Legal issues on cassation protest and protest power of the High-
Legal issues on cassation protest
1.1.1 Definition and nature of cassation protest
Under Vietnamese criminal procedure law, there are three types of protests: appellate, cassation, and reopening protests To fully grasp the concept of a cassation protest, it is essential to first understand the definition of the cassation procedure.
According to Article 370 of the 2015 Criminal Procedure Code, cassation is
“the review of a court’s legally valid judgment or decision which is protested against because of serious law violations detected in the handling of the case”
Cassation in criminal proceedings is a process where competent courts examine final judgments and decisions Authorized individuals challenge these judgments due to significant legal violations in the management of criminal cases, ensuring the law is applied consistently and correctly.
The cassation procedure is defined in the 2003 and 2015 Criminal Procedure Codes, yet there is no official definition of "protest." Generally, protest is understood as expressing opposition to something, as noted in various dictionaries One definition describes protest as the act of opposing a decision made at a workshop However, these interpretations do not adequately capture the meaning of protest within the context of criminal proceedings In legal terminology, protest refers to the actions of a competent individual delivering a formal objection.
1 Nguyen Van Xo (2008), Vietnamese Dictionary, 5 th edition, Thanh Nien Publisher, p.345
The definitions of protest in legal contexts are often inadequate The first definition fails to address the cassation procedure, as a cassation protest does not suspend or terminate the judgment's effect The second definition, while focusing on the objects and competence, neglects the grounds for protest Therefore, a more accurate definition of protest is: "Protest is the legal procedure undertaken by authorized persons to oppose all or part of a court's judgment or decision, aimed at ensuring property rights, equality in trials, and correcting errors in those judgments or decisions."
The term "cassation protest" (Kháng nghị giám đốc thẩm) lacks a clear definition in legislation, leading to various interpretations Dinh Van Que describes it as a decision by authorized individuals to contest all or part of a court's effective judgments, allowing for a review in cassation procedures However, this definition does not emphasize the critical aspect of serious legal violations that warrant such protests Additionally, the similarity between cassation protests and reopening protests can lead to confusion, as both share similar forms and competencies Another perspective defines cassation protest as a procedural act by authorized persons expressing disagreement with a court's effective judgments, particularly when those judgments involve significant violations of criminal procedure law.
3 Ministry of justice, Institute of Legal science (2006), Legal Dictionary, Tu Dien Back Khoa publisher, p
4 Ha Noi University of Law (1999), Dictionary of Legal Explanation (Penal Code and Criminal Procedure
Code), Cong an nhan dan Publisher, p.183
5 Dinh Van Que (1997), Criminal Cassation and Reopening Procedures – Reasoning and Practical Issues,
Chinh tri quoc gia Publisher, p 8-9
In her 2012 Bachelor thesis at Ha Noi University, Lanh Thi Thanh argues that the definition of cassation protest in Vietnamese criminal procedure is improved by including additional grounds for lodging such protests However, the author limits this definition to violations of criminal procedure law, whereas grounds for cassation protests can also encompass violations of criminal law.
In conclusion, these definitions are based on objects, competences, grounds, or scope of protest under cassation procedure, so it closely expresses the term
Cassation protest refers to a legal procedure where authorized individuals petition a court with jurisdiction to review the effective judgments and decisions of a lower court, specifically when there are substantial grounds for serious violations of the law.
The 2015 Criminal Procedure Code does not explicitly outline the objects of cassation protest; however, they can be inferred from Articles 370, 371, and 373 These objects include judgments or portions of judgments from first-instance courts that have not been appealed or protested through appellate procedures, judgments from appellate courts, and cassation or reopening decisions made by the courts.
Article 272 of the 2003 Criminal Procedure Code defines cassation as the review of a legally valid judgment or decision that is contested due to significant legal violations identified during the case's handling Additionally, the 2015 Criminal Procedure Code explicitly outlines the procedures and implications related to cassation.
Court judgments are deemed effective, meaning that decisions from other agencies, like investigation bodies and the Procuracy, cannot be challenged through cassation However, if these agency decisions exhibit significant legal violations that the court fails to acknowledge, they can be annulled in cassation proceedings.
