Law on judicial records, No. 28/2009/QH12

THE STATE PRESIDENT

Order No. 04/2009/L-CTN of June 29, 2009, on the promulgation of law

THE PRESIDENT OF THE SOCIALIST REPUBLIC OF VIETNAM

Pursuant to Articles 103 and 106 of the 1992 Constitution of the Socialist Republic of Vietnam, which was amended and supplemented under Resolution No. 51/2001/QH10 of December 25, 2001, of the Xth National Assembly, the 10th session;

Pursuant to Article 91 of the Law on Organization of the National Assembly;

Pursuant to Article 57 of the Law on Promulgation of Legal Documents,

PROMULGATES:

the Law on Judicial Records,

which was passed on June 17, 2009, by the XIIth National Assembly of the Socialist Republic of Vietnam at its 5th session.

President of the Socialist Republic of Vietnam
NGUYEN MINH TRIET

LAW ON JUDICIAL RECORDS

(No. 28/2009/QH12)

Pursuant to the 1992 Constitution of the Socialist Republic of Vietnam, which was amended and supplemented under Resolution No. 51/2001/QH10;

The National Assembly promulgates the Law on Judicial Records.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Law provides for the order of and procedures for provision, receipt and updating of judicial record information; compilation of judicial records; organization and management of judicial record databases; issuance of judicial record cards; and state management of judicial records.

Article 2. Interpretation of terms

In this Law, the terms below are construed as follows:

1. Judicial record means a record of previous criminal conviction(s) of a person convicted under a criminal court judgment or ruling which has taken legal effect, the state of his/her execution of the judgment and a ban on this person’s holding of certain posts, or establishment or management of enterprises or cooperatives in case enterprises or cooperatives have been declared bankrupt by court.

2. Judicial record information on previous criminal conviction means information on an individual who has been convicted; his/her crime and applicable articles and clauses of law, principal and additional penalties, civil obligation in the criminal judgment, and court fee; date of judgment pronouncement, the court that has pronounced the judgment and serial number of the pronounced judgment; the state of judgment execution.

3. Judicial record information on ban on holding of certain posts, establishment or management of enterprises or cooperatives means information on an individual who is banned from holding certain posts, establishing or managing enterprises or cooperatives; posts subject to the ban, the duration in which he/she is banned from establishing or managing enterprises or cooperatives under the court ruling on bankruptcy declaration.

4. Judicial record card means a card issued by an agency managing the judicial record database and valid to prove whether or not an individual has a previous criminal conviction, is banned from holding certain posts, establishing or managing enterprises or cooperatives in case enterprises or cooperatives have been declared bankrupt by court.

5. Agencies managing the judicial record database include the National Center for Judicial Records and provincial-level Justice Departments.

Article 3. Purposes of management of judicial records

1. Satisfying the requirement of proving whether or not an individual has a previous criminal conviction or is banned from holding certain posts, establishing or managing enterprises or cooperatives in case enterprises or cooperatives have been declared bankrupt by court.

2. Recording the remission of previous criminal convictions, and facilitating the community reintegration by convicted persons.

3. Supporting criminal proceedings and the making of judicial statistics on crimes.

4. Supporting the personnel management, business registration, establishment and management of enterprises and cooperatives.

Article 4. Principles of management of judicial records

1. Judicial records shall be only made based on criminal court judgments or rulings which have taken legal effect; legally effective court rulings to declare enterprises or cooperatives bankrupt.

2. Assurance of personal privacy.

3. Judicial record information shall be adequately and accurately provided, received, updated and processed in strict compliance with the order and procedures provided in this Law. The judicial record card-issuing agency shall take responsibility for the accuracy of information in judicial record cards.

Article 5. Subjects of judicial record management

1. Vietnamese citizens who have been convicted under legally effective criminal judgments of Vietnamese courts or foreign courts, with excerpts of these judgments or their previous criminal convictions provided by competent foreign authorities under treaties on mutual legal assistance in criminal affairs or on the reciprocity principal.

2. Foreigners who have been convicted under legally effective criminal judgments of Vietnamese courts.

3. Vietnamese citizens and foreigners who are banned by Vietnamese courts from holding certain posts, establishing or managing enterprises or cooperatives under legally effective rulings on bankruptcy declaration.

Article 6. Responsibility to provide judicial record information

Courts, procuracies, civil judgment enforcement agencies, competent agencies of the Ministry of Public Security, judgment enforcement agencies of the Ministry of National Defense and concerned agencies and organizations shall provide the judicial record database-managing agencies with sufficient and accurate judicial record information in strict accordance with the prescribed order and procedures under this Law and other relevant laws.

Article 7. Right to request the issuance of judicial record cards

1. Vietnamese citizens and foreigners who resided or are currently residing in Vietnam may request the issuance of judicial record cards.

2. Procedure-conducting agencies may request the issuance of judicial record cards to serve the investigation, prosecution and adjudication work.

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

Article 8. Prohibited acts

1. Illegally exploiting or using, falsifying or destroying judicial record data.

2. Providing untruthful judicial record information.

3. Forging papers to request the issuance of judicial record cards.

4. Erasing, modifying or forging judicial record cards.

5. Issuing judicial record cards with untruthful contents, ultra vires, or to improper persons.

6. Using other persons’ judicial record cards illegally or for the purpose of infringing upon privacy of individuals.

Article 9. Tasks and powers of agencies in the state management of judicial records

1. The Government performs the unified state management of judicial records.

2. The Supreme People’s Court and the Supreme People’s Procuracy shall coordinate with the Government in performing the state management of judicial records.

