Luận án Perfecting the law on procurators of the people’s procuracy in exercising the right to prosecution to meet the requirements of judicial reform in Vietnam

HO CHI MINH NATIONAL ACADEMY OF POLITICS LE TUAN PHONG PERFECTING THE LAW ON PROCURATORS OF THE PEOPLE’S PROCURACY IN EXERCISING THE RIGHT TO PROSECUTION TO MEET THE REQUIREMENTS OF JUDICIAL REFORM IN VIETNAM SUMMARY OF DOCTORAL THESIS FIELD OF STUDY: THEORY AND HISTORY OF THE STATE AND THE LAW Code: 62 38 01 01 HA NOI - 2017 The thesis was completed at Ho Chi Minh National Academy of Politics Supervisor: Assoc. Prof., Dr. Nguyen Tat Vien Reviewer 1: ...................................................... ...................................................... Reviewer 2: ...................................................... ...................................................... Reviewer 3: ...................................................... ...................................................... The thesis shall be defended in front of the Thesis Committee at Academy Level at Ho Chi Minh National Academy of Politics At...... hour....... date...... month...... year 20.... The thesis can be found at the National Library and The Library of Ho Chi Minh National Academy of Politics 1 INTRODUCTION 1. The necessity of the topic Since its establishment, the Democratic Republic of Vietnam has paid close attention to its prosecutors. Thus, the legal issues of this title were corrected in the first legal documents of the people's democratic government. If the first years, prosecution and prosecutor regime was associated with the organization and operation of the Court, the birth of the People's Procuracy in 1960 marked a major change of this regime. The position and role of procurators in the system of agencies of the Procuracy and the State apparatus were confirmed in the 1959 Constitution, the Law on Organization of the People's Procuracy in 1960, and many guiding documents. Procurator is a constitutional judicial officer, appointed in accordance with the law to perform the function of exercising the right to prosecution, supervising judicial activities, protecting the Constitution and law, protecting human rights, civil rights, protecting the socialist regime, ensuring strict, fair and uniform law enforcement. Together with the development of the judicial system, procurator law has gradually improved, creating a solid legal basis to continue building a team of procurators to meet the requirements of the judicial reform. However, procurator's process of carrying out duties shows that the current law provisions do not guarantee the procurator to actively carry out their functions and tasks. In the process of exercising the right to prosecution, there are still cases of missing criminal offenses. The ratification of decisions on the application, change and cancellation of preventive measures is still incorrect in some cases. There is still a case of suspending the investigation of the accused, suspending the case because the accused did not commit crime. The contingent of procurators is 2 insufficient in number and weak in qualifications and professional capacity. This situation is due to many reasons, out of which the basic reason is the legal basis for the title Prosecutor of the People’ Procuracy in exercising the right to prosecution has not been completed as required by the judicial reform. On May 24, 2005, the Politburo issued Resolution No. 48 / NQ-TW "On the Strategy for the development and improvement of the Vietnamese legal system to 2010, with the orientation to 2020", which defines the task ‘To complete the law on organization and operation of the Procuracy in the direction of ensuring good performance of the prosecution function and the judiciary activities control function’’. The Politburo's Resolution No.49 / NQ-TW dated June 2, 2005 on the Judicial Reform Strategy up to 2020 sets the tasks: "...To clearly define the administrative management authority together with judicial responsibilities and powers in judicial litigation activities towards the direction of increasing the authority and responsibility for investigators, procurators and judges so that they can take initiative in performing their tasks, raising their independence and responsibility before the law..." In the context of implementing the Judicial Reform Strategy, improving legal provisions on prosecutors of the People's Procuracy in exercising prosecution right is an important and urgent but long-term task, and should be conducted on the basis of the provisions of the 2013 Constitution. For the reasons mentioned above, the PhD candidate selected the topic: "Improving the law on prosecutors of the People's Procuracy in exercising prosecution right in accordance with requirements of judicial reform in Vietnam" as the Law doctoral thesis, specialized in the Theory and History of the State and Law. 3 2. Research purposes and research tasks of the thesis 2.1. Research purposes Analyzing and clarifying the scientific argumentation of the theory and practice of improving the law on procurator of the People’s Procuracy in exercising the right to prosecute, collating and evaluating the actual situation of law, proposing solutions to improve the law on prosecutors of the People's Procuracy in exercising the right to prosecute under the requirements of judicial reform. 