Chức năng bào chữa trong tố tụng hình sự việt nam tt tiếng anh

That is the contents related to the right to defense, the assurance of the exercise of the right to defense, defense counsels, the role of defense counsels, the function of the criminal

Vietnam Academy of Social Sciences GRADUATE ACADEMY OF SOCIAL SCIENCESI

O THỊ NGỌC CAO THI NGOC HA

DEFENSE FUNCTION IN VIETNAM ‘S

The thesis was completed in GRADUATE ACADEMY OF SOCIAL SCIENCES

Người hướng dẫn khoa học: PGS.TS Hoàng Thị Minh Sơn

Reviewer 1: GS.TS Bùi Minh Thanh

Reviewer 2: TS Trần Công Phàn

Reviewer 3: TS Phạm Mạnh Hùng

The thesis will be defended in front of the Academy's Thesis

Evaluation Commitee Place: Doctoral thesis defense room - Meeting room House ,

Graduate Academy of Social Sciences

Time: at ……… time, date …… month …… year ……… …

The thesis can be found at:

- National Library

- Library of Graduate Academy of Social Sciences

OPENING

1 The urgency of the thesis

From the perspective of legal provisions, the study of the function

of defense in criminal proceedings becomes urgent in the context that the Criminal Procedure Code2015 is born and is about to take effect in reality From a practical perspective, the implementation of the defense functions, the function of accusation and the function of trial has not been clearly differentiated, there is still overlap, the entities performing the above functions has not done all its functions Besides, although the professional qualifications of defense counsels are increasingly enhanced, the participation of defense counsels is increasing, but the quality of case resolution has not met the requirements which were set out Causes of this situation include both subjective reasons from defense counsels, and objective causes from legal proceeding agencies and legal provisions In some cases, defense counsels have not been properly facilitated by the agencies conducting legal proceedings to fulfill their functions and tasks Moreover, the perception of legal defense agencies about the role of defense counsels is not really right The position of defense counsels must

be considered a party to the proceedings, equal with the Procuracy Together with the procedure-conducting agencies, the defense counsels' activities contribute to finding the objective truths of the cases This awareness must be thoroughly understood in the judiciary cadres, especially the persons competent to conduct legal proceedings and all citizens

The content of defense has been interested by many authors in different aspects, expressed through theses, master theses, articles in specialized journals, topical articles in scientific research topics That is the contents related to the right to defense, the assurance of the exercise of the right to defense, defense counsels, the role of defense counsels, the function

of the criminal procedure, the judicial function of the criminal procedure, the accusition function of criminal proceedings However, at the doctoral level, there has not been any research on an extensive, comprehensive function of defense Therefore, the study of the topic «Defense function in Vietnam criminal procedure» is urgent and the author has chosen this topic

to study in the perspective of a doctoral thesis in law

2 Research purposes and missions

Based on the research of theoretical issues, the current status of the law and the practice of defense function in the Criminal Procedure, the dissertation makes recommendations to improve the law and solutions to

ensure the function of defense in criminal proceedings

3 Research subject and scope

3.1 Research subjects

The research subjects of the thesis are theoretical issues such as concepts, characteristics, meaningful purposes, contents, and bases of defense function in criminal proceedings ; legal provisions directly related to defense function in Vietnam's criminal procedure In addition, the object of the topic is the practice of performing the defense function in Vietnam's criminal procedure, practical evaluation to analyze and clarify problems and shortcomings of the current law through the data, typical examples in judicial practice to provide some solutions to perfect the provisions of the law and organize the implementation of defense functions

in Vietnam's criminal procedure

3.2 Research scope

In term of the content : The thesis focuses on studying the theoretical issues and provisions of Vietnam's criminal procedure law on the function of defense in the field of criminal procedure, the reality and the solutions to ensure the effective implementation of defense function

in the Criminal Procedure of Vietnam

In term of time : The regulation of the law on defense function are studied in each specific historical period such as the period before the Criminal Procedure (CrP) 1988 was born ; the period of the CrPC

