It also analyzes and evaluates the current state of the quality of first-instance trial for criminal cases through the trial practice of two-level People’s Courts in Hai Duong province,
Trang 1VIETNAM ACADEMY OF SOCIAL SCIENCES
GRADUATE ACADEMY OF SOCIAL SCIENCES
L
PHAM VAN TUYEN
THE QUALITY OF FIRST-INSTANCE TRIAL FOR CRIMINAL CASES IN HAI DUONG PROVINCE
Trang 2The dissertation completed at Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences
Supervisor: Assoc Prof Dr Nguyen Tat Vien
Reviewer 1: Assoc Prof Dr Tran Van Do
Reviewer 2:Assoc Prof Dr Tran Van Luyen
Reviewer 3: Assoc Prof Dr Hoang Thi Minh Son
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 2021
The dissertation may be found at:
- Vietnam National Library;
- Graduate Academy of Social Sciences Library
Trang 3INTRODUCTION
1 The necessity of the research topic
Trial is a key mission of judicial activities and the Court holds a central position in the system of judicial agencies Through trial, the Court plays an important role in protecting justice, human rights, legitimate rights and interests of the state and the people In the criminal field, the Court is the only institution that having jurisdiction to hear a person charged with committing a crime and penalty With such importance, assurance of trial quality is an essential requirement Particularly, first-instance trial for criminal case is the opening stage for the whole trial activity, all matters related to the case are considered and decided by the Court, thus ensuring trial quality for criminal cases is the first requirement for first-instance trial
A first-instance judgment is tried objectively, comprehensively, properly by the law will reduce the rate of appeals and protests under the appellate order, contributing to reducing costs and creating the people’s trust towards the Court
Assessing the court performance, of which trial is a key activity, aims to create a basis for ensuring trial quality is always one of the leading concerns
in Vietnam The Politburo Resolution No 08/NQ-TW dated January 20,
2002 and Resolution No 49/NQ-TW dated June 2, 2005 set out key requirements and tasks of hearing, accordingly, the Court must ensure that all citizens are equal to the law, really democracy, objectiveness, and make judgements and decisions in accordance with the law, convincingly, within the allotted time
Examining comprehensively and systematically trial quality by specific criteria so as to propose solutions to ensure and improve the quality of trial for criminal cases, in which, the quality of first-instance trial for criminal cases is an urgent requirement To address this important task, the author
has conducted the research titled “The quality of first-instance trial for criminal cases in Hai Duong province”
2 Research purpose and tasks
2.1 Research purpose
Trang 4The dissertation presents scientific arguments on the quality of instance trial for criminal cases and identifies criteria and factors affecting the quality of first-instance trial for criminal cases It also analyzes and evaluates the current state of the quality of first-instance trial for criminal cases through the trial practice of two-level People’s Courts in Hai Duong province, thenceforth, it proposes solutions to ensure and improve the quality of first-instance trial for criminal cases
first-2.2 Research tasks
The dissertation aims to systematize theoretical awareness of the trial and trial quality, thenceforth, it clarifies the basic theoretical issues on the quality of first-instance trial for criminal cases; to analyze legal regulations related to the quality of first-instance trial for criminal cases; to assess the quality of first-instance trial for criminal cases through the trial practice of two-level People’s Courts in Hai Duong province; to propose solutions to ensure and improve the quality of first-instance trial for criminal cases
3 Research subject and scope
3.1 Research subject: the theoretical issues on the quality of
first-instance trial for criminal cases, the current state of the law and the trial practice of two-level People’s Courts in Hai Duong province
3.2 Research scope
- Regarding contents: the research scope for “first-instance trial for
criminal cases” is the activity conducted by the People’s Court (without the Military Court) The dissertation just approaches the quality of first-instance trial for criminal cases from the provisions of the criminal law and criminal procedure
- Regarding time and space: the dissertation examines regulations related to
the quality of first-instance trial for criminal cases of the People’s Court in the Criminal Code 2015 and the Criminal Procedure Code 2015, and the guiding documents comparing with regulations of the Criminal Code 1999 and the Criminal Procedure Code 2003 Statistics from 2011 to 2019
