Những vấn đề lý luận và thực tiễn về kiểm sát thi hành án phạt tù tại việt nam tt tiếng anh

Therefore, that the law doctoral thesis "Theoretical and practical issues on the prosecution of imprisonment execution in Vietnam" aims to clarify the theoretical issues and evaluates

HANOI LAW UNIVERSITY

DINH HOANG QUANG

THEORETICAL AND PRACTICAL ISSUES

ON THE PROSECUTION OF IMPRISONMENT EXECUTION IN VIETNAM

Major: Criminal and criminal procedure law

Code: 9.38.01.04

SUMMARY OF DOCTORAL THESIS IN LAW

HANOI – 2020

HANOI LAW UNIVERSITY

Science superviors:

1 Prof Dr.Sc Le Van Cam

2 Ass.Prof PhD Do Thi Phuong

The thesis can be found at:

1) National Library of Vietnam 2) Library of Hanoi Law University

INTRODUCTION

Execution of imprisonment sentences plays an important role in ensuring that the Court judgments and decisions are actually enforced In Vietnam, the mechanism for direct, regular and highly professional supervision of imprisonment execution belongs to the prosecution of imprisonment execution of the People's Procuracy The prosecution of imprisonment execution are recognised and guaranteed in practice by Vietnamese law However, the reality shows a number of limitations in conducting that regulations which do not meet the requirements

Over the years, studying on prosecution of imprisonment execution has been paid much attention that lead to many research; however, there has been not an in-depth and comprehensive research on the presecution of imprisonment execution from theoretical, legal and practical perspectives

Therefore, that the law doctoral thesis "Theoretical and practical issues

on the prosecution of imprisonment execution in Vietnam" aims to

clarify the theoretical issues and evaluates legal reality to propose solutions

to improve the quality of the prosecution of imprisonment execution is an essensial matter both in theoretical and practical perspectives

of the prosecution of imprisonment execution from the study of theory, legal and practice in Vietnam as following: Clarifying the concept, characteristics, content of the prosecution of imprisonment execution in Vietnam; Distinguishing the prosecution of imprisonment execution from other forms of inspection and supervision; Analyzing the factors affecting the quality of the prosecution of imprisonment execution; Analyzing and assessing Vietnamese provisions on the prosecution of imprisonment execution; Clarifying the reality of law implementation of the prosecution

of imprisonment execution and presenting reasons for the limitations and shortcomings of this work; Assessing the requirements of improving the quality of the prosecution of imprisonment execution and proposing solutions to improve the quality of that work in Vietnam

The thesis objects are theoretical, legal and practical matters in the

prosecution of imprisonment execution of the People's Procuracies, which are carried out from the time the Court judgments or decisions take legal effect until the termination of imprisonment execution In particular, this

thesis studies theoretical issues in Vietnamese legal science and other countries’ that own similar Procuracy model to Vietnam on the prosecution

of imprisonment execution From criminal and criminal procedure law perspectives, the thesis also concentrates on practical matters in the prosecution of imprisonment execution in our nation from 2010 to 2019, except for suspended sentence; the prosecution of imprisonment execution involving foreign elements; granted amnesty; the statute for serving imprisonment sentences, clearing criminal records and the army

The thesis applies Marxist - Leninist methodology on the popular relationship, Ho Chi Minh thought on the State and laws, the views of the Communist Party of Vietnam on human rights, on judicial reform strategy,

on formulating a socialist rule-of-law State and international legal values

on prosecution of imprisonment execution At the same time, the author uses other specialized scientific research methods such as analysis, synthesis, comparison, history, statistics, sociological investigation to clarify research issues

Scientific and practical significance of the thesis:

- The thesis is the first scientific work at doctoral thesis level after the 2015 Criminal Procedure Code and the 2019 Law on execution of Criminal Judgments come into force which directly and systematically research on prosecution of imprisonment execution The scientific arguments on the concept, characteristics, content of prosecution of imprisonment execution and other research results of the thesis contribute

to supplementing and perfecting the scientific theories on prosecution of imprisonment execution

