Within the criminal policy of the Vietnamese State, alongside the objectives of punishment and deterrence, criminal law places particular emphasis on humanitarianism, rehabilitation, and the prevention of recidivism. The institution of criminal record expungement constitutes a clear manifestation of these principles. By removing the adverse legal consequences arising from a legally effective criminal judgment, the State creates conditions for convicted persons, after serving their sentences, to reintegrate into the community, stabilize their lives, and become useful members of society.
In essence, expungement of criminal records reflects the principle of humanitarianism, respect for human rights, and consistency with the orientation toward building a socialist rule-of-law state. The recognition of such a mechanism not only encourages offenders to genuinely rehabilitate themselves but also helps eliminate legal, psychological, and social barriers that might otherwise increase the risk of reoffending. The most significant legal consequence of expungement is that the person whose criminal record has been expunged is deemed not to have been convicted, thereby restoring their ordinary legal status in social relations.
However, in practice, the application of this institution still reveals a number of shortcomings, particularly concerning the conditions for expungement, the determination of statutory time limits, and the management mechanism of criminal record databases. Therefore, a comprehensive study of the institution of criminal record expungement, both theoretically and practically, is necessary in order to further refine Vietnamese criminal law.
1. Overview of Criminal Records and Cases Not Considered as Having a Criminal Record
A criminal record constitutes an adverse personal legal consequence imposed on an individual convicted by a legally effective criminal judgment. This consequence is recorded in the criminal record database and exists for a certain statutory period in accordance with the Criminal Code. During the subsistence of a criminal record, the convicted person may face restrictions or disadvantages in exercising certain legal rights and obligations, such as holding public office, practicing certain professions, seeking employment, or being subject to aggravated criminal liability in cases of recidivism.
Nevertheless, not all convicted persons are deemed to have a criminal record. Vietnamese criminal law recognizes several exceptional cases in which a criminal record does not arise, ensuring necessary leniency proportionate to the nature and degree of social danger of the offense. Specifically, individuals convicted of unintentional crimes classified as less serious or serious are not considered to have a criminal record, as such conduct demonstrates a lower degree of social danger and lacks clear criminal intent. In addition, persons exempted from punishment are not deemed to have a criminal record, since the conviction in such cases primarily serves to establish the unlawfulness of the act without imposing adverse legal consequences.
Particularly, the law provides preferential treatment for offenders under 18 years of age. Accordingly, persons aged from 14 to under 16 who commit crimes; persons aged from 16 to under 18 who commit less serious, serious, or very serious crimes due to negligence; and those subjected to judicial educational measures at reform schools are not regarded as having a criminal record. This regulation is consistent with the principles governing the handling of juvenile offenders, which prioritize education and assistance over punishment.
2. Forms of Criminal Record Expungement for Individuals under Current Law
The 2015 Criminal Code (as amended and supplemented in 2017) provides three forms of expungement for individuals, reflecting differentiated criminal liability based on the nature and seriousness of the offense and the offender’s personal background.
First, automatic expungement clearly demonstrates the humanitarian nature of criminal law, facilitating the early stabilization and reintegration of persons who have completed their sentences. Pursuant to Article 70 of the Criminal Code, persons not convicted of crimes against national security or crimes against peace and humanity shall automatically have their criminal records expunged upon completion of the principal penalty (or the expiration of the probation period in cases of suspended sentences or the statute of limitations for enforcement of judgments), as well as any additional penalties and other obligations such as court fees and civil compensation. The waiting period ranges from one to five years depending on the severity of the imposed sentence, provided that no new offense is committed during that period. Where an additional penalty has a longer duration, expungement may only occur upon completion thereof. In cases where the statute of limitations for enforcement has expired, expungement is likewise automatic if no new offense is committed within the prescribed time limit. Upon fulfillment of these conditions, the criminal record management authority shall update the database and issue a criminal record certificate confirming the absence of a criminal record upon request, without requiring the individual to submit an application to the court.
Second, expungement by court decision applies to persons convicted of crimes against national security or crimes against peace and humanity—offenses considered particularly serious under the Criminal Code. In such cases, expungement is not automatic but requires a petition and judicial consideration. The court shall assess the nature of the offense, the offender’s rehabilitation process, compliance with the law, and post-sentence conduct. The general condition requires full completion of principal and additional penalties and other obligations, as well as the absence of new offenses within a statutory period ranging from one to seven years depending on the severity of the sentence. Where additional penalties such as probation, residence restrictions, or deprivation of certain civil rights exceed this period, expungement may only be considered upon completion thereof. If an application is rejected, the individual may reapply in accordance with statutory provisions.
Third, expungement in special circumstances embodies a strong humanitarian orientation. Where a convicted person demonstrates clear progress, strict compliance with the law, diligence in work, and meritorious conduct, and is recommended by the employing organization or local authority, the court may grant expungement earlier than the ordinary statutory period. The key condition is that at least one-third of the statutory waiting period has been completed and no new offense has been committed. This mechanism encourages genuine repentance and self-improvement.
3. Expungement for Commercial Legal Entities
A significant innovation of the 2015 Criminal Code (as amended in 2017) is the recognition of criminal liability of commercial legal entities, thereby necessitating provisions on expungement for such entities. Under current law, a commercial legal entity shall automatically have its criminal record expunged if, within two years from the completion of principal and additional penalties and other judicial decisions, it does not commit a new offense.
Although this represents a substantial legislative development, limitations remain. The law does not differentiate waiting periods based on the severity of penalties imposed on the entity, nor does it provide specific regulations on certification of expungement, resulting in practical difficulties in implementation and management.
4. Practical Challenges in the Application of Criminal Record Expungement
In practice, one of the most significant obstacles concerns the requirement to complete “other decisions” of the judgment, including court fees and civil compensation obligations. In many cases, victims do not request enforcement or the convicted person lacks financial capacity, or the statute of limitations for civil enforcement has expired; nevertheless, such individuals are still deemed ineligible for expungement. This interpretation may unreasonably prolong adverse legal consequences and undermine the humanitarian purpose of the institution.
Furthermore, the concept of a “new offense” lacks consistent interpretation. Two prevailing views exist: one considers any conduct constituting a criminal violation sufficient; the other requires a legally effective conviction. This ambiguity results in inconsistent application among procedural bodies and criminal record management authorities.
Additional uncertainties arise in cases involving multiple offenses and aggregated sentences, as the law does not clearly specify whether the expungement period should be determined for each offense separately or based on the combined sentence. Moreover, the criminal record database system remains insufficiently synchronized, and inter-agency coordination is not yet fully effective, directly affecting citizens’ right to expungement.
Conclusion
The institution of criminal record expungement constitutes an important component of the Vietnamese criminal justice system, reflecting a balanced combination of strictness and humanitarianism in the treatment of offenders. By removing adverse legal consequences associated with criminal records, the law facilitates the full restoration of legal status, social reintegration, and prevention of recidivism.
Although current regulations establish relatively comprehensive mechanisms for individuals and commercial legal entities, practical challenges persist regarding eligibility conditions, interpretation of new offenses, determination of waiting periods in cases of multiple crimes, and criminal record management. These shortcomings affect not only the legitimate rights and interests of convicted persons but also the humanitarian and preventive effectiveness of criminal law.
Accordingly, continued refinement of the expungement regime is necessary, both legislatively and in implementation. Clearer and more unified guidelines, together with improved coordination among competent authorities, are essential to ensure that the institution of expungement operates in a consistent, transparent, and humane manner, thereby fulfilling its rehabilitative and preventive objectives within a just and progressive society.