Decree No. 111/2010/NĐ-CP detailing and guiding the implementation of certain provisions of the Law on Criminal Records

DECREE

Detailed regulations and guidance on implementing certain provisions of the Law on Criminal Record

________________________

THE GOVERNMENT

Pursuant to the Law on Organization of the Government dated December 25, 2001;

Pursuant to the Criminal Record Law dated June 17, 2009;

Considering the proposal of the Minister of Justice.

DECREE:

PART I

GENERAL PROVISIONS

Article 1. Scope of application

This Decree provides detailed regulations and guidance on Clause 2 of Article 11 regarding the organization of the National Criminal Record Center; Article 14 concerning the protection and storage of criminal record databases; Article 56 on searching, exchanging, and providing pre-Law on Criminal Record information to build criminal record databases, issue Criminal Record Certificates, and other contents of the Law on Criminal Record.

Article 2. Responsibilities of Ministries, sectors, and People's Committees of provinces and centrally governed cities in building criminal record databases.

1. The Ministry of Justice shall be responsible for directing the construction of criminal record databases nationwide and guiding the construction of such databases at local levels.

2. People's Committees of provinces and centrally governed cities shall be responsible for directing the construction of criminal record databases within their respective jurisdictions.

3. Relevant Ministries and sectors shall be responsible for directing agencies and units under their Ministries and sectors to cooperate and provide criminal record information for database construction in accordance with the Law on Criminal Record and this Decree.

Article 3. Protection of criminal record databases

Criminal record databases are national assets that must be strictly protected and secured. Management and exploitation of criminal record databases must comply with the provisions of the Law on Criminal Record and this Decree.

Article 4. National Criminal Record Center

The National Criminal Record Center is a public service unit under the Ministry of Justice, with the function of constructing and managing criminal record databases nationwide.

Tasks, powers, and organizational structure of the National Criminal Record Center shall be decided by the Minister of Justice.

Article 5. Provision of information between the National Criminal Record Center, Department of Justice, and other data management agencies.

1. Agencies managing population, household registration, residence registration, and identity card data shall be responsible for providing necessary information according to the requirements of the National Criminal Record Center and the Department of Justice to determine the personal status of convicted persons, persons prohibited from holding positions, establishing and managing enterprises, cooperatives.

2. The National Criminal Record Center and the Department of Justice shall be responsible for providing criminal record information according to the requirements of agencies managing population, household registration, residence registration, and identity card data to serve the work of these agencies in accordance with the Law on Criminal Record and this Decree.

Article 6. Fees and exemptions for issuing Criminal Record Certificates

1. The Ministry of Finance shall guide the collection, payment, management, and use of fees for issuing Criminal Record Certificates.

2. The following cases are exempted from fees for issuing Criminal Record Certificates:

a) Persons belonging to poor households as defined by law;

b) Persons residing in particularly difficult communes as defined by law.

Chapter II

CONSTRUCTION, STORAGE, AND PROTECTION OF CRIMINAL RECORD DATABASES

CONSTRUCTION OF CRIMINAL RECORD DATABASES

Section 1

ACTIVITIES IN CONSTRUCTING CRIMINAL RECORD DATABASES

Article 7. Activities in constructing criminal record databases include:

1. Receiving, inspecting, classifying, and processing criminal record information provided by agencies and organizations in accordance with the Law on Criminal Record and this Decree.

2. Establishing criminal records in accordance with the Law on Criminal Record and this Decree.

3. Updating criminal record information into established criminal records.

Scope of construction of criminal record databases on convictions

Article 8. The National Criminal Record Center and the Department of Justice shall construct criminal record databases on convictions for the following persons:

1. Persons sentenced by Vietnamese courts since July 1, 2010.

2. Persons sentenced by Vietnamese courts before July 1, 2010 but from July 1, 2010, the National Criminal Record Center and the Department of Justice receive criminal record information about them provided by competent agencies and organizations in accordance with Articles 16 to 21 of the Law on Criminal Record.

3. Persons sentenced by Vietnamese courts before July 1, 2010 but from July 1, 2010, the National Criminal Record Center and the Department of Justice receive information about their conviction status from police agencies, courts, and competent agencies under the Ministry of Defense to issue Criminal Record Certificates.