3. The Ministry of Justice is answerable to the Government for performing the state management of judicial records, having the following tasks and powers:

a/ To submit to competent state agencies for promulgation or promulgate according to its powers legal documents on judicial records;

b/ To direct and organize the implementation of legal documents on judicial records; to organize the dissemination of and education about the law on judicial records; to professionally train and retrain civil servants engaged in judicial record work;

c/ To manage the judicial record database at the National Center for Judicial Records;

d/ To assure physical foundations and working facilities for the National Center for Judicial Records;

e/ To provide professional direction and guidance on judicial records;

f/ To examine, inspect, handle violations, and settle according to its competence complaints and denunciations about the observance of the law on judicial records;

g/ To issue and uniformly manage forms, papers, books and records on judicial records;

h/ To apply information technology to the development of the judicial record database and the management of judicial records;

i/ To conduct international cooperation in the domain of judicial records;

j/ To annually report to the Government on the management of judicial records.

4. The Ministry of Public Security, the Ministry of National Defense, the Ministry of Foreign Affairs and other ministries and ministerial-level agencies shall, within the ambit of their tasks and powers, coordinate with the Ministry of Justice in performing the state management of judicial records.

5. People’s Committees of provinces and centrally run cities (below referred to as provincial-level People’s Committees) shall perform the state management of judicial records in their localities, having the following tasks and powers:

a/ To direct and organize the implementation of legal documents on judicial records; to organize the dissemination of and education about the law on judicial records;

b/ To assure state payroll, physical foundations and working facilities for the management of judicial records in their localities;

c/ To examine, inspect, handle violations, and settle according to their competence complaints and denunciations about the observance of the law on judicial records;

d/ To apply information technology to the development of judicial record databases and the management of judicial records under the Ministry of Justice’s guidance;

e/ To annually report to the Ministry of Justice on the management of judicial records in their localities.

Article 10. Fee for issuance of judicial record cards

1. Individuals who request the issuance of judicial record cards shall pay a fee.

2. The rates, management and use of the fee for issuance of judicial record cards comply with law.

Chapter II

ORGANIZATION AND MANAGEMENT OF THE JUDICIAL RECORD DATABASE

Article 11. Judicial record database

1. A judicial record database means a collection of judicial record information on previous criminal convictions and ban from holding certain posts, establishing or managing enterprises or cooperatives, which is updated and processed under this Law.

2. Judicial record databases shall be developed and managed at the National Center for Judicial Records and provincial-level Justice Departments.

The Government shall specify the organiza-tion of the National Center for Judicial Records.

Article 12. Tasks of the National Center for Judicial Records in managing judicial record databases

1. To develop, manage, exploit and protect judicial record databases nationwide.

2. To guide the development, management, exploitation and protection of judicial record databases at provincial-level Justice Departments.

3. To receive, update and process judicial record information provided by the Supreme People’s Procuracy, competent agencies of the Ministry of Public Security, judgment enforcement agencies of the Ministry of National Defense and provincial-level Justice Departments.

4. To receive judicial records provided by provincial-level Justice Departments.

5. To provide judicial record information to provincial-level Justice Departments.

6. To compile judicial records and issue judicial record cards according to its competence.

7. To provide judicial record information on foreigners convicted by Vietnamese courts at the request of the Supreme People’s Procuracy.

8. To observe the statistical and reporting regime in managing judicial record databases nationwide.

Article 13. Tasks of provincial-level Justice Departments in managing judicial record databases

1. To develop, manage, exploit and protect judicial record databases within their provinces or centrally run cities.

2. To receive, update and process judicial record information provided by courts, concerned agencies and organizations and the National Center for Judicial Records.

3. To compile judicial records and issue judicial record cards according to their competence.

4. To provide judicial records and additional information to the National Center for Judicial Records; to provide judicial record information to other provincial-level Justice Departments.

5. To observe the statistical and reporting regime in managing judicial record databases in their localities.

Article 14. Protection and archive of judicial record databases

Judicial record databases constitute a national asset which must be strictly and safely protected and archived for a long term.

Only competent persons may access and exploit judicial record databases.

The Government shall specify the protection and archive of judicial record databases.

Chapter III

PROVISION, RECEIPT, UPDATING AND PROCESSING OF JUDICIAL RECORD INFORMATION, AND COMPILATION OF JUDICIAL RECORDS

Section 1. PROVISION AND RECEIPT OF JUDICIAL RECORD INFORMATION ON PREVIOUS CRIMINAL CONVICTIONS

Article 15. Sources of judicial record information on previous criminal convictions

Judicial record information comes from the following sources:

1. First-instance criminal judgments which have taken legal effect and appellate criminal judgments;

2. Cassation or re-opening rulings on criminal cases;

3. Rulings on criminal judgment enforcement;

4. Rulings on exemption from serving penalties;

5. Rulings on reduction of the duration of serving penalties;

6. Rulings on postponement of execution of imprisonment penalty;

7. Rulings on suspension of execution of imprisonment penalty;

8. Rulings on exemption from or reduction of the obligation to pay state budget remittances in executing a judgment;

9. Certificates of completed execution of imprisonment penalty; written notices of results of enforcement of the expulsion penalty;

