The quality of exercising the right to prosecution of prosecutors at the first instance criminal court hearings under the requirements of judicial reform in Vietnam

HO CHI MINH NATIONAL ACADEMY OF POLITICS TRAN VAN QUY THE QUALITY OF EXERCISING THE RIGHT TO PROSECUTION OF PROSECUTORS AT THE FIRST INSTANCE CRIMINAL COURT HEARINGS UNDER THE REQUIREMENTS OF JUDICIAL REFORM IN VIETNAM SUMMARY OF THE PHD THESIS FIELD OF STUDY: THEORY AND HISTORY OF STATE AND LAW Code: 62 38 01 01 HA NOI - 2017 The thesis is completed at the HO CHI MINH NATIONAL ACADEMY OF POLITICS Supervisors: Prof., Dr. Pham Hong Thai Reviewer 1: ............................................................................. Reviewer 2: ............................................................................. Reviewer 3: ............................................................................. The thesis will be defended in front of the Thesis Committee at Academy level, at the Ho Chi Minh National Academy of Politics At hour date month year The thesis can be found at: National Library and Library of Ho Chi Minh National Academy of Politics 1 INTRODUCTION 1. The necessity of the thesis The exercising of the right to prosecution is one of the two functions of the People's Procuracy is recognized by the Constitution. The 2013 Constitution recognizes that "the People's Procuracy exercises the right to prosecution and supervision of judiciary activities" (Article 107). The exercising of the right to prosecution in criminal proceedings is for State's to accuse the offender. It is implemented by the People’s Procuracy from the time of handling denunciation of crime, recommendation for institution to the whole process of institution, investigation, prosecution and adjudication of criminal cases in order to ensure that all criminal acts and criminal crimes are be detected, prosecuted, investigated, prosecuted and tried in a timely and lawful manner, to the right people, right crimes, in order to avoid wrongful judgment and to avoid missing out criminal acts and offenders; At the same time, not to limit human rights and citizen rights of prosecuted, arrested, detained persons. At the first instance trial of criminal cases, procurators participate as representatives of the procuracy on behalf of the State to exercise the right to prosecution in order to accuse the accused person. When exercising the right to prosecution during the adjudication of criminal cases, procurators shall have the duty and power such as the proclamation of indictments and decisions of the People's Procuracy about the case at the court hearings; participating in the questioning and impeachment of the accused at the first instance trial; arguing with the defense counsel and people participating in proceedings at the first instance trial. To exercise the right to prosecution of procurators at the first- instance trial of a criminal case is to prosecute or accuse the offender before the court in accordance with the provisions of law, ensuring that the crimes are punished and innocent people are not being arbitrary accused. Over the past time, the Party has made many viewpoints and policies to ensure the quality of exercising the right to prosecution in general and the exercising of the right to prosecution of procurators in the first instance trial of 2 criminal cases in particular. Resolution No 08-NQ / TW dated 2/1/2002 of the Politburo on "Some key tasks of the judiciary activities in the coming time" states that: "The procuracy at all levels should performs well the mandate of prosecuting and supervising the observance of law in judicial activities. The prosecution must be carried out right from the prosecution of the case and in the course of the proceedings to ensure that crimes are punished and innocent people is not being arbitrary accused. Resolution No. 49 / NQ-TW of the Politburo on Judicial Reform Strategy until 2020, the Instrument of the ninth Congress of the Xth Party Central Committee request that the strengthening the implementation of the Judicial Reform Strategy up to 2020 need to ensure condition for the People's Procuracy to perform well its prosecution function. Those viewpoints have been institutionalized in the Constitution of 2013, the Law of Organization of the People's Procuracy in 2014, the Criminal Procedure Code in 2003, and the Criminal Procedure Code in 2015. Implementing the Party's viewpoints and policies and the State's law on the exercising the right to prosecution of procurators, over the past time, the People's Procuracy has effectively carried out its function of exercising the right to prosecution at the first-instance trials of criminal cases, making great contributions to the fight against crimes to maintain social order and safety and to protect human rights and the legitimate rights and interests of citizens. However, there