- Scientific arguments in analyzing laws, requirements and solutions

to improve the quality of prosecution of imprisonment execution mentioned in the thesis contribute practically and solve the current issues

in formulating and enforcing Vietnamese law in the judicial reform strategy, concretizes the provisions of the Constitution, formulate and perfect the legal system, including the Vietnamese law on prosecution of imprisonment execution

- The thesis is a practical reference in researching, teaching, developing and enforcing Vietnamese law on prosecution of imprisonment execution

In addition to the introduction, an overview of the research issue, conclusions, list of references and appendices, the research findings section of the thesis consists of 3 chapters:

Chapter 1: Theoretical issues on prosecution of imprisonment execution Chapter 2: Vietnamese law on prosecution of imprisonment execution and the practical implementation

Chapter 3: Requirements and solutions to improve the quality of prosecution of imprisonment execution in Vietnam

B OVERVIEW ABOUT RESEARCH

1 Research situation related to the thesis

1.1 Domestic studies

In the science of criminal procedure law and other law branches in Vietnam, there is no in-depth and comprehensive research on prosecution of imprisonment execution Some of the legal aspects related to prosecution of imprisonment execution have been briefly mentioned in some research on imprisonment execution in general The scientific contributions of the former research on prosecution of imprisonment execution are inherited and continue to develop by the thesis

1.2 International studies

At present, there is no research conducted in foreign countries mentioning

to the prosecution of imprisonment execution in Vietnam The number of research which works directly to the prosecution of imprisonment execution

in other countries is limited They almost concentrates on countries where the Procuracy is established as a separate system, under the National Assembly or directly under the Head of Statey, with the similar function of prosecution of imprisonment execution to Vietnam (like China, Russian Federation ) In some countries, when prosecuting imprisonment execution, the Procuracy has the tasks and powers to detect violations of a detention facility (directly supervising, interviewing detainees, checking records, documents, checking the compliance of the orders, requesting detention facilities to explain ) to overcome and handle violations (handling administrative violations, canceling disciplinary sanctions laws, deciding to release prisoners from isolation chambers, surveillance cameras, disciplinary chambers ) These are similarities with Vietnamese law A number of works have identified the basis and content of the prosecution of imprisonment execution as well as showed difficulties and obstacles in prosecution of imprisonment execution However, it is different from the Procuracy's specific tasks and powers in prosecution of imprisonment execution depending on each country’s conditions

2 Evaluation of other research’s results related to the thesis

Overall results of research on prosecution of imprisonment execution indicate that there is a lack of adequate analysis about the context and needs of prosecution of imprisonment execution, especially in implementing the 2013 Constitution, the 2014 Law on Organization of the People's Procuracy, the

2015 Criminal Procedure Code and the 2019 Law on execution of Criminal Judgments

Despite a number of feasible proposals in improving the quality of prosecution of imprisonment execution by the People's Procuracy in Vietnam pointed out from other related research, the solutions have not reached the synchronization and completeness yet due to the low convincing level of arguments In addition, these research have not presented strategic, comprehensive and long-term solutions for the prosecution of imprisonment execution of the People's Procuracy in Vietnam

3 Research orientation of the thesis

In Vietnam, there is no complete and systematic research but preliminary research on prosecution of imprisonment execution In other nations, there are research on the prosecution/supervision of imprisonment execution but they studies on foreign laws and reality Therefore, this thesis is not duplicated and foreign works as reference materials which contribute to the development of the thesis

Based on the studies of domestic and foreign scholars, the thesis will continue to absorb the appropriate contents In addition, the thesis will formulate a system of theoretical basis, analyze legal provisions and reality to give an overall viewpoint of prosecution of imprisonment execution as well

as propose solutions to improve the quality of the Procuracy's prosecution of imprisonment execution in Vietnam