4. Vietnamese citizens sentenced by foreign courts whose court records and conviction records are provided by the Supreme People's Procuracy to the National Criminal Record Center since July 1, 2010.

5. Vietnamese citizens sentenced by foreign courts transferred to Vietnam to serve their sentences since July 1, 2010.

Cooperation in providing criminal record information on convictions to build criminal record databases

Article 9. 1. Agencies and organizations shall be responsible for providing criminal record information from July 1, 2010 to the National Criminal Record Center and the Department of Justice in accordance with Articles 16 to 21 of the Law on Criminal Record.

2. In cases where additional criminal record information prior to July 1, 2010 is needed to build criminal record databases for persons sentenced as stipulated in Clause 2 and 3 of Article 8 of this Decree, the National Criminal Record Center and the Department of Justice shall send written requests to the trial court that issued the judgment to provide copies of the judgment against the sentenced person, and competent agencies under the Ministry of Public Security, Ministry of Defense, civil enforcement agencies, and related agencies to provide information on the completion of punishment, amnesty, pardon, execution of fines, confiscation of property, and civil decisions in criminal judgments against the sentenced person.

Competent agencies under the Ministry of Public Security, Ministry of Defense, civil enforcement agencies, and related agencies shall be responsible for providing information according to the requirements of the National Criminal Record Center and the Department of Justice as stipulated herein.

Establishment of criminal records for persons sentenced by courts since July 1, 2010

Article 10. Establish a criminal record for individuals convicted by the Court from July 1, 2010 onwards

The National Judicial Record Center and the Department of Justice shall be responsible for compiling judicial records of individuals convicted by the Court from July 1, 2010 based on criminal record information provided by relevant agencies and organizations in accordance with Articles 16 to 21 of the Judicial Record Law.

Article 11. Compilation of Judicial Records for Individuals Convicted Before July 1, 2010

1. In cases where individuals were sentenced by Vietnamese Courts before July 1, 2010 but starting from July 1, 2010, the National Judicial Record Center and the Department of Justice receive criminal record information about those individuals from relevant agencies and organizations, the National Judicial Record Center and the Department of Justice shall send a request to competent authorities to provide information in accordance with Clause 2, Article 9 of this Decree to compile the judicial record of the convicted individual.

2. After receiving copies of judgments and other information provided by the Courts and related agencies and organizations as stipulated in Clause 1 of this Article, the National Judicial Record Center and the Department of Justice shall compile the judicial record of the convicted individual.

Article 12. Compilation of Judicial Records for Individuals Convicted Before July 1, 2010 and Already Issued with a Judicial Record Certificate

1. For individuals sentenced by Vietnamese Courts before July 1, 2010, if starting from July 1, 2010, the National Judicial Record Center and the Department of Justice receive information about their criminal records from public security agencies, courts, and competent authorities under the Ministry of National Defense to issue a Judicial Record Certificate, then the National Judicial Record Center and the Department of Justice issuing the Judicial Record Certificate shall compile the judicial record of that individual.

2. If additional information about the criminal record of the convicted individual is required to compile the judicial record as stipulated in Clause 1 of this Article, the National Judicial Record Center and the Department of Justice shall send a request to the competent authority to provide information in accordance with Clause 2, Article 9 of this Decree.

Article 13. Compilation of Judicial Records for Individuals Prohibited from Holding Positions, Establishing, or Managing Enterprises and Cooperatives

1. The Department of Justice shall be responsible for receiving extracts of bankruptcy decisions with legal effect from July 1, 2010 provided by the Courts in accordance with Article 37 of the Judicial Record Law to compile the judicial record of individuals prohibited from holding positions, establishing, or managing enterprises and cooperatives.

2. In cases where individuals prohibited from holding positions, establishing, or managing enterprises and cooperatives already have a judicial record, the Department of Justice shall record the contents as stipulated in Clause 2, Article 38 of the Judicial Record Law in their judicial record.