10. Certificates of completed execution of non-custodial reform or suspended imprisonment penalty and additional penalties;

11. Rulings on imposition of fines, confiscation of assets, collection of court fees and other civil obligations of convicts; decisions on termination of judgment enforcement; certificates of judgment enforcement results; written notices of judgment enforcement completion in case convicts have fulfilled their obligations;

12. Rulings on commutation of the death penalty;

13. Certificates of special reprieve or amnesty;

14. Rulings on remission of previous criminal conviction;

15. Certificates of automatic remission of previous criminal conviction;

16. Excerpts of judgments or previous criminal convictions of Vietnamese citizens, provided supplied by competent foreign authorities to the Supreme People’s Procuracy under treaties on mutual legal assistance in criminal affairs or on the reciprocity principle;

17. Rulings of Vietnamese courts on extradition of criminals for judgment enforcement in Vietnam; rulings of Vietnamese courts on receipt of transferred persons who are serving an imprisonment penalty; notification of decisions on special reprieve or amnesty, penalty exemption or commutation by transferring countries for persons who are serving an imprisonment penalty;

18. Notices of implementation of rulings on extradition of convicts or decisions on transfer of persons who are serving an imprisonment penalty in Vietnam at the request of competent foreign authorities.

Article 16. Tasks of courts in providing judicial record information on previous criminal convictions

1. A court having conducted first-instance trial of a case shall send to the provincial-level Justice Department in the locality where it is headquartered the following documents:

a/ Excerpt of the legally effective first-instance criminal judgment or appellate criminal judgment;

b/ Cassation or reopening criminal ruling;

c/ Ruling on commutation of the death penalty;

d/ Ruling on criminal judgment enforcement;

e/ Ruling on postponement of imprisonment penalty;

f/ Ruling on remission of previous criminal conviction;

g/ Certificate of automatic remission of previous criminal conviction.

2. A court having issued rulings or decisions shall send to provincial-level Justice Department of the locality where it is headquartered the following rulings:

a/ Ruling on exemption from penalty execution;

b/ Ruling on reduction of the duration of penalty execution;

c/ Ruling on suspension of imprisonment penalty;

d/ Ruling on exemption from or reduction of the obligation to pay state budget remittances in executing a judgment;

e/ Ruling on receipt of a transferred person who is serving an imprisonment penalty specified in Clause 17, Article 15 of this Law.

3. Time limit for sending an excerpt of a judgment or ruling or a copy of a certificate specified in Clauses 1 and 2 of this Article is 10 days after that judgment or ruling takes legal effect or is received or that certificate is issued.

4. An excerpt of a judgment specified at Point a, Clause 1 of this Article contain the following details:

a/ Full name, sex, date and place of birth, nationality, place of permanent or temporary residence of the convict, and full names of his/her parents and spouse;

b/ Date of pronouncement and serial number of the judgment; the court that has pronounced the judgment; the committed crime and applicable articles and clauses of law; principal and additional penalties; civil obligation indicated in the criminal judgment; and the court fee.

5. Originals or copies of rulings and certificates specified in Clauses 1 and 2 of this Article shall be sent.

Article 17. Task of the Supreme People’s Procuracy in providing judicial record information on previous criminal convictions

The Supreme People’s Procuracy shall send to the National Center for Judicial Records copies of excerpts of judgments and excerpts of previous criminal convictions of Vietnamese citizens supplied by competent foreign authorities within 10 days after the receipt of these excerpts.

Article 18. Tasks of public security offices in providing judicial record information on previous criminal convictions

1. Superintendents of detention camps or custody facilities shall send certificates of completed execution of imprisonment penalty or certificates of special reprieve or amnesty to the National Center for Judicial Records within 10 days after these certificates are issued.

2. The immigration management agency of the Ministry of Public Security shall send notices of enforcement of the expulsion penalty to the National Center for Judicial Records within 10 days after the date of enforcement of the penalty.

3. Competent agencies of the Ministry of Public Security shall send notices of enforcement of rulings on extradition of convicts and rulings on transfer of persons who are serving an imprisonment penalty in Vietnam to the National Center for Judicial Records within 10 days after the date of enforcement of the rulings.

4. Competent agencies of the Ministry of Public Security shall send notices of decisions on special reprieve or amnesty and rulings on exemption from or commutation of penalties of transferring countries persons who are serving an imprisonment penalty to the National Center for Judicial Records within 10 days after the receipt of these notices.

Article 19. Tasks of judgment enforcement agencies of the Ministry of National Defense in providing judicial record information on previous criminal convictions

1. Superintendents of detention camps or custody facilities shall send certificates of completed execution of imprisonment penalty or certificates of special reprieve or amnesty to the National Center for Judicial Records within 10 days after these certificates are issued.

2. Judgment enforcement agencies of military zones or equivalent level shall send rulings, certificates and written notices specified in Clause 11, Article 15 of this Law to the National Center for Judicial Records within 10 days after these rulings are made, certificates are issued or convicts fulfill their judgment execution obligation.

Article 20. Tasks of civil judgment enforcement agencies in providing judicial record information on previous criminal convictions

Civil judgment enforcement agencies shall send rulings, certificates and written notices specified in Clause 11, Article 15 of this Law to provincial-level Justice Departments in localities where they are headquartered within 10 days after these rulings are made, certificates are issued or convicts fulfill their judgment execution obligation.

