Discussing the postponement of execution of prison sentences according to the provisions of the 2015 Penal Code - Some difficulties and proposals and recommendations

Discuss the regulations on postponing the execution of prison sentences as prescribed in Article 67 of the 2015 Penal Code (2015 Penal Code), thereby pointing out some limitations, difficulties and making specific proposals and recommendations.

1. Provisions on postponement of execution of prison sentences in the 2015 Penal Code
Postponement of execution of prison sentences is stipulated in Article 67 of the 2015 Penal Code as follows:

“1. A person sentenced to imprisonment may have his/her sentence postponed in the following cases:
a) If he/she is seriously ill, he/she will be postponed until his/her health recovers;
b) If a woman is pregnant or raising a child under 36 months old, he/she will be postponed until the child is 36 months old;
c) If he/she is the sole breadwinner in the family, and if he/she has to serve a prison sentence, the family will face special difficulties, he/she will be postponed for up to 01 year, except in cases where he/she is convicted of crimes against national security or other crimes that are very serious crimes or especially serious crimes;
d) If he/she is convicted of a less serious crime, due to official duties, he/she will be postponed for up to 01 year.
2. During the period of postponement of execution of prison sentences, if the person who is granted a postponement serving the sentence and then committing a new crime, the Court shall force that person to serve the previous sentence and combine it with the sentence of the new judgment according to the provisions of Article 56 of this Code”.
Thus, the Law stipulates 04 specific cases that satisfy the conditions prescribed by law, then the execution of the prison sentence shall be considered for postponement (Clause 1); At the same time, it also stipulates that in the event that a person who is in the period of suspension of serving a prison sentence commits a new crime, the Court will force that person to serve the previous sentence and combine it with the sentence of the new sentence according to the provisions of Article 56 of the 2015 Penal Code.
Regarding the procedure for suspending the serving of a prison sentence:
Pursuant to Article 24 of the 2019 Law on Enforcement of Criminal Judgments, which stipulates the procedure for suspending the serving of a prison sentence, as follows:
- For a person sentenced to imprisonment who is on bail, the Chief Justice of the Court that issued the decision to execute the sentence may, on his own or upon the request of the convicted person, the written request of the People's Procuracy at the same level, the criminal judgment enforcement agency of the district-level Police where the person serving the sentence resides, the criminal judgment enforcement agency of the military region where the person serving the sentence works or resides, issue a decision to postpone the serving of the prison sentence.
The request or written request must be sent to the Court that issued the decision to execute the sentence, along with relevant documents.
- Within 07 days from the date of receipt of the request or written request to postpone the execution of the prison sentence, the Chief Justice of the Court that issued the decision to execute the sentence must consider and decide.

In case of disagreement with the postponement of the execution of the prison sentence, the Chief Justice of the Court must respond in writing to the person who submitted the request or the agency that submitted the request and notify the People's Procuracy at the same level, stating clearly the reasons for non-acceptance.
- Within 03 working days from the date of issuance of the decision to postpone the execution of the prison sentence, the Court must send that decision to the following individuals and agencies:
+ The person whose sentence is postponed and the representative in case the person whose sentence is postponed is under 18 years old;
+ The People's Procuracy at the same level;
+ Criminal enforcement agency of the district-level police or the criminal enforcement agency of the military region where the person whose sentence is deferred resides or works;
+ Department of Justice where the Court that issued the decision to enforce the sentence is headquartered;
+ Ministry of Foreign Affairs in case the person whose sentence is deferred is a foreigner.
At the same time, pursuant to Clause 6, Article 25 of the Law on Enforcement of Criminal Judgments 2019, the provisions on the enforcement of the decision to defer the execution of a prison sentence are as follows:
Implementation of the decision to defer the execution of a prison sentence
...
6. At least 07 days before the expiration of the period of deferment of the prison sentence, the Chief Justice of the Court that decided to defer the execution of the prison sentence must notify in writing of the expiration of the deferment period and immediately send it to the individuals and agencies specified in Clause 3, Article 24 of this Law. After 07 days from the date of expiration of the period of suspension of execution of the prison sentence, if the person whose sentence is deferred does not appear at the criminal judgment enforcement agency of the district-level police or the criminal judgment enforcement agency of the military region to serve the sentence, the Head of the criminal judgment enforcement agency of the district-level police or the Head of the criminal judgment enforcement agency of the military region shall issue a decision to escort the person to serve the sentence, except in cases of force majeure or objective obstacles.