4 Methodology and research methods
Trang 5The dissertation is based on the methodology of dialectical materialism and historical materialism, Ho Chi Minh's thoughts on the state and law, the Party and State’s viewpoints on building a socialist rule-of-law State Specific research methods include:
- The study utilizes methods of analysis, synthesis and systematics to analyze and present the concepts of trial quality, the quality of first-instance trial for criminal cases; to identify factors affecting the quality of first-instance trial for criminal cases, as well as principles, criteria, factors affecting the quality of first-instance trial for criminal cases
- Method of comparative jurisprudence is used to examine experiences
of countries around the world in order to identify content of the concept of the quality of first-instance trial for criminal cases and criteria for the quality of first-instance trial for criminal cases
- Methods of discussion, interview with experts and analysis are used to identify requirements of improving the quality of first-instance trial for criminal cases
- Methods of practical survey, case studies, statistics of competent state agencies are used to evaluate major results reflecting the quality of first-instance trial for criminal cases
- Research methods can be used intermittently and approach disciplinary and interdisciplinary
multi-5 New contributions of the dissertation
On the basis of systematizing scientific viewpoints on the quality of first-instance trial for criminal cases, the dissertation presents the concept and criteria for the quality of first-instance trial for criminal cases, and factors affecting the quality of first-instance trial for criminal cases in Vietnam
By assessing the current state of the quality of first-instance trial for criminal cases in practice of two-level People’s Courts in Hai Duong province, the dissertation identifies the necessary of ensuring and improving the quality of first-instance trial for criminal cases, thenceforth,
it proposes viewpoints and solutions to improve the quality of first-instance trial for criminal cases
Trang 66 Theoretical and practical significance of the dissertation
Theoretically: The dissertation seeks to supplement and develop
scientific arguments on the quality of first-instance trial of the People’s Court
Practically: The research findings of the dissertation contribute to
ensuring and improving the quality of first-instance trial for criminal cases and can be used as reference for researching, teaching and learning
7 Structure of the dissertation
Besides the introduction, conclusion, and references, the dissertation includes 4 chapters
Chapter 1 LITERATURE REVIEW 1.1 Research situation in Vietnam
1.1.1 Research works on first-instance trial for criminal cases
In Vietnam, so far there have been many studies on first-instance trial for criminal cases with different approaches
First, research works on trial activity to be approached from perspective
in the name of state power to exercise judicial power or the state’s trial function
Typically, “Judicial power in the Socialist rule-of-law state of the people, by the people and for the people in Vietnam” by Prof Dr Vo
Khanh Vinh, Review of State and Law, 2003; “The judicial institution in the
rule-of-law state” by Nguyen Dang Dung, Justice Publishing House, 2004;
“Strategy of judicial reform-theoretical and practical issues” by Dao Tri Uc, Review of State and Law, 2004 “The judicial system and judicial reform in
Vietnam” by Dao Tri Uc, Social Science Publishing House, 2002; “Judicial reform and litigation issue” by Nguyen Manh Khang and many other scientific works Although these studies do not directly mention first-instance trial for criminal cases, this is the basic reasoning on judicial power including trial activity These studies are common consensus on trial content that is in the name of state power to assess and make decisions on the legality and correctness of legal acts or legal decisions while happening disputes and contradictions in society
Trang 7Second: Research works directly mention first-instance trial for criminal cases
Typically, “Completing first-instance trial procedures for criminal cases
to meet the requirement of judicial reform in Vietnam” by Nguyen Thi
Thuy, Review of State and Law, 2009; “First-instance trial in criminal
proceedings of Vietnam” by Vo Thi Kim Oanh and some other research works From these studies, we can see that the process of resolving a specific criminal case must go through many different stages, in which, first-instance trial is an important stage The concept of “first-instance” has many different meanings, for example, the case is heard at the lowest-level court or the case is brought to trial for the first time or hearing the case that defendants, litigants have the right to appeal and the Procuracy has the right