2.2. Research tasks - Overviewing of domestic and foreign research findings related to the law on procurator of the People’s Procurary in exercising the right to prosecution; Identifying issues that need further study. - Based on the new legal thinking on the socialist rule-of-law state of Vietnam and the 2013 Constitution, to build the theoretical basis for improving the law on procurators of the People's Procuratorate in exercising the right to prosecution; researching legislation on procurators/prosecutors in exercising prosecution right in some countries, drawing reference values that can be applied in Vietnam. - Assessing the current state of law, the practice of applying the law on procurators of the People’s Procuratorate in exercising the right to prosecution, pointing out advantages, limitations and causes. - Requesting and proposing solutions to improve the law on procurators of the People's Procuratorate in exercising prosecution right in accordance with the requirements of judicial reform. 3. Research subjects and research scope 3.1. Research subjects The thesis studies the theoretical and practical issues of improving the law on procurators of the People's Procuratorate in the practice of 4 prosecution right in accordance with the requirements of judicial reform; The main focus is on legal provisions on prosecutors in the exercise of prosecution right from the point of view of theory and history of the state and the law. 3.2. Research scope The thesis focuses on studying the provisions of law on procurators of the People's Procuratorate in exercising the right to prosecution in the whole country. Research period is from the issuance of the Politburo's Resolution No. 08 / NQ-TW, dated January 2, 2002 "On some key judicial tasks in the coming time" till 2015. 4. Theoretical basis and research methodology The thesis deals with the subject of Marxism-Leninism, Ho Chi Minh's ideology and our Party's views on the state and law, on the improvement of the law in the field of organization and operation of the People's Procuracy. The research methodology used in the thesis is the dialectical materialism and historical materialism. Based on the principles of common relation between social phenomena and social processes, the principle of development, the PhD candidate used a number of rules and pairs of categories in the process of solving problems in the thesis content. The specific research methods used in the thesis are: System method is applied in chapter 1; Analytical and synthesis methods are used in all chapters 2, 3 and 4 of the thesis; Comparative method is used to study foreign experiences; In Chapter 3, the author uses statistical methods and synthesis methods. 5. New contributions of the thesis - Developing the concept of the law on procurator of the People’s Proracuratorate in exercising the right to prosecution; Criteria for assessing 5 the degree of completion and conditions to ensure the improvement of the law on procurator of the People’ Proracuratorate in exercising the right to prosecution under the requirements of judicial reform. - Overviewing and evaluating the history of establishment and development of law on prosecutors of the People's Procuratorate in exercising prosecution right in Vietnam from 1945 untnil before 2002; Assessing the current state of law and the practical application of law on procurators in exercising the right to prosecution from 2002 to 2015; Identifying the views and solutions to improve the law on prosecutors in exercising prosecution right in accordance with the requirements of judicial reform in Vietnam. 6. Theoretical and practical meanings of the thesis - In theory: The research results of the dissertation contribute to the development of the theory of improving the law on procurator of the People’s Procuratorate in exercising prosecution right in the context of judicial reform in Vietnam. - In practice: The thesis can be used as a reference for functional agencies in the process of studying and improving criminal policies and criminal procedures. The dissertation is also a reference in researching and teaching at law training institutions, training institutions specialized in prosecution and those who are interested in this field. 