Article 21. Tasks of other agencies and organizations in providing judicial record information on previous criminal convictions

Agencies and organizations competent to issue certificates of completed execution of non-custodian reform or suspended imprisonment penalty and additional penalties shall send these certificates to provincial-level Justice Departments in localities where they are headquartered within 10 days after issuing these certificates.

Article 22. Tasks of the National Center for Judicial Records in receiving and providing judicial record information on previous criminal convictions

1. To fully and promptly receive judicial record information on previous criminal convictions provided by the Supreme People’s Procuracy, competent agencies of the Ministry of Public Security and judgment enforcement agencies of the Ministry of National Defense. The receipt of judicial record information on previous criminal convictions must be recorded in receipt books made according to a form set by the Ministry of Justice.

2. To send copies of rulings, decisions, certificates, certifications and written notices supplied by competent agencies under Clause 1, Article 18, and Article 19 of this Law to provincial-level Justice Departments in localities where convicts permanently reside. In case it is impossible to identify convicts’ places of permanent residence, to send these copies to provincial-level Justice Departments in localities where convicts temporarily reside within 10 days after the receipt of rulings, decisions, certificates, certifications and written notices.

Article 23. Tasks of provincial-level Justice Departments in receiving and supplying judicial record information on previous criminal convictions

1. Provincial-level Justice Departments shall fully and promptly receive judicial record information on previous criminal convictions provided by concerned agencies and organizations under this Law.

In case a convict permanently resides in another province or centrally run city, the provincial-level Justice Department shall send judicial record information on his/her previous criminal convictions to the provincial-level Justice Department in the locality where he/she permanently resides within 10 days after the receipt of information. In case it is impossible to identify the place of permanent residence of the convict, judicial record information on his/her previous criminal convictions shall be sent to the provincial-level Justice Department in the locality where he/she temporarily resides. In case it is impossible to identify both places of permanent and temporary residence of the convict, the provincial-level Justice Department shall send judicial record information on his/her previous criminal convictions to the National Center for Judicial Records.

2. The receipt of judicial record information on previous criminal convictions by provincial-level Justice Departments must be recorded in receipt books made according to a form set by the Minister of Justice.

Article 24. Supplementation or correction of judicial record information

1. In case judicial record information is incomplete or wrong, a judicial record database-managing agency shall request the agency or organization that has provided the information to supplement or correct it.

2. Courts, procuracies, civil judgment enforcement agencies, competent agencies of the Ministry of Public Security, judgment enforcement agencies of the Ministry of National Defense and concerned agencies and organizations shall provide information to judicial record database-managing agencies within 10 days after receiving supplementation or correction requests.

3. Judicial record database-managing agencies shall provide supplemented or corrected information under Clause 2, Article 22 and Clause 1, Article 23 of this Law within 10 days after receiving it.

Article 25. Forms of providing judicial record information on previous criminal convictions

Judicial record information on previous criminal convictions shall be sent directly, or via mail, the Internet or computer network.

Section 2. COMPILATION OF JUDICIAL RECORDS, UPDATING AND PROCESSING OF JUDICIAL RECORD INFORMATION ON PREVIOUS CRIMINAL CONVICTIONS

Article 26. Compilation of judicial records

1. Provincial-level Justice Departments in localities where convicts permanently reside shall compile judicial records of these persons. In case it is impossible to identify their places of permanent residence, provincial-level Justice Departments in localities where these persons temporarily reside shall compile their judicial records.

A judicial record shall be made in two copies, one to be managed by the provincial-level Justice Department and the other transferred to the National Center for Judicial Records.

2. The National Center for Judicial Records shall compile and archive judicial records in the following cases:

a/ It is impossible to identify places of permanent or temporary residence of convicts;

b/ Convicts have been extradited for judgment enforcement or transferred for execution of an imprisonment penalty in Vietnam;

c/ It has received copies of excerpts of judgments or excerpts of previous criminal convictions of Vietnamese citizens from the Supreme People’s Procuracy under Article 17 of this Law.

3. Judicial records shall be compiled on the basis of sources of judicial record information on previous criminal convictions specified in Article 15 of this Law.

4. A judicial record shall be compiled for each convict with the following details:

a/ Full name, sex, date and place of birth, nationality, place of residence, serial number of the identity card or passport of this convict, and full names of his/her parents and spouse;

b/ Date of judgment pronouncement, serial number of the judgment, the court which has pronounced the judgment, the crime and applicable article(s) and clause(s) of law, principal and additional penalties, civil obligation in the criminal judgment, court fee, and state of judgment enforcement.

5. In case a person has been convicted of more than one crime and his/her penalties have been summed up under the Penal Code, his/her judicial record must clearly indicate each crime he/she had committed, applicable article(s) and clause(s) of law and common penalty for these crimes.

Article 27. Updating of judicial record information on previous criminal convictions in case of exemption from penalty execution, reduction of the penalty execution duration, postponement of imprisonment penalty execution or suspension of imprisonment penalty execution

In case the judicial record of a person has been compiled but later a court issues a ruling on exemption from penalty execution, reduction of the penalty execution duration, postponement of imprisonment penalty execution or suspension of imprisonment penalty execution, the provincial-level Justice Department shall update this information in his/her judicial record.

