Pháp luật về hợp tác quốc tế trong lĩnh vực tố tụng hình sự ở việt nam hiện nay tt tiếng anh

Research objectives The objectives of this thesis are to research theoretical and practical issues in law on international cooperation in criminal procedural matters in Viet Nam; based

VIETNAM ACADEMY OF SOCIAL SCIENCES

GRADUATE ACADEMY OF SOCIAL SCIENECES

PHAM VAN CONG

THE PRESENT LAW ON INTERNATIONAL COOPERATION IN CRIMINAL PROCEDURAL

MATTERS IN VIET NAM

Major: Criminal and Criminal Procedure Law Code: 9 38 01 04

SUMMARY OF DOCTORAL THESIS IN LAW

HANOI - 2019

Done at:

GRADUATE ACADEMY OF SOCIAL SCIENECES

Supervisor: Prof., PhD Nguyen Ngoc Anh

Reviewer No 1:

Reviewer No 2:

Reviewer No 3:

The dissertation will be defended before the Ph.D thesis review Council of the Graduate Academy of Social Sciences, held at::

on:…… hour……minute, day……month… year ……

The thesis can be found at:

- National Library of Viet Nam

- Library of Graduate Academy of Social Sciences

LIST OF THE AUTHOR’S PUBLISHED SCIENTIFIC WORKS

RELATED TO THE THESIS

mechanism on the implementation of the universal

international treaties today”, The People’s Public Security

Journal, volume 1, issue 3, pp 88-91

2 Pham Van Cong 2017 “Conclusion bilateral treaty on transfer of the sentenced person between Viet Nam and Cambodia - Enhancing international cooperation in criminal

procedural matters between the two countries”, The People’s

Police Force, issue 4(131/2017), pp 81-84

cooperation in criminal matters in the European Union and

lessons learnt”, The People’s Police Force, issue 5 (29/2019),

pp 45-47

INTRODUCTION

1 The necessity of the research

In recent years, international and regional situations have changed rapidly, complexity, and unpredictably Non-traditional security factors become bigger challenges for security situation in national and international level, in which, transnational issues became global concerns of the international community due to whichever nation could not solve these problems alone Globalisation has promoted the interdependence of nations, thus impacts to the state of stability and development of each country and regions as well Transnational crimes, organized crimes, such as transnational human smugglings, human trafficking, drugs, money laundering, international terrorism, high tech utilised crimes, frauds, etc., expose complexity trends, produce tragically consequences, wide spreading

impacts which are perpetrated by many sophisticated modus

operandi These issues require nations to cooperate and coordinate

with others nations to detect, investigate, prosecute, adjudicate and execution of criminal judgement on cases, individuals, organisations that have committed transnational crimes Those measures including international cooperation in criminal procedural matters through several formalities, contents prescribed in international instruments

To promote legitimate national interests and implement the

international principle of pacta sunt servanda, nations engage to

build domestic legal systems, arrange resources affectedly to organising the implementation of international conventions to which

nation has been concluded in order to prevent and combat crimes

In Viet Nam, situation of crimes relating foreign factors has been the same trend with the situation crimes in the world, with more

developed sophisticatedly modus operandi creating many high

dangerous consequences There also are numbers of criminals who have fled abroad after perpetrating crimes in Viet Nam or have

entranced Viet Nam in order to avoid justice and/or continuing commit crime The above mentioned circumstances require multi-aspect measures to prevent and combat crimes, includes to conclude international treaties, improve the domestic law, implement diversity

of forms of international cooperation in the sphere of criminal procedures which are prescribed in the Code of Criminal Procedures adopted in 2003 as amended in 2015, the Law on Mutual Legal Assistance adopted in 2007, as well as related laws and regulations;