are still many shortcomings and limitations. The status of injustice, wrongful trials in the first instance trial of the criminal case of the Court still takes place. Many first instance criminal court cases had been being returned to the Procuracy for additional investigation due to wrongful prosecution and crimes of persons. Some cases of judgments of the Court are differing from the contents of exercising the right to prosecution, or the Procuracy accused the defendant, but the court declares not guilty. This shows that the quality of exercising the right to prosecution of the prosecutors at some trials of first instance for criminal cases has not been not actually guaranteed. From the academic perspective, topic on the quality of the exercising the right to prosecution of the prosecutors at the first instance trial of criminal cases 3 is not entirely new research area. However, the basic theory on the quality of the exercising the right to prosecution of the prosecutors at the trial of the first instance are not fully acknowledged and thoroughly addressed; Therefore, the system of criteria for assessing the quality of exercising the right to prosecution at the first instance of criminal trial has not been clearly identified. Recent legislative activities show that some laws relating to the organization and operation of the courts, procuracies and investigating bodies have not properly reflected the spirit of the 2013 Constitution on the functions of the proceeding bodies. Similarly, the determination or the legalization of criteria for assessing the quality of exercising the right to prosecution of the prosecutors at the trial has not been taken into account. The process of judicial reform in Vietnam has raised new requirements. The exercising of the right to prosecution of People's Procuracies shall contribute to the protection of the law, human rights, citizen’s rights, the protection of the socialist regime, the interests of State, the legitimate rights and interests of organizations and individuals, contributing to ensure that the law is strictly and uniformly implemented. This context requires that the exercising of the right to prosecution of the prosecutors at the first instance trials of criminal cases need to constantly improve in quality to ensure the accuracy and lawfulness. Therefore, the study of the quality of exercising the right to prosecution practice at the first instance criminal court is significantly important in both in theory and practice. For the reasons mentioned above, the author selected the topic on "The quality of exercising the right to prosecution of prosecutors at the first instance criminal court hearings under the requirements of judicial reform in Vietnam" as a PhD thesis in law, specializing in Theory and History of State and Law. 2. Objective and tasks of the thesis 2.1. Objective of the thesis Based on the analyzing of theoretical and practical issues on the quality of exercising the right to prosecution of the prosecutors at the first instance 4 criminal trial under the requirement of judicial reform in Vietnam, the author proposes opinions and solutions to ensure the quality of exercising the right to prosecution of the prosecutors at the first instance criminal court hearings to meet the requirements of judicial reform. 2.2. Tasks of the thesis To achieve the above objective, the thesis has the following tasks: - To clarify the theoretical issues on quality of exercising the right to prosecution of the prosecutors at the first instance criminal court hearings under the requirements of judicial reform in Vietnam such as concepts, characteristics, roles, reviewing criteria, factors and requirements to ensure judicial reform. - To analyse the quality of exercising the right to prosecution of the prosecutors at the first instance criminal court hearings under the requirements of judicial reform in Vietnam - To assess the status of quality procurator and to identify advantages, disadvantages and challenges. - To analyze and propose views and solutions to ensure the quality of exercising the right to prosecution of procurators at the first instance criminal court hearings under the requirements of judicial reform. 3. Subjects and scope of the thesis 3.1. Research subjects From the perspective of theory and history of state and law, this thesis focuses on the theoretical and practical issues of quality of exercising the right to prosecution of procurators at the first instance criminal hearing under the requirements of judicial reform in Vietnam. 3.2. Research scope - Research objects: The thesis focuses on the theoretical and practical issues on quality of exercising the right to prosecution of procurators at the first instance criminal court hearings. It does not study the quality of the procurators at the appellate trial, cassation and retrial. The thesis also does not study the practical activities of the military procuracy. 