Article 28. Updating of judicial record information on previous criminal convictions in case of cassation or reopening trial

1. A cassation or reopening ruling which accepts no protest and upholds the legally effective judgment or ruling shall be recorded by the provincial-level Justice Department in the judicial record.

2. For a cassation or reopening ruling which quashes the legally effective judgment or ruling, the provincial-level Justice Department shall update judicial record information as follows:

a/ In case the judicial record has been compiled only on the basis of the quashed judgment or ruling, it shall be deleted from the judicial record database;

b/ In case the judicial record has been compiled on the basis of more than one judgment or ruling, information on the quashed judgment or ruling in the judicial record shall be deleted.

Article 29. Updating of judicial record information in subsequent judgments

In case a person is convicted under another judgment after his/her judicial record has been compiled, the provincial-level Justice Department shall add information in the subsequent judgment in his/her judicial record.

Article 30. Updating of judicial record information in case of completed execution of judgments or special reprieve or amnesty

1. Upon receiving a certificate of completed execution of non-custodial reform or suspended imprisonment penalty and additional penalties; a ruling on termination of judgment enforcement; a written notice of judgment enforcement completion in case a convict has fulfilled his/her obligation, the provincial-level Justice Department shall record contents of that certificate, ruling or written notice in his/her judicial record.

2. Upon receiving a certificate of completed execution of an imprisonment penalty by a convict, the National Center for Judicial Records shall record contents of this certificate in his/her judicial record. In case of special reprieve, the phrase “has completed the execution of the imprisonment penalty under the special reprieve decision” shall be written. In case of amnesty, the phrase “is exempted from the penal liability under the amnesty decision” shall be written.

Article 31. Updating of judicial record information in case of expulsion

In case a convict has executed the expulsion penalty, the National Center for Judicial Records shall write the phrase “has been expelled” in his/her judicial record.

Article 32. Updating of judicial record information in case Vietnamese citizens are convicted by foreign courts

1. In case a Vietnamese citizen who has a judicial record is extradited for judgment enforcement or transferred for execution of an imprisonment penalty in Vietnam, the National Center for Judicial Records shall record contents of the decision on extradition or receipt of transferred person in his/her judicial record.

2. In case a Vietnamese citizen who has a judicial record and an excerpt of his/her judgment or previous criminal conviction is supplied by a competent foreign authority, the National Center for Judicial Records shall update such information under Article 29 of this Law.

3. In case the National Center for Judicial Records is notified of a foreign court ruling on penalty exemption or commutation, or a foreign decision on special reprieve or amnesty for a Vietnamese citizen convicted by that foreign court and currently executing an imprisonment penalty in Vietnam, it shall record that ruling or decision in this person’s judicial record under Article 27 and Clause 2, Article 30 of this Law.

Article 33. Updating of judicial record information in case convicts have their previous criminal convictions remitted

1. In case a convict has his/her previous criminal conviction automatically remitted, information shall be updated as follows:

a/ Upon receiving a certificate of remission of previous criminal conviction from a court, it shall write the phrase “has his/her previous criminal conviction remitted” in the convict’s judicial record;

b/ Upon verifying that the convict fully satisfies the conditions for automatic remission of previous criminal conviction under the Penal Code, it shall write the phrase “has his/her previous criminal conviction remitted” in his/her judicial record.

2. In case a convict has his/her previous criminal conviction remitted under a court ruling under the Penal Code and the Criminal Procedure Code, the provincial-level Justice Department shall write the phrase “has his/her previous criminal conviction remitted” in his/her judicial record.

Article 34. Updating of additional judicial record information

In case judicial records are updated with information under Articles 27, 28 and 29; Clause 1, Article 30; and Article 33 of this Law, provincial-level Justice Departments shall send this information to the National Center for Judicial Records within 5 working days after completion of the information updating. The National Center for Judicial Records shall update additional information in the judicial record database right after receiving it.

The Minister of Justice shall set a form of additional judicial record information cards.

Article 35. Processing of judicial record information when a crime is abolished

In case a person has been convicted of a crime which is abolished under the Penal Code, information on such crime shall be deleted from this person’s judicial record.

Section 3. INFORMATION ON BAN ON HOLDING OF CERTAIN POSTS, ESTABLISHMENT OR MANAGEMENT OF ENTERPRISES OR COOPERATIVES UNDER RULINGS ON BANKRUPTCY DECLARATION

Article 36. Sources of judicial record information on ban on holding of certain posts, establishment or management of enterprises or cooperatives

Judicial record information on ban on holding of certain posts, establishment or management of enterprises or cooperatives shall be taken from legally effective court rulings on bankruptcy declaration under the Law on Bankruptcy.

Article 37. Provision and receipt of judicial record information on ban on holding of certain posts, establishment or management of enterprises or cooperatives

1. The court which has issued a ruling declaring indicating the ban on an enterprise or cooperative bankrupt shall, within 10 days after the ruling takes legal effects, send an excerpt of this ruling, indicating the ban on concerned individual(s) from holding certain posts, establishing or managing enterprises or cooperatives, to the provincial-level Justice Department in the locality where it is headquartered.

2. An excerpt of a ruling on bankruptcy declaration contains the following details:

a/ Full name, sex, date and place of birth, nationality, place of permanent or temporary residence of the person banned from holding certain posts, establishing or managing enterprises or cooperatives;

b/ Posts subject to the ban and the duration of the ban on establishment or management of enterprises or cooperatives.