as well as implement international treaties that the Socialist Republic

of Viet Nam is a member party Therefore, the process of law drafting to make legal system perfect and applying law on international cooperation in criminal procedural matters in Viet Nam has reached achievements Provisions on international cooperation in criminal procedural matters have an significant roles in terms of politic, society and diplomatic These provisions also create legal bases for Vietnamese authorities to cooperate with foreign counterparts in implementing the international cooperation in criminal procedures, contributing to the enhancement of the crime prevention and combating, serving national strategy on deeply and widely international integration on every aspects which has initiated and directed by our Party and State However, the reality of applying provisions on international cooperation in criminal procedural matters in Viet Nam shows that, due to lacking of experience so it reveals obstacles, difficulties led to reducing the effectiveness of this work Beside that, they are complexity and multi-facets issues thus there have not been well-documented and researched, especially studies with multidisciplinary, interdisciplinary and transdisciplinary methods to recommend the making legal framework perfect and to enhance the effectiveness of international cooperation in criminal procedural matters

Albert there has been some researches in theoretical perspective

on international cooperation in specific activities of criminal

procedures as extradition, mutual legal assistance, transfer of the sentenced persons, international cooperation in counter crimes, however, due to the difference of research objectives, methodologies

and approaches so the Ph.D thesis titled as: “The present law on international cooperation in criminal procedural matters in Viet Nam” is a necessary, up-to-date study in the major of Criminal and

Criminal Procedures Laws

2 Research objectives and mandates

2.1 Research objectives

The objectives of this thesis are to research theoretical and practical issues in law on international cooperation in criminal procedural matters in Viet Nam; based on the findings, the thesis makes recommendations on making perfect laws on criminal procedures as well as enhancing effectiveness of these laws’ implementation

- To research related theories to clarify the concept, characteristics of law on international cooperation in criminal procedural matters in Viet Nam;

- To overview historical development process of law on international cooperation in criminal procedural matters in Viet Nam;

to analysis, evaluate recent provisions of law on international cooperation in criminal procedural matters; to make a comparison among domestic and international conventions to that Viet Nam is a party member, as well as comparison with foreign laws on international cooperation in criminal procedural matters; to make a summary the facts of applying provisions on law on international

cooperation in criminal procedural matters in Viet Nam; to identify obstacles, insufficiency of those provision of laws as well as find out causes of those obstacles and impediments;

- Based on synthesis the results of research and forecast the circumstances as well as factors that impact international cooperation

in criminal procedural matters, the thesis recommends to continue improving laws on criminal procedures as well as enhancing effectiveness of laws’ application in order to combat and prevent crimes effectively

3 The scope and subjects of the research

3.1 The subjects of the research

The thesis studies provisions of law on international cooperation

in criminal procedural matters: regarding theoretical aspect, that is

the theoretical basis of the law on international cooperation in

criminal procedural matters; regarding the practical aspect, it is on

provisions of laws of Viet Nam and six other representatives of foreign countries on international cooperation in criminal procedural matters; regarding laws implementation, it studies the implementation of the law on international cooperation in criminal procedural matters in Viet Nam practically

3.2 The scope of the research

- Regarding space of research, this thesis studies law of Viet Nam, international law on international cooperation in criminal procedural matters; practical implementation of law on international cooperation in criminal procedural matters in Viet Nam, focusing on the implementation of competent agencies, for example, investigation agencies, authorities under Ministry of Public Security, the People’s Supreme Procuracy, the People’s Supreme Court, Ministry of Foreign Affairs in the Vietnamese territories

- Regarding time of research, this study involves statistics, facts

on application of law on international cooperation in criminal procedural matters in the period from 2008 (when the Code of

Criminal Procedures adopted in 2003 went into force) to the August, 2019; except the historical overviewing on provisions of law on international cooperation in criminal procedural matters in Viet Nam

is taken from 1945 to present

4 Methodology

The thesis is based on the Marxist - Leninist theory, Ho Chi Minh’s thought, the viewpoints, policies of the [Vietnam Communist] Party, laws of the State on international relations and cooperation; making and improving legal system; combating and preventing crimes In coordinating multidisciplinary, interdisciplinary and transdisciplinary principles including international relations, international laws, politics sciences to supplement, comprehensively analysis the concepts, characteristics and relationships among nations, international treaties and laws on the raised issues in the globalisation, extra-territorial issues, combining with analytical, synthesis, interpreting and inductive methods, legal norms comparative analysis, case study, expert advocacy