1988, the CrP 2005 and the CrP 2015 take effect

In terms of space : The thesis studies practical issues through researching, summarizing defense counsels’ involvement cases nationwide and analyzing practical implementation of defense functions in the Criminal Procedure which are based on reports by department of Vietnam Law Association, Supreme People's Procuracy, Supreme People's Court,

questionnaire survey of some lawyers in Hanoi and local

4 Methodology and research methods

4.1 Methodology and approach

The thesis is studied based on the methodology of

Marxism-Leninism and Ho Chi Minh's thought on the State and the law In addition, the thesis is studied based on the methodology of the Criminal Procedure Law combining multi-disciplinary and interdisciplinary approach

Approach : The thesis uses the approach of the major Criminal Procedure Law, Criminal Law, General Theory of State and Law, Criminal Investigation Science, Criminology and Approach history, interdisciplinary and interdisciplinary approach ; approach in terms of comparative law

4.2 Research Methods

The thesis uses general research methods of social sciences and specific research methods of law to study the subject On the basis of dialectical materialism and historical materialism of Marxism- Lenin, Ho Chi Minh thought, the views of our Party and State on the struggle to prevent, fight against criminals and other law violations, the thesis uses a combination of research methods, namely : systematic methods, statistical methods, analysis methods, sociological investigation methods, historical, comparative, logical, synthetic methods

5 New contributions of science of the thesis

The thesis is a comprehensive research from the perspective of theory and practice of defense function in criminal procedure The results of the thesis have made new scientific contributions as follows :

- Firstly : The thesis clarifies and supplements a number of important theoretical issues of the function of defense in the administrative procedure and at the same time, analyzes to explain more deeply the provisions expressing the defense function in the administrative procedure through each specific historical period to see the legislative history of the function of defense in the Vietnam CrPC

- Second : The thesis researches the practical implementation of defense functions in the Vietnam CrPC for the past 10 years, based on a combination of qualitative and quantitative research to create reliability for conclusions

- Third : The thesis has proposed feasible solutions to ensure effective implementation of defense functions in practice

6 Scientific and practical significance of the thesis

The research results of the thesis supplement and clarify the theoretical issues on the function of defense in criminal procedure The thesis has great practical significance and is a meaningful source for individuals, agencies and organizations to refer to and research in the process of commenting and finalizing the provisions of law

7 The structure of the thesis

In addition to the introduction, conclusion and list of references, the thesis is divided into four chapters :

Chapter 1 : Overview of research situation

Chapter 2 : Theoretical issues on defense function in Vietnam criminal procedure

Chapter 3 : The law shows the function of defense in Vietnam's criminal procedure and its practical implementation

Chapter 4 : Viewpoints and solutions to ensure the performance of defense functions in Vietnam's criminal procedure

Chapter 1 OVERVIEW OF THE RESEARCH SITUATION

1.1 Abroad research situation

In many countries around the world, defense issues are studied from many aspects, such as the right to defense, defense counsels, the participation of defense counsels That is the scientific foundation for the formulation and implementation of legal provisions on defense functions Studying the basic theoretical issues of the criminal procedure model is very necessary for graduate students, because the criminal procedure model

is the way to perform the functions of criminal procedure These include:

"Major legal systems in world today" by Rene David, John E C Breierly, The Free Press in 1978; The book "Criminal Procedure Models in the World" by Jean-Phillipe Rivaud in 2000 The book "Comparative Criminal Justice" by Phillip.L.Reichel (Vietnamese translation of the Institute legal science research in 1999; article "Rethinking the functions of criminal Proceduce" (roughly translated: discussing the functions of

criminal proceedings) in 2010 by Peter A Renella

The article about defense function can be mentioned as: article "Defense function" (roughly translated: function of defense) of the American Law