3. Provincial-level Justice Departments shall receive judicial record information on ban on holding of certain posts, establishment or management of enterprises or cooperatives provided by courts.

In case a person banned from holding certain posts or establishing or managing enterprises or cooperatives permanently resides in another province or centrally run city, the provincial-level Justice Department shall send this person’s judicial record information to the provincial-level Justice Department in the locality where he/she permanently resides within 10 days after receiving the information. In case it is impossible to identify his/her place of permanent residence, it shall send judicial record information to the provincial-level Justice Department in the locality where he/she temporarily resides.

The receipt of judicial record information on ban on holding of certain posts, establishment or management of enterprises or cooperatives shall be recorded in receipt books made according to a form set by the Minister of Justice.

Article 38. Compilation of judicial records and updating of information on ban on holding of certain posts, establishment or management of enterprises or cooperatives

1. In case a person banned from holding certain posts or establishing or managing enterprises or cooperatives has no judicial record, the provincial-level Justice Department in the locality where he/she permanently or temporarily resides shall compile a judicial record on the basis of a court ruling on bankruptcy declaration with details specified in Clause 2, Article 37 of this Law.

A judicial record shall be made in 2 copies, one to be managed by the provincial-level Justice Department and the other transferred to the National Center for Judicial Records.

2. In case a person banned by a court from holding certain posts, establishing or managing enterprises or cooperatives under a ruling on bankruptcy declaration already has a judicial record, the provincial-level Justice Department shall record in his/her judicial record the court ruling and send such information to the National Center for Judicial Records. The updating of additional information complies with Article 34 of this Law.

Article 39. Processing of judicial record information upon expiration of the duration of the ban on establishment or management of enterprises or cooperatives

Information on the ban on a person from establishing or managing enterprises or cooperatives will be deleted from his/her judicial record upon expiration of the ban duration under the court ruling on bankruptcy declaration.

Article 40. Forms of provision of judicial record information on the ban on holding of certain posts or establishment or management of enterprises or cooperatives

Judicial record information on the ban on holding of certain posts or establishment or management of enterprises or cooperatives shall be send directly or via mail, the Internet or computer network.

Chapter IV

ISSUANCE OF JUDICIAL RECORD CARDS

Section 1. JUDICIAL RECORD CARDS

Article 41. Judicial record cards

1. Judicial record cards include:

a/ Judicial record card No. 1, which shall be issued to individuals, agencies and organizations specified in Clauses 1 and 3, Article 7 of this Law;

b/ Judicial record card No. 2, which shall be issued to procedure-conducting agencies specified in Clause 2, Article 7 of this Law and at the request of individuals who want to know their judicial records.

2. The Minister of Justice shall set forms of judicial record cards.

Article 42. Contents of judicial record card No. 1

1. Full name, sex, date and place of birth, nationality, place of residence, serial number of the identity card or passport of the person to whom the judicial record card is issued.

2. Previous criminal conviction:

a/ For an unconvicted person, the words “no previous criminal conviction” shall be written. For a convict who has insufficient conditions for remission of his/her previous criminal convictions, the words “with a previous criminal conviction,” the committed crime, principal and additional penalties shall be written;

b/ For a person whose previous criminal conviction has been remitted and for whom information on remission of previous criminal conviction has been updated in his/her judicial records, the words “no previous criminal conviction” shall be written;

c/ For a person eligible for amnesty and for whom information on amnesty has been updated in his/her judicial record, the words “no previous criminal conviction” shall be written.

3. Information on the ban on holding of certain posts or establishment or management of enterprises or cooperatives:

a/ For a person not banned from holding certain posts, establishing or managing enterprises or cooperatives under a ruling on bankruptcy declaration, the words “not banned from holding certain posts, establishing or managing enterprises or cooperatives” shall be written;

b/ For a person banned from holding certain posts, establishing or managing enterprises or cooperatives under a ruling on bankruptcy declaration, posts subject to the ban and the duration of the ban on establishment or management of enterprises or cooperatives” shall be written.

In case individuals, agencies or organizations make no request, details specified in this Clause will not be written in judicial record cards.

Article 43. Contents of judicial record card No. 2

1. Full name, sex, date and place of birth, nationality, place of residence, serial number of the identity card or passport of the person to whom the judicial record card is issued, and full names of his/her parents and spouse.

2. Previous criminal conviction:

a/ For an unconvicted person, the words “no previous criminal conviction” shall be written.

b/ For a convict, his/her remitted previous criminal conviction, time of remission, previous criminal conviction not yet remitted, date of judgment pronouncement, serial number of the judgment, the court which has pronounced the judgment, crime, applicable article(s) and clause(s) of law, principal and additional penalties, civil obligation in the criminal judgment, court fee, and state of judgment enforcement.

In case a person is convicted under different judgments, information on his/her previous criminal convictions shall be written in the temporal order.

3. Information on the ban on holding of certain posts or establishment or management of enterprises or cooperatives:

a/ For a person not banned from holding certain posts, establishing or managing enterprises or cooperatives under a ruling on bankruptcy declaration, the words “not banned from holding certain posts, establishing or managing enterprises or cooperatives” shall be written;

b/ For a person banned from holding certain posts, establishing or managing enterprises or cooperatives under a ruling on bankruptcy declaration, posts subject to the ban and the duration of the ban on establishment or management of enterprises or cooperatives shall be written.