Article 14. Authority and Content of Compiling Judicial Records for Individuals Prohibited from Holding Positions, Establishing, or Managing Enterprises and Cooperatives

1. The Department of Justice at the place of permanent residence of individuals prohibited from holding positions, establishing, or managing enterprises and cooperatives shall compile their judicial record; in cases where such individuals do not have a place of permanent residence, the Department of Justice at their place of temporary residence shall compile their judicial record.

2. A separate judicial record shall be compiled for each individual prohibited from holding positions, establishing, or managing enterprises and cooperatives, containing the following contents:

a) Name, gender, date of birth, place of birth, nationality, place of permanent and temporary residence of the individual prohibited from holding positions, establishing, or managing enterprises and cooperatives;

b) Prohibited position, period during which establishment and management of enterprises and cooperatives are forbidden;

c) Decision number, date of decision, court that issued the bankruptcy declaration decision.

Article 15. Coordination to Review Information Provision of Judicial Records Between the Department of Justice and People's Courts

Quarterly, the Department of Justice shall coordinate with provincial and district-level People's Courts within its jurisdiction to review and compare criminal judgments and enterprise and cooperative bankruptcy decisions, including prohibitions on holding positions, establishing, or managing enterprises and cooperatives, issued by provincial and district-level courts to ensure timely and complete provision of judicial record information.

Article 16. Coordination to Verify and Provide Information for Building a Judicial Record Database

1. During the process of updating judicial record information, in cases where personal information about convicted individuals or individuals prohibited from holding positions, establishing, or managing enterprises and cooperatives is unclear or inaccurate, the National Judicial Record Center and the Department of Justice shall coordinate with population data management agencies, household registration, domicile registration, and identity card issuance agencies to verify and clarify.

2. Household registration registration offices when issuing decisions allowing changes or corrections to household registration for individuals aged 14 or older; issuing death certificates shall be responsible for sending original or copies of these decisions and certificates to the National Judicial Record Center and the Department of Justice.

Article 17. Coordination to Verify Conditions for Automatic Expunction of Criminal Records

1. In cases where individuals convicted have completed the time period for automatic expunction of criminal records according to the Penal Code but have not received a Certificate of Expunction of Criminal Records from the Court, the Department of Justice shall verify whether they have been indicted, investigated, prosecuted, or tried during the period they still had a criminal record. Verification shall be conducted as follows:

a) The Department of Justice shall send a verification request or conduct direct verification at the People's Committee of communes, towns, wards (hereinafter referred to as the People's Committee of communes), agencies, and organizations where the convicted individual resides or works after completing the execution of the judgment.

b) During the verification process at the People's Committee of communes, agencies, and organizations, if necessary, the Department of Justice shall conduct verification at relevant prosecution agencies regarding whether the convicted individual has been indicted, investigated, prosecuted, or tried.

2. The People's Committee of communes, agencies, and organizations shall be responsible for providing information as requested by the Department of Justice.

Judicial officers - household registration officers assist the People's Committee of communes in conducting verification as requested by the Department of Justice.

3. The Department of Justice shall send the verification results to the National Judicial Record Center within five working days from the completion of the verification as stipulated in Clause 1 of this Article.

4. In case the Criminal Record is established by the National Criminal Record Center pursuant to point a, Clause 2, Article 26 of the Criminal Record Law, then the National Criminal Record Center shall verify the conditions for automatic expungement of criminal records of convicted persons as stipulated in Clause 1 of this Article.

Article 18. Update information on the Criminal Record regarding automatic expungement of criminal records after obtaining verification results.

Based on the verification results as prescribed in Article 17 of this Decree, the National Criminal Record Center and the Department of Justice shall update the information in the Criminal Record of convicted persons as follows:

1. Record in the Criminal Record of the convicted person that "the criminal record has been expunged" if such person falls under any of the following cases:

a) Not committing a new crime during the period when the criminal record is still valid according to the Penal Code;

b) Having a criminal record for one offense but being sentenced or investigated, prosecuted, and tried for a criminal act occurring before or after the period when the criminal record for that offense is still valid according to the Penal Code.