5 New academic contributions of the thesis

First, studying theoretical aspect within the major of criminal law and criminal procedure law, combining with multidisciplinary, interdisciplinary and transdisciplinary research, the thesis presents and identifies concept, characteristics, the role of the law on international cooperation in criminal procedural matters; making comparison with provisions of international treaties on counter crimes to which Viet Nam is a party member; studying legal experience of some foreign states on international cooperation in criminal procedure matters

Second, the thesis overviews generally historic periods of the law

on international cooperation in criminal procedural matters in Viet Nam; analyses comprehensively provisions of law on this sphere in Viet Nam today; beside that, reviewing the facts of implementation

the law on international cooperation in criminal procedural matters in Viet Nam in the past years; identifying obstacles on provisions and applying these legal provisions, as well as causes of those obstacles Third, based on synthesising results of the research on theoretical and practical issues in this field, forecasting and evaluating related factors, identifying the trend, the need for making legal provisions perfect and enhancing the effectiveness of the application of the law

on international cooperation in criminal procedural matters; recommends to enhance improvement of legal provisions and the sufficiency of the application of those laws in order to counter crimes

in new context

6 Theoretical and practical significances of the thesis

- Regarding theoretical perspective: the thesis contributes to the progress of building a theory on the law on international cooperation

in criminal procedural matters in Viet Nam generally, international cooperation in this field in Viet Nam particularly; applying interdisciplinary and transdisciplinary principles to determining the position, the role, characteristics, principles of the laws and the practice of international cooperation in criminal procedural matters to counter transnational crimes related to Viet Nam

- In practical aspect: the results of this study could be utilised as a reference document in studying basically with statistics, documents collected from law enforcement agencies, reflecting the facts of application of the law on international cooperation in criminal procedural matters in Viet Nam, including: the process of negotiating, advocating and applying international treaties, applying domestic laws on mutual legal assistance, extradition, transfer of the sentenced persons and other activities on international cooperation, as well as recommending drafts of related legal documents on this field

of study

With those above contents, the thesis could be referred as research document for lecturing, studying, and researching in the

field of research at institutions on legal, criminal and criminal procedure laws in Viet Nam

7 Structure of the thesis

In addition to the Introduction, Conclusion, List of references, the thesis content is structured into four chapters:

Chapter 1 Literature review;

Chapter 2 Theoretical issues on law on international cooperation in criminal procedural matters in Viet Nam and some foreign countries; Chapter 3 Legal provisions on law on international cooperation

in criminal procedural matters in Viet Nam and the actual implementation;

Chapter 4 Improving law and enhancing the effectiveness of the implementation on international cooperation in criminal procedural matters in Viet Nam

Chapter 1 LITERATURE REVIEW

(from page 10 to page 24 of the thesis)

1.1 Overview of the researches published abroad that were related to the thesis

For studying the theme of this thesis, the author has collect 11 books, journal articles and academic reports which were published in foreign countries have been reviewed because of their direct relationship to this thesis

1.2 Overview of the researches published in Viet Nam

In our country, there have been published and studies on mutual legal assistance, extradition, international cooperation in transfer of the sentenced persons or counter crimes The author of the thesis has studied 36 monographs, books, reports, journal articles containing related issues to the international cooperation in criminal procedures

in those specified areas

1.3 Summary of evaluation on related researches

1.3.1 Overview of the achievements of previous works

Those published works, due to variety of bases of approaches and methods on international law, criminal law, criminology have analysed several aspects of the issues on the theories and practices implementation of criminal law in Viet Nam as well as certain activities of international cooperation However, there is till a need for deeply studies on the below issues which have not been thoroughly covered by previous studies