Association who outlined the common standards of the defense and the

functions of defense lawyers Article "Functions of the police, prosecutor, court workers, defense counsel, Judge in aiding Juvenile Justice" (roughly

translated: Functions of police, prosecutors, civil servants of courts, defense lawyers, judges) in 2009, author Donald J Newman, Ph.D (Lecturer in law University Wiseunsin, Modison) affirmed: The defense functions are twice

as important in the investigation stage of the criminal prodecure process compared to other proceedings because the defense function during the investigation phase with the aim to assist the suspect in gathering evidence and to protect him from the violation of his rights in the hands of the legal defenders (people conducting legal proceedings)

Some studies have mentioned the contents of human rights in general

and the right to defense in particular such as: The article " the guarantees for accused peorsons under Article 6 of the European convention on Human Righs "( roughly translated: ensuring the rights of the accused under

Article 6 of the European Convention on Human Rights) by Stephanos stavros (Sweet and maxwell, UK, 1993), which focuses on analyzing the right to self-defense and the accused's right to ask others to defend him The

book "Criminal process and human rights" by the authors is the professors

and associate professors of the Law University in Melbourne, Australia,

2001 about human rights in general and the defense rights of accused persons in particular, emphasizing the right to access defense counsels, the right to contact defense counsels, and the right to free defenders for the group of vulnerable people such as minors or people with disabilities…

1.2 Research situation in the country

1.2.1 Group of works related to the theory of defense function in criminal procedure

In legal sciences, issues related to the theoretical basis of the thesis have quite a lot of published works and articles at different levels

* First of all, the group of scientific works on theoretical research

on the function of the criminal procedre including the function of defense

These include researches such as the "Vietnam CrPC Model", which was

presided over by Supreme People’s Procuracy in the Project on Vietnam

CrPC Model (2010); The article "The functions of criminal procedure and issues to improve the model of Criminal Procedure in Vietnam today" by

Assoc Prof Dr Nguyen Thai Phuc; Presentation of the author Dinh Thi

Mai at the scientific conference "The functions of criminal proceedings in the current context of judicial reform in Vietnam" (2015)

* Studies of human rights in relation to the rights of defense of accused persons:

* Researches on the concept and characteristics of criminal

procedure functions: The article "Discussing the functions of accusation, defense and adjudication in criminal procedures" in 2003 by Hoang Thi

Son ; Presentation report of Assoc.Prof Dr Hoang Thi Minh Son at the

Scientific Conference "The functions of criminal proceedings in the context

of judicial reform in Vietnam today" (2015)

* The research work on litigation is also a useful resource related to the theoretical basis of the thesis It is possible to mention the doctoral

dissertation "Principles of litigation in Vietnam CrPC - theoretical and practical issues" by Nguyen Van Hien, 2010

1.2.2 Group of works directly related to the thesis content

* The group of research works on the right to defense:

* Group of works related to the actual situation and solutions to perfect the defense function

1.3 Assessment the research situation

1.3.1 Theoretical issues on defense function in criminal procedure

In the above-mentioned scientific studies, concepts, roles and contents of defense function have been raised However : - Basing on the function of defense function : there has not been any comprehensive research on this content, very few researches on the origin and basis of the appearance of defense function in the element of criminal procedure - Regarding the concept of pleading function : there are still many different views and opinions - Regarding the role of the function of defense : just giving a general outline, there is no explanation or analysis ; No in-depth research on the role of defense functions The research works have almost

no new awareness about the function of defense - one of the three basic functions of the CrPC - Regarding the content of the defense function : although there are still some disagreements about the content of the defense function, but most have confirmed that the content of the defense function

is the activities of the owner’s excuse - Regarding the characteristics of the

defense function : there has not been any work that has generalized the characteristics of the defense function - Regarding the relationship between the Criminal Procedure functions : Most of the studies have highlighted the relationship between the Criminal Procedure functions, which is the relationship between the accused function, the defense function and judicial functions These functions are closely related, closely intertwined, coexist and develop However, the analysis of the relationship of defense functions with the other two functions in the administrative procedure has not been deeply studied, specifically, only at the level of generalization and brief analysis