2. In case a person who has a criminal record for one offense is sentenced by a judgment that has taken legal effect for a criminal act occurring during the period when the criminal record for that offense is still valid according to the Penal Code, record it as "having a criminal record" for that offense.

3. If a person with a criminal record for one offense is under investigation, prosecution, trial, or has been sentenced but the judgment has not yet taken legal effect for a criminal act occurring during the period when the criminal record for that offense is still valid according to the Penal Code, do not update the information on automatic expungement of the criminal record in their Criminal Record until the court's verdict is issued.

Section 2

STORAGE AND PROTECTION OF CRIMINAL RECORD DATA

Article 19. Forms of storage of criminal record data

1. The criminal record database includes paper criminal record files and electronic criminal record data.

2. Paper criminal record files include documents containing criminal record information sent by agencies and organizations to the National Criminal Record Center and the Department of Justice as prescribed from Article 16 to Article 21 of the Criminal Record Law and individual criminal records established by the National Criminal Record Center and the Department of Justice.

3. Electronic criminal record data include criminal record information contained in paper criminal record files that have been converted into electronic data.

4. Both paper criminal record files and electronic criminal record data serve as grounds for determining whether a person has or does not have a criminal record, is prohibited or not prohibited from holding positions, establishing, or managing enterprises or cooperatives in cases where enterprises or cooperatives are declared bankrupt by the Court.

Article 20. Storage of paper criminal record files

1. The storage of paper criminal record files must follow the principle of classification and arrangement into individual files; each file has its own unique identifier to ensure accuracy and convenience for information retrieval.

2. Copies of judgments, extracts of judgments, decisions on enforcement of criminal sentences, certificates of completion of criminal penalties, and individual criminal records shall be stored at the National Criminal Record Center and the Department of Justice until the death of the individual.

Other documents in the criminal record files may be stored for a limited time and may be destroyed when they lose their utility value according to the law on archival storage.

Article 21. Storage of electronic criminal record data

1. Electronic criminal record data are built based on digitization of paper criminal record files, have a structure consistent with the content of paper criminal record files, and are stored indefinitely at the National Criminal Record Center and the Department of Justice.

2. In case there is a discrepancy in content between electronic criminal record data and paper criminal record files, the National Criminal Record Center and the Department of Justice must conduct checks and verifications to adjust them accordingly.

Article 22. Management and exploitation of criminal record databases

1. The management and exploitation of criminal record databases must comply with the provisions of the Criminal Record Law and this Decree.

2. Civil servants and employees working at the National Criminal Record Center and the Department of Justice are only authorized to access the criminal record database within the scope of their assigned responsibilities and tasks.

3. The Minister of Justice shall guide the management, use, and exploitation of criminal record databases.

Article 23. Measures to protect criminal record databases

The National Criminal Record Center and the Department of Justice are responsible for organizing measures to ensure safety and security for criminal record databases.

1. General protective measures:

a) Measures to prevent and combat unauthorized access and theft of data;

b) Measures to prevent fire, explosion, natural disasters.

2. Protective measures for paper criminal record files:

a) Establish or arrange storage rooms according to the specified standards;

b) Equip with all necessary technical equipment and means for preserving files;

c) Maintain appropriate temperature, humidity, and lighting for the files;

d) Implement measures to prevent insects, mold, acid damage, and other factors causing file damage;

đ) Repair and restore files when damaged or at risk of damage.

3. Protective measures for electronic criminal record data:

a) Measures to ensure data safety and security;

b) Measures to ensure cybersecurity.

Chapter III

SEARCHING FOR INFORMATION ON CRIMINAL RECORDS PRIOR TO JULY 1, 2010 FOR ISSUANCE OF A CRIMINAL RECORD CERTIFICATE

JULY 1, 2010 TO ISSUE A CRIMINAL RECORD CERTIFICATE

Article 24. Determining the place to search for information on criminal records

1. Searching for information on criminal records prior to July 1, 2010 for issuance of a Criminal Record Certificate shall be conducted in the database of the Public Security sector as prescribed in Article 25 of this Decree.