5 - Research space: The thesis examines the theoretical and practical issues of exercising the right to prosecution of procurators at the first instance criminal court hearings nationwide. - Research duration: The author use data collected as a basis for assessing the status of exercising the right to prosecution of procurators at the first instance criminal court hearings since 2010 to date. 4. Research Rationale and methods 4.1. Research Rationale: The thesis is based on the theory of Marxism- Leninism and Ho Chi Minh's thought on state and law, the views of the Communist Party of Vietnam on the reform of the state apparatus in general and judicial reform in particular. 4.2. Research methodology: The thesis employs the research methods of Marxist-Leninist philosophy, which focus on the combining between theory and practice, as well as analysing, synthesis, inductive, interpreting and historical research method. The thesis also employs the research methods of other disciplines such as statistics, systematic comparative methods. Chapter 1 employs analytical and synthesis methods to analyze and evaluate relevant studies related to the topic. Chapter 2 employs analytical and synthetic methods to clarify the theoretical issues related to the topic. Chapter 3 employs statistics, comparative, analysis, synthesis methods, systematic theory, taking into account the Marxist-Leninist approach to assess the actual quality of exercising the right to prosecution of procurators at the first instance criminal court hearings Chapter 4 employs analytical, synthesis, comparative, inductive - interpreting methods to propose practical and feasible solutions and perspectives to improve the quality of exercising the right to prosecution of procurators at the first instance criminal court hearings 5. New contributions of the thesis The thesis is the first comprehensive and systematic study on theoretical and practical basis for the quality of practicing procurator's prosecution at the 6 first instance criminal court hearings under the requirements of judicial reform in Vietnam; Therefore, the thesis has some new contribution as follows: 1. The thesis has developed the concept, analyzed the characteristics and role of quality of exercising the right to prosecution of procurators at the first instance criminal court hearings. 2. The thesis has developed criteria for assessing the quality of exercising the right to prosecution of procurators at the first instance criminal court hearings under the requirements of judicial reform in Vietnam. 3. The thesis has analyzed and identified the outcomes, limitations and causes of the quality of exercising the right to prosecution of procurators at the first instance criminal court hearings under the requirements of judicial reform in Vietnam today. 4. The thesis has proposed viewpoints and solutions to ensure the quality of exercising the right to prosecution of procurators at the first instance criminal court hearings under the requirements of judicial reform in Vietnam today. 6. Theoretical and practical significance of the thesis - Theoretical significance: The findings of the thesis contribute to enrich the theories on quality of exercising the right to prosecution of procurators at the first instance criminal court hearings - Practice significant: The findings of this thesis will contribute to improve the quality of exercising the right to prosecution of procurators at the first instance criminal court hearings. At the same time, the thesis is a good reference for research and teaching at law training institutions. 7. Structure of the thesis In addition to the introduction, conclusion, list of references, the thesis consists of 4 chapters, 10 sections. 7 Chapter 1 LITERATURE REVIEW OF STUDIES RELATED TO THE THESIS The exercising the right to prosecution in general and the quality of exercising the right to prosecution of procurators at the first instance criminal court hearings in particular have been long time under studied by scholars in the field of law. When the Party and State advocate for judicial reform, this particular issue has been under increasingly concern. During this time, there have been many research work including monographs, PHD theses, master theses, seminars paper, scientific researches, journal articles in specialized journals related to exercising the right to prosecution and the quality of exercising the right to prosecution for procurators at the first instance criminal court hearings. The followings are some typical studies related to the thesis: 1.1. STUDIES RELATED TO JUDICIAL REFORM The studies show that judicial reform is a great strategy of the Party, with clear objectives, contents, directions and tasks. The contents, directions and tasks of judicial reform are set in the whole the judicial system. The judicial system as well as the judicial activities are closely linked and complementing each other in the development process. This is a very important methodological issue, which helps the thesis topic to be studied comprehensively, systematically and logically. 