B RESEARCH RESULTS

Chapter 1 THEORETICAL ISSUES ON THE PROSECUTION OF

IMPRISONMENT EXECUTION 1.1 Definition of prosecution of imprisonment execution

administrative - judicial in nature It is a judicial activity which exercises state power Therefore, it is required to have a mechanism for supervising and prosecuting these activities In Vietnam, one of the mechanisms for examining and supervising imprisonment execution is the People's Procuracy's prosecution of imprisonment execution These activities have the following characteristics:

- Prosecution of imprisonment execution aims to ensure the imprisonment execution in accordance with law; respect and protect human rights; detect and handle all law violations in imprisonment execution timely and strictly

- Subject of the prosecution of imprisonment execution is the People's Procuracy

- Objects of prosecution of imprisonment execution are acts and decisions of competent agencies, organizations and individuals in imprisonment execution (in the implementation of the order and procedures for imprisonment execution; positions, functions, tasks, powers and relationships between the competent agencies in imprisonment execution; tasks and powers of responsible individuals; rights and obligations of individuals sentenced to imprisonment; imprisonment management and education of imprisonment executors )

- The scope of prosecution of imprisonment execution is from the legal effect of Court's judgment or decision to the termination of imprisonment execution

“Prosecution of imprisonment execution is a summary of activities of the People's Procuracy for detecting, overcoming and handling law-violated acts and decisions by competent agencies, organizations and individuals It is

conducted from the legal effective date of the Court's judgment and decision to the termination of imprisonment execution with the purpose of ensuring the imprisonment execution in accordance with the law, respecting and protecting human rights, detecting and handling all law violations in imprisonment execution timely and strictly"

1.2 The content of prosecution of imprisonment execution

The content of prosecution of imprisonment execution can be divided into two groups of activities:

Firstly, prosecution of imprisonment execution to ensure the

imprisonment execution in accordance with law; respect and protect human rights; detect and handle all law violations in imprisonment execution timely

examining requested law events, directly taking measures according to the law

in prisonment execution)

Secondly, prosecution of imprisonment execution to ensure that all law

the order of review from the beginning; requesting the prosecuted agencies to pay a breach of time-bound and binding from effect temporarily suspending the observance of certain administrative or judicial decisions, especially those decisions relating to citizens' rights)

1.3 Distinguishing the activities of prosecuting of imprisonment execution from the activities of examining and supervising the imprisonment execution of other agencies

Prosecution of imprisonment execution activities of the People's Procuracy, together with activities of examining and supervising the imprisonment execution of elected bodies, social organizations and citizens, of the Inspectorate are aimed to ensure the strict and consistently-executed State's law on imprisonment execution

The differences as follows:

- Prosecution of imprisonment execution activities of the People's Procuracy is different from activities of examining and supervising the imprisonment execution of elected bodies, social organizations and citizens in

the implementing subjects, modes and supervising rights The People Procuracy's prosecution of imprisonment execution activities itself is under the supervision of elected bodies, social organizations and citizens In addition, that activities of the People Procuracy are conducted in executing imprisonment; while the supervision of imprisonment execution by elected bodies, social organizations and citizens is carried out outside that process which is not a regular and continuous activity due to their legal status and organizational structure Proposals of elected bodies, social organizations and citizens do not lead to legal consequences like the Procuracy's requests or petitions

- Prosecution of imprisonment execution aims to ensure the imprisonment execution in accordance with law; respect and protect human rights; detect and handle all law violations in imprisonment execution timely and strictly Meanwhile, inspection aims to examine the implementation of policies, laws, duties and powers of agencies, organizations and individuals to detect loopholes in management mechanisms, policies and laws to improve management quality