According to Clause 1, Article 2 of the 2010 Law on the Enforcement of Criminal Judgments, the bodies responsible for procedures have been legally established The objects of cassation protest are limited to the court's legally valid judgments and decisions This indicates that the court bears the responsibility of identifying legal breaches not only arising from its own actions but also from other agencies whose documents influence the court's judgments Furthermore, not all legally valid decisions made by the court are subject to cassation protest, particularly those made by the Judges Panel in the Supreme People’s Court, which are excluded from such protests.
In cases where judgments or decisions contain serious legal violations, the entire judgment or decision is subject to cassation protest Conversely, if only specific sections of a court's effective judgments or decisions exhibit serious breaches of law, only those particular parts will be the focus of the cassation protest, while the remaining sections that are free from violations will remain legally valid.
1.1.3.1 Legal meaning of cassation protest
Cassation protest serves as a vital mechanism for competent courts to address and rectify serious legal violations in effective judgments and decisions As society evolves and social relationships become increasingly complex, the law often struggles to keep pace, leading to potential errors in case resolutions To identify and correct significant legal breaches in valid judgments and decisions, and to uphold the legal integrity of court rulings, legislators have established a review mechanism for these judgments and decisions.
Cassation protest is an instruction of higher-level courts directed to lower-
In their 2010 article, Tran Van Do and Nguyen Mai Bo discuss the concepts of cassation and reopening within Vietnamese criminal procedures, emphasizing the role of the Supreme People's Court in ensuring uniform law application This method aims to guide lower courts in the correct interpretation of the law and prevent misconceptions Since June 1, 2016, Vietnam has implemented case law to address similar cases, with the first criminal case law being Decision on cassation No 04/2014/HS-GĐT, issued by the Judges Council of the Supreme People's Court on April 16, 2014 Through cassation protests, higher-level courts issue decisions that lower courts are expected to follow uniformly.
1.1.3.2 Meaning of cassation protest regarding human rights protection
Cassation protest plays a crucial role in safeguarding the rights and legal interests of individuals involved in criminal proceedings, as well as upholding the integrity of criminal justice Every person's human rights, grounded in their inherent dignity, are inviolable and must be respected without distinction A legally valid judgment from a competent court can have direct implications for individual rights The 2013 Constitution stipulates that human rights may only be restricted under essential circumstances related to national defense, security, social order, morality, and public health, emphasizing that these fundamental rights must be protected by the government However, an erroneous judgment can adversely impact these rights, making cassation protest an essential mechanism for the protection of fundamental human rights.
1.1.3.3 Political meaning of cassation protest
Power to lodge cassation protest of the High-level People’s Procuracy
1.2.1 History of the High-level People’s Procuracy in Ho Chi Minh City
Resolution No 49-NQ/TW states that "The People's Procuracy is organized in accordance with the organizational system of the Court." Therefore, before discussing the history of the High-level People's Procuracy, this thesis provides a summary of the establishment of the high-level people's court.
Article 102 of the 2013 Constitution establishes the People's Courts as the judicial bodies of the Socialist Republic of Vietnam, responsible for exercising adjudicative power The State has organized a hierarchy of courts, including the Supreme People's Court, local People's Courts at both provincial and district levels, as well as specialized People's Courts.
21 From practice of the High-level People‟s Procuracy in Ho Chi Minh City from 1/6/2015 to 31/5/2017
22 Database of the Office of the High-level People‟s Procuracy in Ho Chi Minh City
Resolution No 49-NQ/TW, issued by the Politburo on June 2, 2005, outlines judicial reform strategies aimed at 2020 Following the unanimous passage of the 2014 Law on the Organization of the People's Courts by the National Assembly, the court system was restructured into four levels: the Supreme People’s Court, High-level People’s Courts, provincial People’s Courts, and District People’s Courts This new arrangement replaced the previous three-level system, which included only the Supreme People’s Court, provincial People’s Courts, and District People’s Courts.
The judicial system of the People's Republic of China (PRC) is structured into four levels: the Supreme People’s Court, Intermediate People's Courts, Higher People's Courts, and primary People's Courts This system, as outlined in Article 2 of the 1983 Organic Law of the People’s Procuratorates, is designed to manage the vast territory and dense population of China While Vietnam's territory and population are smaller, it also adopts a four-level judicial system to limit the powers of provincial courts and alleviate the workload of the Supreme People’s Court Both countries share a close cultural and historical connection, influencing their legal frameworks.
24 The 1983 Organic Law of the People‟s Court of the People‟s Republic of China, Article 2
25 Quốc hội Trung Quốc,