1.2. STUDIES RELATED TO THE QUALITY OF EXERCISING THE RIGHT TO PROSECUTION OF PROCURATORS AT THE FIRST INSTANCE CRIMINAL COURT HEARINGS Studies shows that, in general, published research works have made important contributions in certain aspects in addressing the theoretical and practical issues on the quality of exercising the right to prosecution of procurators at the first instance criminal court hearings which can be can be use as references and inherence for the thesis 8 1.3. OVERVIEW OF STUDIES RELATED TO THE THESE PROBLEMS AND ISSUES FOR FURTHER STUDY 1.3.1. Overview of the studies related to the thesis Based on the reviewing of relevant published studies in the past, the thesis identifies that at different levels, these works addressed a number of theoretical and practical issues on the quality of exercising the right to prosecution of procurators at the first instance criminal court hearings under the requirements of judicial reform. However, up to now, there has not been any comprehensive, systematic study on the quality of exercising the right to prosecution of procurators at the first instance criminal court hearings under the requirements of judicial reform. Specifically, theoretical issues such as the concept, characteristics, roles and criteria for assessing the quality of exercising the right to prosecution of procurators at the first instance criminal court hearings under the requirements of judicial reform have not been clearly defined. More particularly, there has not been any study has developed a set of criteria to assess the status of quality exercising the right to prosecution of procurators at the first instance criminal court hearings under the requirements of judicial reform Therefore, they were not able to identify problems, inadequacies of this activity. Accordingly, there has not comprehensive solutions that are appropriate and feasible to ensure the quality of excising the right to prosecution of procurators at the first instance criminal court hearing required by judicial reform. 1.3.2. Issues for further study - Theoretical issues that need further study include: analyzing to clarify the concepts, characteristics, roles, evaluation criteria and elements to ensure of quality exercising the right to prosecution of procurators at the first instance criminal court hearings under the requirements of judicial reform. The requirements of judicial reform to ensure the quality of exercising the right to prosecution of procurators at the first instance criminal court hearings 9 - Practical issues for further study include: comprehensive and systematic analysis and evaluation of procurators and the status of the quality of exercising the right to prosecution of procurators at the first instance criminal court hearings. Identification of the advantages, limitations and causes of such strengths and weaknesses. On the basis of a comprehensive analysis of theoretical and practical issues of the status of the quality of exercising the right to prosecution of procurators at the first instance criminal court hearings as required by judicial reform, the thesis propose comprehensive and feasible viewpoints and solutions to ensure the quality of exercising the right to prosecution of procurators at the first instance criminal court hearings as required by judicial reform Chapter 2 RATIONALE FOR THE QUALITY OF EXERCISING THE RIGHT TO PROSECUTION OF PROCURATORS AT THE FIRST INSTANCE CRIMINAL COURT HEARINGS UNDER THE REQUIREMENTS OF JUDICIAL REFORM 2.1. CONCEPTS, CHARACTERISTICS AND ROLE OF QUALITY OF EXERCISING THE RIGHT TO PROSECUTION OF PROCURATORS AT THE FIRST INSTANCE CRIMINAL COURT HEARINGS UNDER THE REQUIREMENTS OF JUDICIAL REFORM 2.1.1. The concept of quality of exercising the right to prosecution of procurators at the first instance criminal court hearings under the requirements of judicial reform By analyzing the notion of the right to prosecution and exercising the right to prosecution, the thesis defines the concept of quality of exercising the right to prosecution of procurators at the first instance criminal court hearings under the requirements of judicial reform: Exercising the right to prosecution of procurators at the first instance criminal court hearings under the requirements of judicial reform is an activity to bring the offender to the first instance court 10 and prosecuted at the court hearing of the People's Procuratorate in accordance with the provisions of law, demonstrating their proficiency in professional skills, minimizing the number of cases the court returned for additional invest