- Prosecution of imprisonment execution is judicial activities while the inspection of imprisonment execution is an administrative examination to serve administrative management When examining or inspecting, the subject of inspection, examination and management not only has the right to detect laws violations but also has certain administrative rights in handling violations For the Procuracy, when detecting violations, they have no administrative right over the supervised agencies, organizations and individuals

1.4 Factors affecting the quality of Prosecution of imprisonment execution

The following factors affect to the quality of prosecution of imprisonment execution:

- Legal factor;

- Material facilities, equipment and remuneration regimes;

- Qualifications and capabilities of officials and Prosecutors;

- Morality, consciousness and responsibility of officers and Prosecutors;

- Cooperative relationship between the Procuracy and competent agencies, organizations and individuals in the prosecution of imprisonment execution

Chapter 2 VIETNAMESE LAW ON PROSECUTION OF IMPRISONMENT

EXECUTION AND IMPLEMENTED PRACTICES

2.1 Provisions of Vietnamese law on prosecution of imprisonment execution

2.1.1 Provisions on prosecution of imprisonment execution from

1945 to before the Law on Organization of People's Procuracies in 2014

In Vietnam, the Prosecutor's Institute was established before the establishment of the People's Procuracy (1960) In 1946, based on the first Constitution, the Procuracy was established in the Court system from the provincial level upwards, under the Ministry of Justice and has the function of examining prisons Prosecution of imprisonment execution has been prescribed as a form of activity by the Prosecutor's Institute

Since the establishment of the People's Procuracy in 1960 based on the

1959 Constitution, the duties and powers of the People's Procuracy in executing imprisonment sentences has been stipulated in legal documents However, prosecution of imprisonment execution is a special activity with the object is the acts and decisions of competent agencies, organizations or individuals in the execution of imprisonment in a content and procedural relationships Therefore, in addition to the provisions of the criminal procedure law, prosecution of imprisonment execution is also stipulated in the Law on Organization of the People's Procuracies, the Law on Law on execution of Criminal Judgments and other legal documents The regulations all show the purpose of ensuring the imprisonment execution in accordance with law; respecting and protecting human rights; detecting and handling all law violations in imprisonment execution timely and strictly

2.1.1.1 Provisions on prosecution of imprisonment execution to ensure the imprisonment execution in accordance with law; respect and protect human rights; detect all law violations in imprisonment execution timely

In order to ensure the imprisonment execution in accordance with law; respect and protect human rights; detect all law violations in imprisonment execution timely, Vietnamese law at this stage prescribes the People’s Procuracy have the following duties and powers: directly and indirectly prosecute imprisonment execution; request the Court to discuss, consider exemption, postponement, temporary suspension or suspension of serving imprisonment penalties; appoint Prosecutors to attend meeting to consider exemption or reduction of imprisonment term; directly handle complaints and denunciations in management and education of imprisonment executors

2.1.1.2 Provisions on prosecution of imprisonment execution to ensure that all law violations in imprisonment execution are timely and strictly handled

In order to ensure that mission, Vietnamese law at that time has regulated the rights of the People's Procuracy: request individuals and agencies that commit violations to overcome violations; protests and petitions; prosecute or request to prosecute criminal cases; issue a decision to immediately release the unfounded and illegal imprisoned prisoner

By studying the provisions of Vietnamese law at that time on prosecution

of imprisonment execution, it can be comcluded that:

First, the introduction of the Law on Organization of the People's

Procuracy in 1960 marked the establishment of the People's Procuracy as an independent institution This is a prerequisite to formulate specific provisions

on the functions, tasks and powers of the People's Procuracy in prosecution of imprisonment execution

Second, there are some inadequacies in Vietnamese law at that time:

- The 1988 and 2002 Criminal Procedure Codes provide general provisions on the prosecution of imprisonment execution that leads to the lack of strict legal grounds when the Procuracy prosecute imprisonment execution according to the Criminal Procedure Code

- There is no direct regulations on the compliance with the laws of the Court in imprisonment execution