2. In case the search results in the database of the Public Security sector do not provide sufficient grounds to conclude on the status of the criminal record of the applicant for a Criminal Record Certificate or the applicant for a Criminal Record Certificate falls under the cases prescribed in Article 27 of this Decree, the National Criminal Record Center and the Department of Justice shall contact the Court or competent agency under the Ministry of Defense to search for information as prescribed in Articles 26 and 27 of this Decree.

3. In case the judicial record database contains complete judicial record information prior to July 1, 2010 for individuals specified in Clauses 2 and 3 of Article 8 of this Decree, the information search shall be conducted within the judicial record database.

Article 25. Searching for criminal records in the Public Security Agency

1. In case the Department of Justice issues a Certificate of Judicial Record, the information search shall be carried out as follows:

a) Within one working day from the date of receiving a complete and valid application file for a Certificate of Judicial Record, the Department of Justice shall send a Verification Form of Judicial Record along with one set of the application file to the corresponding level Public Security Agency;

b) Within seven working days from the date of receiving the Verification Form of Judicial Record, the Provincial Public Security Agency shall conduct the search for information on the criminal status of the subject and send the search results to the Department of Justice; in cases where it is necessary to search for information in the system of files and archives of the Ministry of Public Security, the time limit shall not exceed nine working days.

2. In case the National Judicial Record Center issues a Certificate of Judicial Record, the information search shall be carried out as follows:

a) Within one working day from the date of receiving a complete and valid application file for a Certificate of Judicial Record, the National Judicial Record Center shall send a Verification Form of Judicial Record along with one set of the application file to the agency managing the system of files and archives of the Ministry of Public Security;

b) Within seven working days from the date of receiving the Verification Form of Judicial Record, the agency managing the system of files and archives of the Ministry of Public Security shall conduct the search for information and send the search results to the National Judicial Record Center.

3. In urgent cases at the request of the investigating authority, immediately upon receipt of the request, the National Judicial Record Center and the Department of Justice shall cooperate with the competent authority of the Ministry of Public Security to search for the judicial record information of the subject and issue a Certificate of Judicial Record within 24 hours from the time of receiving the request.

Article 26. Searching for judicial record information on criminal records in the Court

In case, after searching for judicial record information on criminal records in the Public Security Agency, there is still insufficient basis for conclusion or the content regarding the criminal status of the subject is unclear and incomplete to affirm whether the subject has or does not have a criminal record, the National Judicial Record Center and the Department of Justice shall contact the Court that initially tried the relevant case to search for the file.

The time limit for searching files at the Court shall not exceed five working days.

Article 27. Searching for judicial record information on criminal records in the competent authority under the Ministry of National Defense

In case issuing a Certificate of Judicial Record for individuals who were once officers, non-commissioned officers, soldiers, professional military personnel, or defense industry workers, the National Judicial Record Center and the Department of Justice shall cooperate with the competent authority under the Ministry of National Defense to search for information.

Article 28. Searching for judicial record information for cases determined to have no criminal record before July 1, 2010

In case an individual has been issued a Certificate of Judicial Record since July 1, 2010 and was determined to have no criminal record before July 1, 2010, when issuing a second Certificate of Judicial Record for such individual, it is not mandatory to search for information at the Public Security Agencies, Courts, or competent authorities under the Ministry of National Defense as stipulated in this Chapter.

Chapter IV

IMPLEMENTING PROVISIONS

Article 29. Effectiveness

This Decree takes effect from January 10, 2011.

Article 30. Responsibility for Implementation

1\. Ministers, Heads of ministerial-level agencies, Heads of agencies under the Government, Chairpersons of provincial and centrally-administered city People's Committees shall be responsible for implementing this Decree.

2. The Minister of Public Security shall direct units under the Ministry and local public security agencies; the Minister of National Defense shall direct relevant agencies and units in the Military to organize searches, exchanges, and provision of judicial record information prior to July 1, 2010 according to the provisions of the Judicial Record Law and this Decree to serve the construction of the judicial record database and issuance of Certificates of Judicial Record.

3. The Minister of Justice within the scope of their duties and powers shall coordinate with related ministries and sectors to guide the implementation of Articles and Clauses assigned in this Decree and other necessary contents of the Decree to meet the management requirements of the State on judicial records./.