Section 2. ISSUANCE OF JUDICIAL RECORD CARDS

Article 44. Competence to issue judicial record cards

1. The National Center for Judicial Records shall issue judicial record cards to the following persons:

a/ Vietnamese citizens whose places of permanent or temporary residence are unidentifiable;

b/ Foreigners who resided in Vietnam.

2. Provincial-level Justice Departments shall issue judicial record cards to the following persons:

a/ Vietnamese citizens permanently or temporarily residing in Vietnam;

b/ Vietnamese citizens currently residing overseas;

c/ Foreigners currently residing in Vietnam.

3. The Director of the National Center for Judicial Records, directors of provincial-level Justice Departments or their authorized persons shall sign judicial record cards and take responsibility for their contents.

When necessary, the National Center for Judicial Records and provincial-level Justice Departments shall verify the conditions on automatic remission of previous criminal convictions upon issuance of judicial record cards.

4. The issuance of judicial record cards must be recorded in judicial record card issuance books made according to a form set by the Minister of Justice.

Article 45. Procedures for requesting the issuance of judicial record card No. 1

1. A requester for a judicial record card shall submit a declaration requesting the issuance thereof enclosed with the following papers:

a/ A copy of the identity card or passport of the person requested to be issued a judicial record card;

b/ A copy of the household registration book or certificate of permanent or temporary residence of the person requested to be issued a judicial record card.

2. Individuals shall submit declarations requesting the issuance of judicial record cards and enclosed papers to the following agencies:

a/ Vietnamese citizens shall submit their declarations to provincial-level Justice Departments in localities where they permanently reside. In case they have no place of permanent residence, they shall submit such a declaration to the provincial-level Justice Department in the locality where the requester temporarily resides. A requester residing overseas shall submit such a declaration to the provincial-level Justice Department in the locality where he/she resided before his/her departure;

b/ Foreigners residing in Vietnam shall submit their declarations to provincial-level Justice Departments in localities where they reside. In case they have left Vietnam, their declarations shall be submitted to the National Center for Judicial Records.

3. Individuals may authorize other persons to carry out procedures for requesting the issuance of judicial record cards. The authorization must be established in writing under law. In case a requester for a judicial record card is a parent, spouse or child of the person requested to be issued a judicial record card, no written authorization is required.

4. When requesting the issuance of judicial record cards, agencies and organizations specified in Clause 3, Article 7 of this Article shall send written requests to provincial-level Justice Departments in localities where persons requested to be issued judicial record cards permanently or temporarily reside. In case it is impossible to identify places of permanent or temporary residence of persons requested to be issued judicial record cards, written requests shall be sent to the National Center for Judicial Records. A written request must clearly indicate the address of the requesting agency or organization, the purpose of use of the judicial record card and information on the person requested to be issued a judicial record card under Clause 1, Article 42 of this Law.

5. The Minister of Justice shall set the form of declaration requesting the issuance of judicial record cards.

Article 46. Procedures for requesting the issuance of judicial record cards No. 2

1. Procedure-conducting agencies specified in Clause 2, Article 7 of this Law which request the issuance of judicial record cards shall send their written requests to provincial-level Justice Departments in localities where persons requested to be issued judicial record cards permanently or temporarily reside. In case it is impossible to identify places of permanent or temporary residence of persons requested to be issued judicial record cards or these persons are foreigners residing in Vietnam, written requests shall be sent to the National Center for Judicial Records. Written requests must clearly indicate information on persons requested to be issued judicial record cards under Clause 1, Article 43 of this Law.

In case of emergency, competent persons of procedure-conducting agencies may request the issuance of judicial record cards by telephone, fax or otherwise and shall send written requests within 2 working days after requesting the issuance of judicial record cards.

2. Procedures for issuance of judicial record cards No. 2 to individuals comply with Clauses 1 and 2, Article 45 of this Law. Individuals who request the issuance of a judicial record card No. 2 may not authorize others to carry out procedures for such request.

Article 47. Search for information for issuance of judicial record card

1. In case a person requested to be issued a judicial record card has only one place of permanent residence in a province or centrally run city since he/she was full 14 years or older, his/her judicial record information shall be searched at the provincial-level Justice Department in the locality where he/she permanently resides.

2. In case a person requested to be issued a judicial record card has resided in more than one province or centrally run city since he/she was full 14 years or older, his/her judicial record information shall be searched at the provincial-level Justice Department which has received the written request and the National Center for Judicial Records.

3. In case a person requested to be issued a judicial record card is a Vietnamese citizen who once resided overseas or a foreigner, his/her judicial record information shall be searched at the provincial-level Justice Department which has received the written request and the National Center for Judicial Records.

4. In case it is impossible to identify the place of permanent or temporary residence of a person requested to be issued a judicial record card, his/her judicial record information shall be searched at the National Center for Judicial Records.

Article 48. Time limit for issuance of judicial record cards

1. The time limit for issuance of a judicial record card is 10 days after the receipt of a valid request. In case a person requested to be issued a judicial record card is a Vietnamese citizen who has resided in different localities or once resided overseas, or a foreigner specified in Clauses 2 and 3, Article 47 of this Law, and in case of necessity to verify the conditions on automatic remission of previous criminal convictions specified in Clause 3, Article 44 of this Law, the time limit is 15 days.

