the Prosecutor's Office maintains the indictment, the Judge assigned to preside over the trial session (if within the preparation period for the trial) or the Trial Panel (if at the first-instance trial) shall apply Point c Section 3 Resolution No. 32 of the National Assembly, Section 3 Resolution No. 229 of the Standing Committee of the National Assembly, and Point 2 Article 89 of the Criminal Procedure Code to issue a decision to terminate the case (for the situation specified in Section 3 of this Circular) or apply Point d Section 3 Resolution No. 32 of the National Assembly, Section 3 Resolution No. 229 of the Standing Committee of the National Assembly, Point 3 Article 89 and Article 155 of the Criminal Procedure Code to issue a decision to terminate the case (for the situation specified in Section 4 of this Circular);

d. If the case is in the appellate stage, the Appellate Court must convene a hearing and depending on each specific case, the decision to terminate the case will be carried out as follows:

- For the situation specified in Section 3 of this Circular, the Trial Panel shall apply Point c Section 3 Resolution No. 32 of the National Assembly, Section 3 Resolution No. 229 of the Standing Committee of the National Assembly, Point 2 Article 89 and Article 223 of the Criminal Procedure Code to decide to revoke the first-instance judgment, declare the defendant not criminally responsible, and terminate the case.

- For the situation specified in Section 4 of this Circular, the Trial Panel shall apply Point d Section 3 Resolution No. 32 of the National Assembly, Section 3 Resolution No. 229 of the Standing Committee of the National Assembly, Point 3 Article 89 and Article 223 of the Criminal Procedure Code to decide to revoke the first-instance judgment and terminate the case.

đ. It should be noted that the suspension of the investigation of the case and the termination of the case as provided for in Points a, b, c, and d of this Section only apply to the situations specified in Sections 3 and 4 of this Circular from a criminal perspective. Other issues such as compensation for damages, handling of evidence (including administrative handling and disciplinary handling) and the pursuit of criminal responsibility for other suspects and defendants in the case (if any) will still be resolved according to general procedures.

6. The procedure for granting exemption from serving the sentence as stipulated in Section 4 of Resolution No. 229 of the Standing Committee of the National Assembly shall be carried out as follows:

a. The agency entrusted with the authority to propose according to Section 4 of Resolution No. 229 of the Standing Committee of the National Assembly shall be responsible for reviewing the subjects eligible for exemption from serving the sentence and compiling a list. This list must clearly record the name, date of birth, place of residence, offense, and sentence imposed by the court in the judgment number..., date, month, year. Attached to this list is a copy of the judgment and decision of the court that has taken legal effect for each specific subject. This list and copies of the judgments and decisions of the court that have taken legal effect shall be sent along with the Circular proposing to the Chief Justice of the People's Court with the authority to issue a decision exempting from serving the sentence as stipulated in Section 4 of Resolution No. 229 of the Standing Committee of the National Assembly;

b. The Chief Justice of the People's Court with the authority to issue a decision exempting from serving the sentence shall examine and if the documents are complete and clear, they shall apply the corresponding point in Section 4 of Resolution No. 229 of the Standing Committee of the National Assembly to issue a decision exempting from serving the sentence for the proposed subjects; if any document is missing or unclear, they shall request the agency entrusted with the authority to propose to provide the document or clarify further;

c. A copy of the decision exempting from serving the sentence shall be sent to the parties concerned, the agency proposing exemption from serving the sentence, relevant agencies for enforcement, and the same-level Prosecutor's Office;

d. It should be noted that Point c Section 3 of Resolution No. 32 of the National Assembly only provides for exemption from serving the sentence (both principal and additional penalties), while other issues concerning them, such as compensation for damages, return of property, handling of evidence..., they still need to comply with;

đ. It should be noted that the procedure for granting exemption from serving the sentence as described above can only be implemented for those who were sentenced before the promulgation of the Penal Code 1999 (January 4, 2000). For the subjects specified in Sections 3 and 4 of this Circular who were sentenced from January 4, 2000 onwards, the exemption from serving the sentence will not be applied to them but their judgments and decisions that have taken legal effect will be reviewed according to the extraordinary appeal procedure.

7. In cases where a person is sentenced for multiple offenses (in the same judgment or in different judgments), including an offense that is no longer considered a crime under the Penal Code 1999, the procedure for granting exemption from serving the sentence for that offense shall be carried out as follows:

a. If the person sentenced has not yet served the sentence or is currently serving the sentence, but the time already served does not exceed the sentence imposed by the court for the offense that is still considered a crime under the Penal Code 1999, then they shall be granted full exemption from serving the sentence for the offense that is no longer considered a crime under the Penal Code 1999.

Example 1: Nguyen Van A was sentenced by the court to two years' imprisonment for the crime of "unlawful absence" and three years' imprisonment for the crime of "loss of military weapons"; the combined sentence that Nguyen Van A must serve is five years' imprisonment; if Nguyen Van A has not yet served the prison term or is currently serving the prison term but the time already served does not exceed three years, then Nguyen Van A will be exempted from serving the entire two-year prison term for the crime of "unlawful absence".

b. If the convicted person has served part of the sentence or is serving the sentence, but the time already served exceeds the sentence imposed by the court for the offense which is still considered a crime under the Penal Code of 1999, then they will be exempted from serving the remaining portion of the sentence.

Example 2: In the example above in this Section, if Nguyen Van A has served more than three years of the prison term, then Nguyen Van A will be exempted from serving the remaining portion of the prison term.

8. When suspending the investigation of a case, terminating the case, or exempting from serving the sentence, the authority issuing the decision to suspend the investigation, terminate the case, or exempt from serving the sentence shall explain to the person whose investigation is suspended, the case is terminated, or who is exempted from serving the sentence that such suspension or exemption is due to the new humanitarian criminal policy of the State, not because of wrongful conviction caused by the investigative authorities; therefore, they have no right to claim compensation for damages under Article 624 of the Civil Code.

9. In cases where agencies, organizations, or the convicted person themselves request exemption from serving the sentence according to the provisions of Item 4 of Resolution No. 229 of the Standing Committee of the National Assembly, the police, prosecution, courts, and judicial departments need to guide them on how to submit a request and send a copy of the judgment or decision of the court that has taken legal effect to the agency authorized to handle such requests according to Item 4 of Resolution No. 229 of the Standing Committee of the National Assembly to proceed with the exemption from serving the sentence as guided in Item 6 of this Circular.

10. For the subjects mentioned in Items 3 and 4 of this Circular and those eligible for exemption from serving the penalty according to the provisions of Item 4 of Resolution No. 229 of the Standing Committee of the National Assembly who are being sought, the authority issuing the decision to suspend the investigation of the case, terminate the case, or exempt from serving the sentence must simultaneously notify the authority that issued the warrant of arrest so that this authority can immediately issue a decision or order to revoke the warrant of arrest if they are not being sought for another criminal act.

11. This Circular takes effect from June 27, 2000, and replaces previous documents of the Supreme People's Court and the Supreme People's Procuracy guiding the implementation of Item 3 of Resolution No.32 of the National Assembly.

During the implementation process, if there are any difficulties or issues not covered by guidance, requiring further explanation or supplementary guidance, please report to the Supreme People's Court, the Supreme People's Procuracy, the Ministry of Justice, and the Ministry of Public Security for timely clarification or supplementary guidance./.