1.3.2 Situation of defense function in Vietnam's criminal procedure

- On the current situation of the provisions of the law on defense functions:

A number of research studies have outlined the birth of defense functions and defense functions shown in certain historical periods In particular, the defense function shown in the CrPC 2015 has not been written and researched on this issue Regarding the provisions on defense functions abroad, a number of research works in foreign countries and in the country have outlined general rights of defense, defense counsels in some countries such as Japan, France, Germany, However, there has not been any in-depth study of the function of defense in certain countries

- Regarding the current situation of performing the defense functions: All studies have highlighted the actual situation of exercising the right to defense and the defense activities of defense counsels in the administrative procedures as in the investigation period , the stage of adjudication at the time of applying the CrPC, 2003 Most of them point out the real situation

of exercising the right to defense, such as: The reality of the granting of defense certificates; Situation in the collection of documents, objects and details of defense counsels; Situation in the lawyers' contact with accused persons, suspects and defendants; The situation of lawyers at the first-instance trial, especially in the debate, in response to the Procuracy representative Most of the works are written about the implementation status in terms of the right to defense Very few works have been written on the current situation of defense counsels of defense counsels, especially the situation of other defense counsels such as people's defense counsels, legal representatives of suspects and defendants In particular, no work has been

written on the status of performing the defense functions of defense counsels and accused persons according to the CrPC 2015

1.3.3 Solutions to perfect the law and ensure the performance of defense functions in Vietnam's criminal procedure

The research works have raised a number of measures to perfect the regulations on the right to defense, to raise the efficiency of defense activities of defense counsels For example: Supplementing a number of rights and mechanisms to ensure that defense counsels perform well their legal rights; Expanding a number of defense counsels' powers such as the right to collect evidence The defense counsel and the procedure-conducting persons must respect the pleading results and the responsibility

in ensuring the performance of the defense counsels' rights and handling measures in case of violation; Amendments and supplements to regulations

to create favorable conditions for defense counsels to quickly participate in the proceedings and approach the process of resolving the case in the direction of simplifying procedures for granting defense pleadings and procedures to participate in defense However, the evaluation of the provisions of the CrPC 2015 on the function of defense, the unreasonable contents of the defense function are codified in the CrPC 2015 there is no scientific study any research on this issue Since then, the introduction of measures to ensure the implementation of the defense function and perfect the provisions of the law on defense function in the CrPC 2015 have not been comprehensively studied

1.3.4 Issues needed for further research

Firstly, the thesis needs to continue studying some theoretical

issues such as: the concept of defense function has been used, mentioned by some domestic researchers but has not been unified and not studied yet treatise to give concept and analyze inner meaning of this concept; There are no scientific studies on the function of defense functions in the CrPC, and the role of the defense functions is mentioned through the role of the Criminal Procedure function in general, so there has been no generalization and further analysis of this content A number of theoretical issues have been mentioned by the research work but have not yet had in-depth analysis

or explanation such as : The form of performing the defense function in the administrative procedure; The existence of defense functions in the criminal

procedure models is referred to through the analysis of LRC functions in the LRC models but still lacking; The relationship between the defense functions and the functions of the accused and the adjudicatory functions

Secondly, the provisions expressing the defense function in certain

historical periods need to be analyzed and explained more in-depth, especially the evaluation of the provisions of the CrPC 2015 on the function

of defense The study of the actual situation of performing the defense functions under the CrPC 2015 should be conducted on the basis of collecting report data from the procedure-conducting agencies, the Vietnam Law Federation and conducting surveys and interviews of some lawyers in Hanoi and local areas

Third : Solutions to improve the law and solutions to organize the

implementation of the defense function in the Criminal Procedure in accordance with the current situation of Vietnam and the views of the Party and the State on ensuring functional performancenin the CrPC for development orientation to 2030

Chapter 2 THEORETICAL ISSUES ON DEFENSE FUNCTION

IN THE CRIMINAL PROCEDURE 2.1 Concepts, characteristics of defense function in criminal procedure 2.1.1 Concept of defense function in criminal procedure

