Chứng minh trong tố tụng hình sự việt nam từ thực tiễn tỉnh đồng nai tt tiếng anh

Research purpose By examining and clarifying some theoretical issues and the provisions of the law related to the evidence in criminal procedure, as well as the reality of the evidence

VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES

L

NGUYEN TRUC THIEN

THE EVIDENCE IN VIETNAM’S CRIMINAL PROCEDURE - A CASE STUDY OF DONG NAI

The dissertation completed at Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences

Supervisor: Assoc Prof Dr HOANG THI MINH SON

Reviewer 1: Prof Dr Bui Minh Thanh

Reviewer 2: Prof Dr Ho Trong Ngu

Reviewer 3: Dr Quan Minh Cuong

The dissertation will be defended at Graduate Academy Level Council of dissertation assessment at Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences, 477 Nguyen Trai, Thanh Xuan, Hanoi

Time: ………… date ……… month …… …year 2019

The dissertation may be found at:

- Vietnam National Library;

- Graduate Academy of Social SciencesLibrary

INTRODUCTION

1 The necessity of the research topic

The evidence in criminal procedure is one of the important and fundamental theoretical issues of the criminal procedure The 2015 Criminal Procedure Code regulated evidence and proofs into a separate chapter, chapter VI of the Code In fact, however, the fighting against crimes, especially in the current period, the situation of crimes is very complicated, their modes and tricks are very sophisticated In the process of performing functions and duties, the competent procedural agencies and the competent procedural persons, have not yet thoroughly resolved the procedural issues, this leads to determine the objective truths of cases still have many mistakes, leading to the investigation, prosecution and trial of wrong people and crime, so there are still many cases of unfair trial of innocent people and leaving crimes

Continue to further study the evidence in criminal procedure as a very important and significant content both theoretically and practically, contributing to the protection of human rights and improving the efficiency of crime prevention in the current period Therefore, the author chose the research work titled “The evidence in Vietnam’s criminal procedure - A case study of Dong Nai province” as her doctoral dissertation in law

2 Research purpose and tasks

2.1 Research purpose

By examining and clarifying some theoretical issues and the provisions of the law related to the evidence in criminal procedure, as well as the reality of the evidence in criminal procedure in Dong Nai province, the dissertation offers solutions to improve the provisions of

the criminal procedure law as well as other solutions to ensure and further improve the quality of the evidence in criminal procedure

2.2 Research tasks

Reviewing literature at home and abroad, that related to the evidence

in criminal procedure, pointing out agreed and controversial points that have not bee thoroughly resolved, and the points need to be addressed

by the dissertation Studying and understanding the provisions of the criminal procedure law of a number of countries in the world on the evidence in criminal procedure and pointing out similarities and differences, as well as lessons for Vietnam Assessing the real situation

of the evidence in criminal procedure when solving criminal cases in Dong Nai province, pointing out the advantages, limitations and their causes in practice of proving the criminal cases

3 Research subject and scope

3.1 Research subject

Research subject of the dissertation is the theoretical issues on the evidence in criminal procedure, the provisions of Vietnam’s criminal procedure law on the evidence in criminal procedure, referring to foreign criminal procedure law and the implementation of the provisions of Vietnam’s criminal procedure law on the evidence in criminal procedure in Dong Nai province in practice

3.2 Research scope

The dissertation examines the evidence in criminal procedure under the Vietnamese law and referring criminal procedure law of some countries around the world

Regarding time and spatially, the dissertation examines the practice

of evidence in the proceeding stages conducted by investigating bodies,

procuracy and courts in Dong Nai province between 2008 and June

4.2 Research methods

The study uses methods of overview, synthesis, analysis; historical method, comparison and statistics However, depending on the research content, the dissertation will use appropriate methods for each chapter and section

5 New contributions of the dissertation

- Regarding the approach: by using the multi-disciplinary and interdisciplinary research method, especially the methods of legal philosophy, dialectical materialist method, the dissertation analyzes clearly the concept of evidence, responsibility of subject and objects of the evidence in Vietnam’s criminal procedure in Dong Nai form 2008 to June 2019, thenceforth, serving as a basis for making recommendations and solutions to improve the efficiency of evidence in Vietnam’s criminal procedure in general, and in Dong Nai province in particular

- Regarding to approaching perspective: with a comprehensive and multidimensional approach to the evidence in criminal procedure between the provisions of the existing law and practice of evidence in

criminal procedure in Dong Nai so as to examine responsibility to prove and relationship among the procedural authorities in proving crime The dissertation clarifies regulations on the evidence as well as the subject

of proving and obligation of proving in criminal procedure to ensure further human rights, citizen rights and not to be unjustly punished