to protest against a decision
Third: research works on ensuring the principles of first-instance trial for criminal cases
Typically, “Some issues on litigation in criminal proceedings” by Le
Tien Chau, Journal of Legal Science, No 1, 2003; “Some measures to
ensure the implementation of principle that judges and jurors are
independent and just obey the law while hearing” by Pham Hong Hai, Review of State and Law, No 5, 2003 and many other research works
1.1.2 Research works related to conception of trial quality
In dictionaries such Vietnamese dictionary by Hoang Phe, VASS, 1997; Sino-Vietnamese dictionary and language by Nguyen Lan, HCMC Publishing House, 1989, “quality” is often used opposition to quantity and refers to internal characteristics that make up an object quality and value
Doctoral dissertation title “The quality of hearing administrative cases
by the provincial People’s Court in Vietnam today” by Than Quoc Hung,
HCM National Academy of Politics, 2018 introduces the concept: “The quality of hearing administrative cases by the provincial People’s Court is the results of the process of evaluating, using evidence and applying the law
of the Court to make correct and objective verdict in accordance with legal regulations and ethical standards of society in order to promptly settle disputes arising from administrative legal relations”
Trang 8The concepts of “trial quality” and “trial effect” are often referred together and similarities The effectiveness of hearing criminal cases in
general has been mentioned in the doctoral dissertation “The effectiveness
of trial activities in criminal proceedings” by Hoang Manh Hung, GASS,
2010 Accordingly, the effectiveness of trial activities means “the social values that the judgment brings to restore social relations and ensure social order as well as enforcing the law by aspects of politics, economy, culture, national defense and other requirements of social progress” With this approach, it seems that “trial quality” and “trial effect” have many interference points in terms of influencing factors
1.1.3 Research works related to criteria for trial quality
Doctoral dissertation titled “The quality of hearing administrative cases
by the provincial People’s Court in Vietnam today” by Than Quoc Hung,
HCM National Academy of Politics, 2018 introduces criteria for assessing trial quality in administrative cases of the provincial People’s Court including (1) The professional ethical criteria of administrative proceeding-conducting persons; (2) Criteria for compliance with the law in hearing administrative cases of the provincial People’s Court; (3) Criteria of professional, skills in hearing administrative cases of the provincial People’s Court; (4) Criteria for the Court’s verdict quantity to be canceled
or modified
Doctoral dissertation titled “Applying the law for first-instance trial for criminal cases by the Military Court in Vietnam today” by Duong Van Thang, HCM National Graduate Academy of Politics, 2007, identifying factors affecting the law application for first-instance trial for criminal cases
by the Military Court including (1) The quality of the legal system; (2) Capacity, qualifications and qualities of the subjects applying the law (3) The Party Committees leadership for trial work; (4) Appropriateness of the organizational structure of the military courts and the judicial support agencies; (5) effective co-ordination and regulatory relationships among proceeding-conducting agencies; (6) Facilities, equipment and remuneration policy; and (7) The elected bodies supervision and promote the people’s mastery
Trang 9In “Legal protection agencies” by Prof Dr Vo Khanh Vinh, People’s Public Security Publishing House, 2003 emphasizes the rules of the Court’s trial, mechanisms of ensuring the court’s operation and factors affecting the court’s performance
From studies mentioned above, it can be seen that evaluation of the trial quality has been examined in Vietnam, but the study on criteria for quality evaluation of applying the law of the Court or the trial quality has just mentioned general criteria and without component criteria, and there is no linkage among criteria for evaluating the trial quality with factors affecting the trial quality
1.2 Research situation abroad
1.2.1 Research works on the conception of trial quality
The term “quality” is often used as a technical concept to refer to the quality of goods, services or providing the quality of goods and services in private sector Then, the idea of “quality thinking” is applied to evaluate services-provided not only by the private sector but also by the public sector including the judiciary Thus, the terms “quality of justice” or