7. Structure of the thesis In addition to the introduction, conclusion and list of works published by the author relating to thesis topic and the reference list, the thesis consists of 4 chapters and 11 sections. 6 Chapter 1 SUMMARY OF RESEARCH SITUATION RELATING TO THE THESIS 1.1. DOMESTIC RESEARCH SITUATION 1.1.1. Law on procurator From the scientific approach of the authors in 08 research works (in the forms of: scientific topics, books, theses, dissertations), the thesis synthesized the basic contents related to the content of ‘The Law on Prosecutors’, such as: "Theoretical and practical basis for building a socialist rule-of-law state of the people, by the people, for the people" by Tran Hau Thanh; "Democracy and democratic law" by Ngo Huy Cuong; "Judicial Institutions in the rule-of-law State’’ by Assoc. Prof., Dr. Nguyen Dang Dung; "Some issues of prosecution responsibility in investigation activities, attaching prosecution to investigation in accordance with the requiremens of the judicial reform" by Nguyen Hai Phong et al.; "Prosecution right in Vietnam" by Le Thi Tuyet Hoa. 1.1.2. Law on procurators of the People's Procuracy in exercising the right to prosecution By studying, analyzing and synthesizing the basic contents related to "Law on procurators of the People's Procuratorate in the exercise of prosecution right" in 10 typical scientific works (under the following themes: science, books, dissertation, thesis), the thesis has shown approach and explanation content, as well as the solutions of each author. There are some typical works such as "Procuracy in the State of Law" by Nguyen Dang Dung and his colleagues; "Summing up some theoretical and practical issues on the work of the People's Procuratorate through 55 years of organization and operation" of the Supreme People's Procuracy; "Theoretical and practical foundation of reform of criminal procedure to meet the requirements of judicial reform" by Le Huu The; Nguyen Thi 7 Thuy’s "Criminal Litigation Model in Vietnam and the Problem of Application of Litigation"; Vu Duc Ninh’s "Jurisdiction of the Procuracy during prosecution stage"; Vu Moc’s "Improving the quality of the prosecution service, increasing the responsibility of the Procuracy in investigating and implementing the prosecution mechanism"; "Principle of Centralized Unity in the People's Procuracy before the requirements of the judicial reform" by Dao Tri Uc; "Principles of ensuring control among agencies in exercising the legislative, executive and judicial powers in the organization and operation of our State apparatus" by Pham Manh Hung. 1.1.3. Improving the law on procurators of the People's Procuracy in exercising the right to prosecution In this section, the dissertation presents the basic contents of 21 research projects related to "Improving the Law on Prosecutors in exercising prosecution right" in the context of judicial reform. The content of the thesis focuses on: the approach, theoretical basis and the authors' views on the current situation and solutions. Some of the typical works can be listed are as follows: "Humanity of the Constitution and the nature of State agencies" by Nguyen Dang Dung; "Human Rights, Civil Rights in the Socialist State of Vietnam" by Tran Ngoc Duong; The topic "Reforming judicial agencies, improving the judicial system, improving the effectiveness and efficiency of the trial of the court in the socialist rule- of-law state of the people, by the people, for the people" by Uong Chu Luu; Doctoral thesis by Nguyen Tien Son "The relationship between investigation bodies and the Procuracy in criminal prosecution procedure in Vietnam"; The article "Continue to renovate the organization and operation of the People's Procuracy to meet the requirements and tasks in the new situation" by Nguyen Hoa Binh; "Improving the current law to strengthen the prosecutor's responsibility in investigation activities, attaching prosecution to investigation activities to meet the requirements of judicial reform "by Nguyen Hong Vinh. 8 1.2. OVERSEAS RESEARCH SITUATION 1.2.1. Law on procurator The dissertation presents selected topics related to the Law on procurators in scientific research projects abroad (in the forms of textbooks, monographs, journal articles). Especially the reasonable contents and nucleus that are similar to the law on procurator of Vietnam. Typically, there are works such as: the "prosecution regime curriculum" of the National Institute of Public Prosecutors of China; The article "Speeding up the establishment of equal, efficient and prestige socialist justice system" by Vuong Hong Tuong; Kha-zi-no-va V.M in the work "Procurator in Criminal prosecution procedure". 