1.3.2 Issues raised that need further research

The thesis determines the issues that need further research, details as: (1) to further study, analysis the theoretical issues on the law on international cooperation in criminal procedural matters in Viet Nam today, especial applying interdisciplinary and transdisciplinary principles of research; (2) to analysis, compare and contrast recent legal provisions, regulations of Viet Nam, international laws, and laws in some foreign states on international cooperation in criminal procedural matters, focusing on provisions specified in the Criminal Code, the Code of Criminal Procedure, Law on Mutual Legal Assistance; (3) to overview, evaluate practical application of provisions on international cooperation in criminal procedural matters, focusing on Code of Criminal Procedure adopted in 2003, and 2015 latterly, Law on Mutual Legal Assistance adopted in 2007; (4) to make recommendations on views and propose solutions to improve the criminal procedure laws on international cooperation, judicial reforms and enhancing international integration in Viet Nam

in a new conditions

Summary of Chapter 1

Law on international cooperation in criminal procedural matters plays an important role, creating a legal basis for realisation of the mutual assistance and support between authorities in implementation

of the criminal procedure in the related nations and international organisations Thus, this issue has been highly concerned for

researching, evaluating facts on several aspects as well as research approaches Based on literature review on related studies in Viet Nam and abroad, Chapter 1 of the thesis synthesises and analyses the related published including books, journal articles, monographs, reports, doctorate and master theses, study reports on related issues This Chapter also determines whether those studies could be inherited, and particular issues should be further studied This is to confirm that, study on law on international cooperation in criminal procedural matters in Viet Nam is a new emergent issue, and there is many aspects needed to be researched further, especially on the whole scope of the criminal proceedings in Viet Nam This study shall be significant contributions to the process of Viet Nam integrating into the world today, as well as the pro-activeness in implementation of the international relations policy that Viet Nam is

a sincere friend, truthful partner and a responsible member party of the international community

Chapter 2 THEORETICAL ISSUES ON LAW ON INTERNATIONAL COOPERATION IN CRIMINAL PROCEDURAL MATTERS

IN VIET NAM AND SOME FOREIGN COUNTRIES

(from page 25 to page 70 of the thesis)

2.1 Theoretical issues on law on international cooperation in criminal procedural matters in Viet Nam

2.1.1 Concept, characteristics of law on international cooperation in criminal procedural matters in Viet Nam

- The thesis analyses several concepts which are related to the issues in order to construct a concept of law on international cooperation in criminal procedural matters in Viet Nam, details as following:

Law on international cooperation in criminal procedure matters

in Viet Nam is a comprehensive system of legal norms which are promulgated or recognised for enforcing by the State of Socialist Republic of Viet Nam, governing the relationships among authorities

of Viet Nam and foreign partners in mutual assistance, support to investigate, prosecute, adjudicate transnational crimes, cooperate in managing orders and/or decisions declared by a competent criminal courts applied to criminal individuals or organisations

- Characteristics of law on international cooperation in criminal procedural matters in Viet Nam include:

+ First, the unique within the system of legal norms governing legal relationships

+ Second, the legal normative characters

+ Third, the empowerment that is the law on international cooperation in criminal procedural matters is adopted by and/or official recognised by the State

+ Fourth, the enforcement in implementation

+ Fifth, the guaranty of application

2.1.2 Subjects of application, methods of application of law on international cooperation in criminal procedural matters in Viet Nam

- Subjects of application: based on overviewing theoretical and practical issues of international cooperation in criminal procedural matters has shown that, law on this subjects governs groups of areas, firstly, cooperation in determining, identifying national legal jurisdiction and obligations on cooperation between states (including defining objectives, authorities, responsibilities, and particular activities of cooperation) taken through process of negotiation, drafting, concluding bilateral, multilateral international instruments

to recognise international engagements with faithfully and fully implementing common concerning activities and measures in criminal proceedings Secondly, international cooperation in carrying