- Regarding the generalization of the dissertation: This is an intensive research work on the evidence in Vietnam’s criminal procedure On the basis of research methods and approaches, especially

on the basis of provisions of criminal procedure law and in practice in order to clarify further, deeper and more complete the evidence in criminal procedure, thereby discovering causes of limitations and inadequacies in practice This has a great significance in the construction and completion of reasoning, specifically reasoning on evidence in criminal procedure

6 Theoretical and practical significance of the dissertation

6.1 Theoretically

The research results of the dissertation contribute to further building and developing the reasoning on evidence in criminal procedure in our country

6.2 Practically

The dissertation can be seen as reference for educational institutions

in law, agencies of law protection, and it has theoretical and practical significance for procedural bodies, and as reference in the process of building and amending the Criminal Code, the Criminal Procedure Code and its subordinate documents, contributing to enriching and perfecting the reasoning on evidence in Vietnam’s criminal procedure

7 Structure of the dissertation

Besides the introduction and conclusion and references, the dissertation includes 4 chapters

Chapter 1: Literature review

Chapter 2: The theoretical issues on the evidence in criminal procedure

Chapter 3: The provisions of the law on the evidence in criminal procedure and practice of implementing in Dong Nai province

Chapter 4: Requirements and solutions to improve the quality of the evidence in criminal procedure in Dong Nai

Chapter 1 LITERATURE REVIEW 1.1 Research situation in abroad

Criminal procedure science of international criminal law and foreign criminal procedure law always ensure that the procedural bodies and the procedural subjects might handle properly cases, not missing crimes and avoiding wrongfully It may be mentioned some following research works: A.la vu-sin-xky (1950), Teopия судебныx доказательств b советском праве Reasoning on judicial evidence in Soviet law, Moscow Publisher, (translated by the Propaganda Department of the Supreme People's Court (1967); “Criminal procedure-law and practice”

by Ronaldo V.del Carmen, Sam Houston State University, the United states of American This book includes 15 chapters which mainly cover the rights of the accused, the basic principles under the US criminal procedure law, an overview of the criminal justice process, and the provisions on basic rights of the accused The law on criminal evidence

1989 of the United Kingdom; research documents on the US criminal

procedure model by Richard S Shine and Miranda warning procedure

in the US; Examining Japan’s criminal procedure model by Professor Byung-Sun Cho; Research report on Italia’s criminal procedure model

by Marco Fabria dated 10 August 2011, this report mentioned the legal status of suspects, defendants and defense counsels in criminal procedure

1.2 Domestic research situation

1.2.1 Research works related to the reasoning on evidence in Vietnam’s criminal procedure

1.2.2 Research works related to the reality of evidence in Vietnam’s criminal procedure

1.2.3 Research works related to solutions to improve the quality of evidence in criminal procedure

1.2.4 The other relevant research works

1.3 General assessment of research situation related to the dissertation

1.3.1 The issues that the dissertation will inherit and develop further

Foreign research works give the author with an awareness and overview of proving crimes in some countries around the world and solutions that these countries have applied when proving crimes

Domestic research works have very important significance for the dissertation, they have synthesized and analyzed comprehensively the reality of proving crime in Vietnam’s criminal procedure The process

of building and perfecting the law on the evidence of crimes Previous research works help the author to have full and deepen awareness on the evidence in criminal procedure so that the author might discover

limitations and shortcomings of building procedural law in different historical stages and inherit solutions of these works

1.3.2 The controversial issues

In the stage of instituting criminal cases, whether or not to carry out proving activities This issue has not been clearly shown in the works mentioned above Whether all the competent procedural subjects are proving subjects or several certain subject only; participants in procedural process are subjects proving criminal cases or not The evidence in criminal procedure just covers activities of gathering, inspecting and evaluating evidences or even activities of using evidences Subjects are proven in different stages of criminal procedure

to be the same or different

1.3.3 The issues need to be further examined by the dissertation

First, presenting theoretical issues on the evidence in criminal

procedure such as concept, characteristics of proving in different stages

of criminal procedure and the correlation among stages; contents of proving in criminal procedure

Second, on the basis of studying the provisions of Vietnam’s

criminal procedure law in different historical periods, the author evaluates and points out the overall picture in the provisions of the law

on the evidence in criminal procedure and clarify inheritance values of this institution in legislative history of our country

Third, clarifying the reality of the evidence and pointing out the

achieved results, the limitation and its causes

Fourth, proposing a number of solutions to ensure better

implementation of activities of proving in criminal procedure These solutions include: to further complete the provisions o the criminal procedure law on the evidence; solutions for those who are responsible

for proving; solutions for those who participate in prove and some other solutions