1.2.2. Law on prosecutors in exercising the right to prosecution The dissertation has selected and presented the research contents related to the "Law on Prosecutors in the exercise of prosecution right" in some typical representative countries such as the Russian Federation; Japan; and South Korea through the synthesis of scientists' views on Procurator/Prosecutor subjects; the relationship between procurators and procedural subjects and the bodies conducting legal proceedings in the course of exercising the right to prosecution for the settlement of criminal cases. There are typical works such as: The article "Prosecutors in Criminal Justice" by D.A. Be-ve-shen-co; The work of UNDP and the Ministry of Justice of Vietnam "Studying the organization and operation of the judicial system of five countries - China, Indonesia, Japan, South Korea and Russia". 1.2.3. Improving the law on prosecutors in exercising the right to prosecution The thesis summarizes the research content of foreign scientists related to the improvement of procurator law in exercising prosecution right in some countries such as the Russian Federation; China, Germany, the United Kingdom, and the United States. Specifically, there are works 9 like: "Theses on judicial reform in the Russian Federation" by four professors in the advisory group of the President of the Russian Federation on judicial reform; "Research Report on the Organization and Operation of the Judicial System of the People's Republic of China" by Vivienne Bath; "On the Organizational Model of the Procuracy in the Context of Judicial Reform in Viet Nam" by Richard S. Shiner, UNDP Specialist. 1.3. ISSUES NEED FURTHER STUDYING * In theory, the thesis continues to study and clarify - Synthesis of rational nuclei in research review and conceptualizing prosecution rights; exercising the right to prosecution; Developing the concept of law on procurators of the People's Procuratorate in exercising the right to prosecution. - Developing criteria for assessing the level of completion of law and conditions to ensure the improvement of procurator law in exercising prosecution right in accordance with judicial reform’s requirements; Summarizing reference values that can be used in Vietnam from Procurator/Prosecutor's Laws in exercising prosecution right of some countries in the world. * In practice, the thesis focuses on clarifying - The process of formation and development of procurator law in exercising the right to prosecution in Vietnam from 1945 to 2015. - Analyzing and assessing the practical application of the law on procurator of the People’s Proracuratorate in exercising the right to prosecution. Pointing out the advantages, limitations and causes; Expressing views and proposing solutions to improve the law on procurators of the People's Procuratorate in exercising their right to prosecution to meet the requirements of judicial reform in Vietnam. 10 Summary of Chapter 1 The scientific works mentioned in chapter 1 of the thesis are all related to the contents of the thesis. So far there has been no works directly, systematically and comprehensively studying on improving the law on procurators of the Prople’s Procuratorate in exercising prosecution right in association with the requirements of judicial reform and the 2013 Constitution. Therefore, the synthesis and evaluation of the research works in the country and abroad on this content will contribute to summarize the achievements of the published works and at the same time point out issues that need further studying. Chapter 2 THEORETICAL BASIS IN IMPROVING THE LAW ON PROCURATORS OF THE PEOPLE’S PROCURATORATE IN EXERCISING PROSECUTION RIGHT 2.1. LEGAL DEFINITION OF THE PROCURATORS OF THE PEOPLE’ PROCURACY IN EXERCISING THE PROSECUTION RIGHT 2.1.1. The concept of prosecution right, the exercise of the right to prosecution - The right to prosecution is the right of the people that is delegated to the procuracy/prosecution body to detect crimes and prosecute criminal offenders and at the same time maintain the prosecution before the court to ensure that human rights and civil rights are recognized, respected, protected and implemented in accordance with the Constitution and the law. - Exercising the right to prosecution means that the Procuracy uses a combination of measures prescribed by law to prosecute criminal offenders and bring the offenders to trial before the courts and defend the accused. This is to ensure that human rights and civil rights are recognized, 11 respected, protected and implemented in accordance with the Constitution and the law. 2.1.2. The concept of the law on procurators of the People's Procuracy in exercising the right to prosecution - Procurator is a constitutional legal subject in the People's Procuracy, appointed in accordance with the provisions of law to perform the function of exercising the right to prosecution and control of judiciary activities in order to protect the strict and clear legislation, ensure human rights and civil rights to be recognized, respected, protected and gu