Thus, at least 07 days before the expiration of the period of suspension of execution of the prison sentence, the Chief Judge of the Court that decided to postpone the execution of the prison sentence must notify in writing of the expiration of the period of suspension and immediately send it to the person whose sentence is deferred.

Regarding the authority to postpone the execution of prison sentences: According to the provisions of Points d, đ and e, Clause 1, Article 44 of the 2015 Criminal Procedure Code: “1. The Chief Justice of the Court has the following duties and powers:... đ) Decide to postpone the execution of prison sentences....
In his absence, the Chief Justice of the Court shall authorize a Deputy Chief Justice of the Court to perform the duties and powers of the Chief Justice. The Deputy Chief Justice of the Court shall be responsible to the Chief Justice of the Court for the delegated duties”.

2. Some difficulties, shortcomings and proposals, recommendations
The regulation on postponement of execution of prison sentences is a regulation that is quite commonly applied in practice. To ensure that this regulation is applied consistently, the Council of Judges of the Supreme People's Court issued Resolution No. 03/2024/NQ-HDTP dated June 10, 2024 guiding the application of a number of provisions of the Penal Code on the statute of limitations for execution of judgments, exemption from execution of sentences, reduction of the imposed sentence, reduction of the term of execution of sentences in special cases, postponement of execution of prison sentences, temporary suspension of execution of prison sentences (Resolution No. 03/2024/NQ-HDTP). However, the practical application still faces a number of difficulties and problems that need to be further studied, supplemented and improved.

2.1. On postponement of execution of prison sentences and temporary suspension of execution of prison sentences

The provisions of Article 67 of the 2015 Penal Code only record cases that are considered for postponement of execution of prison sentences without specifying the concept of postponement of execution of prison sentences. The guidance content of Resolution No. 03/2024/NQ-HDTP also does not stipulate the concept of postponement of execution of prison sentences.
However, research with other provisions of the 2015 Penal Code shows that Article 68 of the 2015 Penal Code stipulates the temporary suspension of execution of prison sentences as follows:
“1. A person serving a prison sentence who falls into one of the cases specified in Clause 1, Article 67 of this Code may have his/her prison sentence temporarily suspended.
2. The period of temporary suspension shall not be counted towards the time of execution of the prison sentence”.
At the same time, this Article also does not provide the concept of temporary suspension of execution of prison sentences.
Based on the content of Article 67 and Article 68 of the 2015 Penal Code, it can be understood that the suspension of the execution of a prison sentence is carried out at the time when the person sentenced to imprisonment has not yet served the prison sentence, while the temporary suspension of the execution of a prison sentence is at the time when that person is serving the prison sentence. Correspondingly, the provisions on the subject with the authority to decide to postpone the execution of a prison sentence, temporarily suspend the execution of a prison sentence as well as the procedures and processes applied to these two cases are different, stipulated in the relevant Laws, namely the 2015 Criminal Procedure Code and the 2019 Law on Enforcement of Criminal Judgments. However, the author believes that the separation into 02 articles, Article 67 and Article 68, is not really necessary. Because these two articles only differ in the time of consideration, issuance of decisions and related procedures and processes, but in essence they are similar. "Temporary suspension" can be understood as temporarily stopping an activity for a certain period of time, not completely stopping it. "Postponement" also means moving something from the originally planned time to a later time; in essence, postponement is also the temporary suspension of an activity for a certain period of time without terminating that activity. The difference here is the use of words, but in essence, these two terms can have similar understandings. In addition, separating into a separate article, Article 68, is really unnecessary when the legislator stipulates that the cases of temporary suspension of the execution of a prison sentence are the cases stipulated in Clause 1, Article 67 on postponing the execution of a prison sentence. Therefore, the author recommends that when amending and supplementing the 2015 Penal Code, the legislator should amend and supplement in the direction of attracting the provisions of Article 68 into Article 67 and expressing them as a separate article. The author proposes that the content of the provision after being amended and supplemented is expressed as follows:

“3. A person who is serving a prison sentence and falls into one of the cases specified in Clause 1 of this Article may have his/her prison sentence postponed.

The time of postponement of serving the prison sentence in this case shall not be counted towards the time of serving the prison sentence”.

This amendment and supplement ensures logic and rigor in legislative techniques. Relevant provisions in corresponding laws also need to be adjusted accordingly.

2.2. Regarding the case of a woman raising a child under 36 months old
Point b, Clause 1, Article 67 of the 2015 Penal Code stipulates:

“A woman who is pregnant or raising a child under 36 months old shall have her sentence postponed until her child is 36 months old;”
The content of this provision is detailed in Article 7 of Resolution No. 03/2024/NQ-HDTP as follows:
“1. A person sentenced to imprisonment may have his/her sentence postponed when meeting all of the following conditions:
a) Belonging to one of the cases specified in Clause 1, Article 67 of the Penal Code.
In the case where a person sentenced to imprisonment is a pregnant woman, regardless of whether she intentionally becomes pregnant and gives birth continuously to avoid the obligation to serve the prison sentence or not, or a woman who is raising a child under 36 months old, regardless of whether it is her biological child or adopted child, the serving of the prison sentence may be postponed until the child is 36 months old.
…..
4. Resolving some cases after the execution of a prison sentence is postponed:
a) During the period of postponement of the execution of a prison sentence, if the person whose prison sentence is postponed becomes pregnant or must continue to raise a child under 36 months old, the Court may decide to grant them a postponement until the last child is 36 months old;
….”.
Thus, the content of this provision stipulates that in the case of a woman raising a child under 36 months old, regardless of whether it is her biological child or an adopted child, she can have her prison sentence postponed until the child is 36 months old. This is a case where there are still limitations and problems. Here, the author does not analyze or discuss the case of a woman raising a biological child, because in this case, considering a postponement of the prison sentence is completely in line with the morality and fine traditional culture of our nation. However, the content of the guidance clearly states that there is no distinction between biological children and adopted children, meaning that in the case of a woman adopting a child, she can still be considered for a postponement of the prison sentence.
Compared with the provisions of the 2010 Law on Adoption, Article 2 of this Law stipulates the purpose of adoption as follows:
“Adoption aims to establish a long-term, sustainable relationship between father, mother and child, for the best interests of the adopted person, ensuring Adopted children are raised, cared for and educated in a family environment”.
This is a suitable and humane provision to protect the rights and best interests of adoptees.

Article 13 of the 2010 Law on Adoption stipulates:

“Article 13. Prohibited acts
1. Taking advantage of adoption to profit, exploit labor, sexually abuse; kidnap, buy and sell children.
2. Forging documents to settle adoption.
3. Discriminating between biological children and adopted children.
4. Taking advantage of adoption to violate population laws.
5. Taking advantage of adoption of war invalids, people with revolutionary contributions, ethnic minorities to enjoy preferential regimes and policies of the State.
6. Grandparents adopting grandchildren or siblings adopting each other.
7. Taking advantage of adoption to violate the law, customs, ethics, and fine cultural traditions of the nation.”
Among these prohibited acts, there is no provision for taking advantage of adoption to “evade the obligation to serve a prison sentence”.
This is a loophole for subjects with bad intentions to take advantage of to commit improper acts, including taking advantage of adoption to request a postponement of serving a prison sentence.
For example: Subject Nguyen Thi B, in early 2022, when she knew that her illegal behavior would be investigated and that she would likely be forced to serve a prison sentence, she carried out procedures to adopt child C, at this time child C was 1 month old. The adoption procedures were carried out in accordance with the 2012 Law on Adoption and related legal documents. By early 2023, B was prosecuted, tried and sentenced to 4 years in prison. However, B was in the case of raising a child under 36 months old, so the execution of the prison sentence was postponed according to the provisions of Article 67 of the 2015 Penal Code.
Therefore, in this case, the consideration for a postponement of the execution of a prison sentence on the condition that the person is raising a child under 36 months old, regardless of whether it is a biological or adopted child, is not appropriate, does not ensure strictness in implementing the provisions of the 2015 Penal Code, and therefore does not ensure the principle of equality in criminal proceedings against offenders[1].
Clause 2, Article 7 of Resolution No. 03/2024/NQ-HDTP emphasizes: “must be associated with special circumstances and must be considered carefully and closely.”. However, in practice, when it is found that the above analysis conditions are met, it is possible to allow a person sentenced to imprisonment to postpone the execution of the prison sentence. This is a problem that needs to be resolved soon to ensure the effectiveness and efficiency of the 2015 Penal Code in practice.
The author recommends that the Supreme People's Court should promptly issue a document providing specific guidance for In the case of a woman who is raising a child under 36 months old who is an adopted child, the suspension of the prison sentence may be considered, provided that the Trial Panel needs to evaluate the adoption in specific cases. If there are signs of adopting a child to avoid serving a prison sentence or to postpone serving a prison sentence, the suspension of the prison sentence may not be considered, even if the adopted child is under 36 months old. In this case, the adoption does not satisfy the purpose of adoption as prescribed in Article 2 of the 2010 Law on Adoption. At the same time, the author recommends that when amending and supplementing the 2010 Law on Adoption, lawmakers should add to the provisions in Article 13 on prohibited acts as follows:
“1. Taking advantage of adoption for profit, exploiting labor, sexually abusing; kidnapping, trafficking of children or to evade responsibility for their illegal acts”.
Conclusion
The postponement of the execution of a prison sentence is a provision that reflects the humane and lenient policy of our Party and State. However, in order for the application of this provision to be truly in line with the Party's policies and guidelines, and to ensure strict implementation of the principles of handling crimes stipulated in the 2015 Penal Code, it is necessary to make adjustments and supplements to ensure strictness, caution and appropriateness. Therefore, it is absolutely necessary and objectively inevitable to continue researching and supplementing some limitations and difficulties in the application of the provisions of this Article.

According to the Court Magazine
https://tapchitoaan.vn/ban-ve-hoan-chap-hanh-hinh-phat-tu-theo-quy-dinh-cua-bo-luat-hinh-su-nam-2015-%E2%80%93-mot-so-vuong-mac-va-de-xuat-kien-nghi13698.html

Discussing the postponement of execution of prison sentences according to the provisions of the 2015 Penal Code - Some difficulties and proposals and recommendations

Practices

Team of Lawyer

Some new regulations on criminal proceedings

Provincial courts officially have the authority to review and re-trial cases from July 1

Right to start to sue belong to owner can buy in debt in fit copper purchase permission ...

Some issues with deposits and problems

Jurisdiction of the Military Court

Tham permission according to receive earth When prize decided the painting challenge ...

Discussing the postponement of execution of prison sentences according to the provisions of the 2015 Penal Code - Some difficulties and proposals and recommendations

Practices

Team of Lawyer

Some new regulations on criminal proceedings

Provincial courts officially have the authority to review and re-trial cases from July 1

Right to start to sue belong to owner can buy in debt in fit copper purchase permission ...

Some issues with deposits and problems

Jurisdiction of the Military Court

Tham permission according to receive earth When prize decided the painting challenge ...

Modal title