Sub-conclusion of chapter 1

Chapter 2 THE THEORETICAL ISSUES ON THE EVIDENCE IN

CRIMINAL PROCEDURE 2.1 Methodological basis of the evidence in criminal procedure 2.2 Concepts, characteristics, purposes and meanings of the evidence in criminal procedure

2.2.1 Concept of the evidence in criminal procedure

According to the dialectical materialism, every crime that happens in reality, humans can detect and prove Everything has its own reflection,

so human activities including their offence leave traces in the objective world If the human collect fully, systematically, technically and scientifically these traces, they can be aware of the evolution of the crime that has occurred

The evidence in criminal procedure is a logic thinking activity and practice of competent subjects as prescribed by law, to be conducted by collecting, examining and evaluating evidence, and clarifying issues belonging to the proved objects to properly solve criminal cases based

on determining the objective truths of the cases

2.2.2 Characteristics of the evidence in criminal proceedings

First, the evidence in criminal procedure is a logic thinking activity

The competent procedural bodies are responsible for proving crimes The accused has rights but not force to prove his/her innocence

Second, the content of the process of proving in criminal procedure

is the collection, examination and evaluation of information, documents and relevant and meaningful objects to resolve criminal cases

Third, compared to non-criminal procedure, the evidence in criminal

procedure is the responsibility of competent agencies and persons to conduct legal proceedings The accused has the rights to prove but is not required to prove his/her innocence

Fourth, the evidence in criminal procedure is conducted during the

process of resolving the case from the settlement of denunciations, information on crimes and petitions to prosecute until the judgments and decisions of the Court take effect However, the purpose and the way of proving in each stage are different

Fifth, the nature of the evidence in criminal procedure is the use of

evidences to clarify matters of the proved subjects under the law, that is,

to clarify the objective truths of the cases

In addition to the competent procedural persons, the defense counsels are also the subjects proving to protect their clients

2.2.3 The purpose and meaning of the evidence criminal procedure

- The purpose of proving in criminal procedure is to clarify the objective truth

- The meaning of proving in criminal procedure is to achieve the

purpose of proving, clarifying the objective truth; ensuring the principles of socialist legal regulations, human rights, basic rights and obligations of citizens; ensuring the principle of equality

2.3 Objects to prove and the evidence limit in criminal procedure

2.3.1 Objects to prove in criminal cases include different events

and circumstances, in which each event and circumstance in particular

as well as the whole case must be studied and clarified objectively, comprehensively and accurately

2.3.2 The evidence limit is a synthesis of necessary and sufficient

evidences to properly resolve criminal cases If the proven subject can show the purpose and requirements of proving, the evidence limit will show clearly methods that available to achieve such purpose

2.4 Process of proving in criminal procedure includes gathering,

examining and accessing evidences

2.5 The evidence in procedural models of some countries around the world

The study examines the evidence in procedural models and the provisions of the law of some countries around the world such as provisions on the evidence in the US criminal procedure; Provisions on the evidence in criminal procedure law of the People’s Republic of China; Provisions on the evidence in criminal procedure law of the Criminal Procedure Code of the Russian Federation; of the Criminal Procedure Code of the Republic of France

Sub-conclusion of chapter 2

Chapter 3 THE PROVISIONS OF THE LAW ON THE EVIDENCE IN CRIMINAL PROCEDURE AND PRACTICE OF

IMPLEMENTING IN DONG NAI PROVINCE

3.1 The provisions of the law on the evidence in criminal procedure

3.1.1 The provisions of Vietnamese law on the evidence in criminal procedure

3.1.1.1 Overview of the provisions of Vietnam's criminal procedure law on the evidence in criminal procedure

The provisions of Vietnamese law on the evidence in criminal procedure before the promulgation of the 1988 Criminal Procedure Code; The provisions of the 1988 Criminal Procedure Code on the evidence in criminal procedure; The provisions of the 2003 Criminal Procedure Code on the evidence in criminal procedure

3.1.1.2 The 2015 Criminal Procedure Code on the evidence in criminal procedure

3.1.1.3 Evaluating the provisions of Vietnam’s criminal procedure law on the evidence in criminal procedure

3.2 Practice of the evidence in criminal procedure in Dong Nai province

3.2.1 Overview of the situation of proving in the criminal procedure in Dong Nai province

Proving crimes in the stage of introduction of instance and investigation; prosecution; the stage of trial; violations committed by first-instance procedural authorities

3.2.2 Evaluating the practice of the evidence in criminal procedure in Dong Nai province