2. In case of emergency specified in Clause 1, Article 46 of this Law, the time limit is 24 hours after the receipt of a request.

Article 49. Refusal to issue judicial record cards

Judicial record database-managing agencies may refuse to issue judicial record cards in the following cases:

1. The issuance of judicial record cards falls beyond their competence;

2. Requesters of issuance of judicial record cards for other persons fail to satisfy the conditions specified in Article 7 and Clause 3, Article 45 of this Law;

3. Papers enclosed with declarations requesting judicial record cards are insufficient or forged.

In case of refusal to issue a judicial record card, a written notice thereof shall be made, clearly stating the reason.

Article 50. Supplementation, correction, withdrawal or revocation of judicial record cards

Judicial record card-issuing agencies may supplement, correct, withdraw or revoke judicial record cards in case these cards contain inaccurate or unlawful details.

Chapter V

HANDLING OF VIOLATIONS AND SETTLEMENT OF COMPLAINTS AND DENUNCIATIONS ABOUT JUDICIAL RECORDS

Article 51. Handling of violations

1. Persons competent to manage judicial records who violate the provisions of this Law shall, depending on the nature and severity of their violations, be disciplined or examined for penal liability. If causing damage, they shall pay compensations under law.

2. Persons who violate the provisions of this Law shall, depending on the nature and severity of their violations, be administratively sanctioned or examined for penal liability. If causing damage, they shall pay compensations under law.

Article 52. Right to lodge complaints

1. Individuals, agencies and organizations requesting the issuance of judicial record cards may lodge complaints in the following cases:

a/ They have grounds to believe that the refusal to issue a judicial record card is unlawful or the issuance of a judicial record card beyond the prescribed time limit infringes upon their legitimate rights and interests;

b/ They have grounds to believe that the issued judicial record card has inaccurate details, infringing upon their legitimate rights and interests.

2. The statute of limitations for lodging a first-time complaint about an act specified in Clause 1 of this Article is 45 days from the date of receipt of a written notice of refusal or the date of expiration of the time limit for issuing judicial record cards or the date of receipt of a judicial record card. In case of objective obstacles, this statute of limitations is 60 days.

The statute of limitations for lodging a second-time complaint is 30 days after receiving a competent person’s decision on complaint settlement.

Article 53. Competence to settle complaints

1. Directors of provincial-level Justice Departments are competent to settle complaints about their acts specified in Clause 1, Article 52 of this Law. Complainants who disagree with complaint settlement decisions of directors of provincial-level Justice Departments may further lodge complaints with chairpersons of provincial-level People’s Committees or institute administrative lawsuits at courts.

2. The Director of the National Center for Judicial Records is competent to settle complaints about his/her acts specified in Clause 1, Article 52 of this Law. Complainants who disagree with complaint settlement decisions of the Director of the National Center for Judicial Records may further lodge complaints with the Minister of Justice or institute administrative lawsuits at courts.

3. In case complainants disagree with complaint settlement decisions of chairpersons of provincial-level People’s Committees or the Minister of Justice, or if their complaints are not settled by these persons upon the expiration of the time limit for complaint settlement, they may institute administrative lawsuits at courts.

4. The director of a provincial-level Justice Department or the Director of the National Center for Judicial Records shall settle a complaint within 15 days after receiving it.

The chairperson of a provincial-level People’s Committee or the Minister of Justice shall settle a complaint within 30 days after receiving it.

Article 54. Denunciations

Citizens have the right to denounce to competent agencies, organizations or individuals illegal acts of competent persons in managing judicial records, causing damage or threatening to cause damage to the State’s interests, legitimate rights and interests of citizens, agencies or organizations.

Denunciations shall be settled under the law on settlement of denunciations.

Chapter VI

IMPLEMENTATION PROVISIONS

Article 55. Effect

This Law takes effect on July 1, 2010.

Article 56. Transitional provisions

1. Judicial record information on previous criminal convictions or ban on holding of certain posts or establishment or management of enterprises or cooperatives available before the effective date of this Law must be provided by courts, procuracies, civil judgment enforcement agencies and competent agencies of the Ministry of Public Security and the Ministry of National Defense to the National Center for Judicial Records or provincial-level Justice Departments to serve the issuance of judicial record cards.

2. The Ministry of Justice shall coordinate with the Supreme People’s Court, the Supreme People’s Procuracy, the Ministry of Public Security and the Ministry of National Defense in organizing the sharing and provision of judicial record information on previous criminal convictions or ban on holding of certain posts or establishment or management of enterprises or cooperatives available before the effective date of this Law for the development of judicial record databases.

3. The Government shall coordinate with the Supreme People’s Court and the Supreme People’s Procuracy in guiding procedures for searching, sharing or providing judicial record information specified in Clauses 1 and 2 of this Article.

Article 57. Implementation detailing and guidance

The Government, the Supreme People’s Court and the Supreme People’s Procuracy shall, within the ambit of their tasks and powers, detail and guide the implementation of this Law’s articles and clauses assigned to them, and guide other necessary contents of this Law to meet state management requirements.

This Law was passed on June 17, 2009, by the XIIth National Assembly of the Socialist Republic of Vietnam at its 5th session.

Chairman of the National Assembly
NGUYEN PHU TRONG