"judicial quality” appeared Accordingly, “justice” is considered a public service and the quality of justice means the quality of providing a public service
These studies have partly mentioned “trial quality” and “trial quality for criminal cases” but they have not given the concept of “trial quality” However, these studies’ goal is to “measure” the Court’s trial activity
1.2.2 Research works related to criteria for trial quality
In 2006, the UN Office on preventing Drugs and Crime along with judicial authorities in several countries carried out a study and pointed out six basic areas of the Court's activities, including: (1) access to justice, (2) timeliness; (3) the independence, justice and impartiality of the Court; (4) uniformity; (5) accountability and transparency of judicial authorities; (6) coordination among stakeholders in the judicial sector
In the US, judges and scholars have proposed an initiative to develop an evaluation system aims at enhancing the court’s fair and effective trial capacity The outcome of this initiative is the Court's performance standards
Trang 10with 68 indicators for 22 standards in 5 different areas, including: (1) access
to justice; (2) timeliness; (3) Equality, fairness and unity; (4) Independence and accountability; (5) public confidence
The reform program of Dutch Judiciary has been implemented since
1999 based on the experience of the US Court’s Standard of Operations and offers 5 areas of assessment including (1) independence and unity; (2) timeliness of proceedings; (3) uniformity of the law; (4) expertise and (5) treatment of the parties
Since 1995, Finland has developed a set of judicial quality assessment criteria in 6 areas including (1) the process; (2) judgment; (3) treatment of the parties and the public; (4) promptness of proceedings; (5) competence and career skills; and (6) organize and manage trial activity
Thus, many models for assessing judicial quality and court quality have been developed in each country, region and globally over the past 60 years The models’ direction is to not only assess the court’s organizational aspects but also assess how the court performs its functions and duties, as well as the people’s feel and satisfaction about the Court
1.3 General assessment
1.3.1 The research results inherited by the dissertation
1.3 Overall assessment of research situation
Previous research works have mentioned and analyzed trial activity in the name of state power or the state’s trial function, this is the basic theoretical basis for determining “trial quality”
Many foreign studies and some domestic studies have examined
“judicial quality”, “the court’s quality” and “trial effectiveness”, this is the basis for the author introduces the concept of “trial quality” and distinguish the concept of “trial quality” from “trial effectiveness”
1.3.2 Issues need to be further examined
The dissertation seeks to examine and present concepts such as “trial quality”, “the quality of first-instance trial for criminal cases” and criteria for the quality of first-instance trial for criminal cases
The dissertation seeks to systematize the provisions of the law related to assessing the quality of first-instance trial for criminal cases and analyze
Trang 11factors affecting the quality of first-instance trial for criminal cases in Vietnam
Chapter 2 THEORETICAL ISSUES ON THE QUALITY OF FIRST-INSTANCE
TRIAL FOR CRIMINAL CASES 2.1 The concept and role of the quality of first-instance trial for criminal cases
2.1.1 The concept of the quality of first-instance trial for criminal
cases
From analysis and interpretation in terms of linguistics and exercising judicial power, as well as analyzing principle of two-level trial by the court and first-instance trial as a procedural stage, the author points out 6 characteristics of first-instance trial for criminal cases including:
- The process of exercising judicial power by the state
- The process of exercising basic function of the criminal proceedings that is trial function
- As the first and compulsory trial level for any criminal case
- Hearing the whole case including all contents of a criminal case (except cases partially canceled for investigation or re-trial)
- It is conducted on the basis of the Prosecution’s indictment
- The nature of first-instance trial for criminal cases is applying law of the court