* Awareness of function

The function of CrP is an integral part of the CrP Therefore, it is necessary to be aware of the functions of the centers of general practice in general and the functions of defense in the centers of particular crimes based on the functional basis to explain more deeply the research issues

* The concept of criminal procedure function

* Definition of defense function in criminal procedure

Basis for forming the function of defense in the Criminal Procedure: The appearance and introduction of the function of defense in the criminal procedure is an indispensable objective It can be said that the democratic and humane nature of the social regime is the basis for the appearance of defense functions in the criminal procedure The nature of democratic society shows that, if there is a function of accusation, there

must be a function of debating - defending to ensure a thing, a phenomenon,

an act which is assessed in many different directions, to identify objective truths, do not injustice innocent people; at the same time, ensure fairness in the application of the law In the practice of applying criminal law, it is not always the right to apply the laws of the intelligence agencies and the awareness of the content of laws is not always uniformly understood That will affect the legitimate rights and interests of the accused Therefore, the defense function appears with the noble purpose of protecting justice, protecting the rights and interests of the accused; with the desire that the legal rights and interests of the accused are not violated or tolerated in accordance with the law

From a procedural point of view, the defense function is broader and more complex Theoretically, legal functions are classified into regulatory and protection functions “The protection function of the legal system is determined by the need to protect social relations, protect the interests of citizens, social groups, classes, classes and the whole commune Assembly” [78, p.108] The basic characteristic of protected social relations

is that within the scope of such relations, state coercive measures are applied, legal responsibilities are taken According to Assoc.Prof Dr Vo Khanh Vinh, in the field of CrP relations, the legal protection function manifests itself in three types of responsibility performance: in the form of security, protection, recovery From the above analysis, it can be seen that the defense function in the administrative procedure is under the protection function The function of defense appears to be an indispensable objective with the purpose of protecting the rights and interests of the accused, protecting the disadvantaged subjects in society from decisions of state power and guarantee for the rights of the accused are exercised in practice The protective aspect of the defense function is shown in pointing out the options for defense and protection activities and the implementation of these activities is of common interest, preventing law violations from prosecutors, especially the accusatory subjects

In order to better understand the function of defense in the Criminal Procedure, it is necessary to put it in relation to the purpose and duties of the CrPC and the principle of Criminal Procedure

Regarding the concept of the function of defense in the Criminal Procedure, there is still no agreement and currently there are many different opinions It can be seen that criminal procedure is a combination of activities of different groups of subjects such as investigating bodies, procuracies, courts and defense counsels When these subjects participate in the LRC, they are influenced by different tasks and interests, so their orientation of activities is also different The administrative procedures of these subjects are bound and linked together by the common purpose of the administrative procedures and are consistent with each other The defense function is one of the basic functions of the Criminal Procedure, therefore, derived from the approach of Criminal Procedure as analyzed above, the

author considers that "the function of defense is the operational aspects the great and fundamental orientation of criminal proceedings is recognized by law and ensures the accused party's ability to present evidence and arguments against the charge; contribute to protecting justice, protecting the legitimate rights and interests of accused persons and commercial legal persons, and help the case be resolved objectively, comprehensively and fully”

2.1.2 Features of the defense function in criminal proceedings

- Subjects performing the function of defense in criminal procedures:

Subjects performing the function of defense also have certain characteristics, with the purpose of protecting the legitimate rights and interests of the accused Different from the subjects of the right to defense, the subjects exercising the function of defense are: Persons held in emergency cases, accused persons and defense counsels

- Scope of the defense function in criminal procedure:

The defense function arises when a person or commercial entity commits an crime

The end of the defense function is determined when the accusation are no longer available In some special cases, when the grounds of accusation no longer exist, the competent subject who issues a decision to suspend the case will have the function of the defense ceased earlier Or, in cases where the legally effective judgment is reviewed and re-settled according to appellate procedure, cassation or reopening procedure, the