From above analysis, the author introduces the concept: “First-instance trial for criminal cases is an activity in the name of the state conducted by a competent Court at the first and compulsory trial level for a criminal case based on the Prosecutor’s indictment to resolve the case and deciding whether defendant is guilty or not, and applying penalties and judicial measures for the defendant, as well as dealing with other contents of criminal case (except cases canceled for re-hearing)
By analyzing the concept of “quality”, comparing “quality” with
“efficiency” and “performance”, the study approaches the concept of
“quality” from perspective of suitability or responsiveness to the purpose
and requirement by this concept: The quality of first-instance trial for
Trang 12criminal cases is defined as the degree of satisfying purpose and requirements of the first-instance trial for criminal cases by a competent court
2.1.2 The role of first-instance trial for criminal cases
The study also analyzes and points out the role of first-instance trial for criminal cases that is: contributing to ensuring and respecting human rights and citizen rights; to prevent effectively and promptly handle all crimes; to ensure democracy, justice and equal rights of parties in the process of determining the truth of the case and criteria for assessing prestige of the court
2.2 Criteria for the quality of first-instance trial for criminal cases
2.2.1 The concept and meaning of criteria for the quality of instance trial for criminal cases
first-Criteria for the quality of first-instance trial for criminal cases is nature and effect as a basis for identifying, classifying, and evaluating the degree
of meeting objectives of first-instance trial for criminal cases While conducting the study, it is necessary to distinguish “criteria” from
“indicators” Criteria should be understood as the goals (standards) need to
be achieved, while indicators are used to measure or determine value of that goals
2.2.2 Criteria for trial quality in judicial system of several countries around the world and experience for Vietnam
In the US: CourTools developed by National Center for State Courts
The CourTools includes 10 indicators for evaluating performance as follows: (1) Approach and Equity; (2) Resolution rate; (3) Resolution time; (4) Unprocessed volume of cases; (5) Certainty of trial date; (6) Reliability and integrity of case files, (7) Collection of fines, (8) Effectiveness of using jury, (9) Court staff satisfaction and (10) Cost for per case
In European Countries: In the framework of the Quality Project, a
Quality Standards Task Force was established in 2003 to provide a set of trial quality standards including six areas: (1) the whole process; (2) Decisions; (3) How to treat litigants and people; (4) The speed of
Trang 13proceedings; (5) Qualifications and professional skills of judges; (6) Organizing and managing trial
In Australia: The Performance Review Commission has issued a
“Report on public services”, in which, comparing the performance of courts across Australia The main indicators in the report including timeliness; the cost of solving each case and the rate of solving cases
In Singapore: Singapore launched “the International Framework for
Court Excellence” (IFCE) to assess the court quality including 6 areas: (1) The ability to lead the court; (2) Court personnel; (3) Court strategy; (4) Court infrastructure and procedures; (5) The ability of participants to participate in the proceedings; (6) Desired results
Studying trial quality models in some countries around the world, we can see that there is not specific model or criteria for assessing the quality
of first-instance trial for criminal cases Countries around the world tend to assess the court performance quality or judicial quality in a broader category than “trial quality” and there is not common model or criteria in countries
However, we can give some experiences for Vietnam: it is necessary to define the core values of the Court and trial activity because this is the basis for defining and building criteria for trial quality These criteria should be built to reflect the feelings and views of the persons concerned and others involved in a case Building criteria for trial quality should be done by reasonable order, from determining objectives of hearing to selecting indicators and methods of data collection and evaluation
2.2.3 Proposing criteria for the quality of first-instance trial for criminal cases
From analysis mentioned above, the study proposes basic criteria for assessing first-instance trial quality for criminal cases:
(1) Guaranteeing criminal proceedings
Trial quality is not only the quality of judgment but also the quality of process means proceeding procedures because it directly affects the disputing parties’ ability to access to the court and defend their rights and interests at the court If the criminal proceedings are carried out in practice,