IMPROVING THE LEGAL PROVISIONS OF THE BASIS FOR INITIATING A CRIMINAL CASE UNDER THE CRIMINAL PROCEDURE CODE OF VIETNAM

ABSTRACT

Prosecuting a case is the first stage of the criminal case resolution process. The prosecution of the case must be based on the grounds for prosecuting the case prescribed by the Criminal Procedure Code. This article analyzes some common issues regarding the basis for prosecuting criminal cases, highlights limitations and inadequacies in legal regulations, and then proposes improved solutions. Thus, the basis for prosecuting a criminal case is one of the most important contents of prosecuting a criminal case.

АННОТАЦИЯ

Возбуждение уголовного дела является первой стадией процесса разрешения уголовного дела. Возбуждение дела должно основываться на основаниях возбуждения уголовного дела, предусмотренных Уголовно-процессуальным кодексом. В данной статье анализируются некоторые общие вопросы, касающиеся оснований уголовного преследования, подчеркиваются ограничения и недостатки правовых норм, а затем предлагаются улучшенные решения. Таким образом, основание возбуждения уголовного дела является одним из важнейших содержаний уголовного преследования.

Keywords: Criminal Procedure Code, criminal proceedings, criminal cases, the basis for prosecuting a criminal case.

Ключевые слова: Уголовно-процессуальный Кодекс, уголовный процесс, уголовные дела, основания возбуждения уголовного дела.

According to Article 143 of Vietnam Criminal Procedure Code 2015, amended and supplemented in 2021, “a case can only be prosecuted when it has been determined that there are signs of a crime”. Determining signs of crime is based on the following grounds: (1) Individual denunciation; (2) News from agencies, organizations, and individuals; (3) News on mass media; (4) Proposal for prosecution by State agencies; (5) Authorities competent to conduct proceedings directly detect signs of crime; (6) The offender confesses. Thus, the basis for prosecuting a criminal case is the signs of crime and these signs are determined based on bases such as denunciations, crime reports, and recommendations for prosecution...

According to Article 143 of Vietnam Criminal Procedure Code 2015, the basis for prosecuting a criminal case is signs of a crime. These are initial documents about criminal events in general. They may not fully reflect the crime that has occurred, but they are the basis to confirm that an event occurred and that event has signs of crime, is the basis to confirm that proceedings must be conducted to clarify the case. Crime signs are determined on the basis of information obtained from certain sources prescribed by law. Based on the verification of those sources of information, the prosecuting agencies will determine whether there are signs of crime or not to decide whether or not to prosecute the criminal case.

The basis for prosecuting a criminal case is the reported, reported incident or the discovery of signs of a crime. To prosecute a criminal case, the criminal procedure law only requires “there are signs of a crime”, but not “there are enough signs of a crime”. Because, the decision to prosecute a case does not mean accusing anyone, but only opening a case so that the Investigation Agency has a basis to conduct specific investigative activities as per the law criminal regulations to determine the objective truth of the criminal case.

When determining signs of a crime, it is only necessary to determine that a crime has occurred without determining who committed the crime. After prosecuting a criminal case, the Investigation Agency will conduct investigative activities to identify the person who committed the crime. Therefore, to make a decision to prosecute a criminal case, the competent authority must determine whether a violation of the law has occurred and whether that behavior has signs of a crime or not.

• Some limitations, shortcomings and recommendations for improvement

Firstly, on how to understand the content “identifying signs of crime”. Article 143 of Vietnam's Criminal Procedure Code 2015 identifies signs of crime as a basis for competent agencies to make decisions to prosecute criminal cases, but so far this basis has not been explained by competent agencies, so In practice, there are many different interpretations. However, in general, they agree on signs of crime as a basis for prosecuting criminal cases in the following contents: (1) the signs of crime that are the basis for prosecuting the case are the signs of the crimeprescribed in the Penal Code. That is the basis for distinguishing crimes from non-criminal acts and other illegal acts; (2) the criminal signs that are the basis for prosecuting a case differ only in their completeness from the criminal signs in the Penal Code. Criminal signs that are the basis for prosecuting a case do not require full identification such as criminal signs in the concept of crime and criminal signs in the criminal components in the Penal Code.

Second, the issue of criminalization of civil relations, which means the prosecution of criminal cases when the cases have no signs of crime but are only civil disputes or other violations of the law. In many cases, litigation agencies have not properly assessed the nature of civil relationships. This stems from the awareness of the competent authorities conducting proceedings that the grounds for prosecuting criminal cases are not yet thorough, and at the same time, some criminal signs specified in the Penal Code are also unclear. , leading to many different interpretations, there are cases where non-criminal cases are criminally prosecuted.

Third, the interpretation of the principle that “no one shall be tried or punished a second time for the same crime for which he or she has already been convicted or acquitted in accordance with the law and due process criminal proceedings of each country”. This principle is recognized in the 1966 International Covenant on Civil and Political Rights, but in each different country there are different ways of understanding, explaining and applying it. In Vietnam, the Constitution and criminal procedure law do not limit whether effective judgments or decisions are from Vietnamese Courts or foreign Courts. According to Article 6 of the 2015 Penal Code, Vietnamese citizens who commit crimes outside the territory of Vietnam can be prosecuted for criminal liability under this Code. However, the question is: If a Vietnamese citizen commits a crime abroad and has been dealt with by a court or competent authority of the host country for that crime by judgment or decision. Once legally effective, will Vietnam still prosecute that crime. This issue in the provisions of Vietnamese law as well as the mutual legal assistance agreements that Vietnam has signed with other countries has not been clearly defined.

Fourth, in addition to criminal signs being the basis for prosecuting cases in ordinary cases, the 2015 Criminal Procedure Code also stipulates the basis for prosecuting cases at the request of the victim (Article 155). However, the contents of prosecution at the request of the victim still exist, with certain shortcomings such as the issue of the scope of crimes, which requires additional grounds such as a request for prosecution from the victim to be able to prosecute, prosecution, determining whether the denunciation is a request to prosecute or not, or if there has been a denunciation, there still needs to be a petition to prosecute before the criminal case can be prosecuted at the request of the victim.

From the limitations and inadequacies mentioned above, according to the author, the current Criminal Procedure Code needs to continue to improve its contents related to the grounds for prosecuting cases, thereby contributing to helping competent agencies conduct prosecutions. There is a clearer basis for prosecuting cases promptly and legally. Specifically:

Firstly, central judicial agencies need to have specific instructions to clearly identify signs of crime according to the provisions of Article 143 of the 2015 Criminal Procedure Code, thereby creating favorable conditions for applying to prosecute cases, actual criminal convictions accurately.

Second, it is necessary to improve the regulations on grounds for prosecuting criminal cases, associated with continuing to improve the signs that constitute crimes in the Penal Code to contribute to limiting the criminalization of civil relations, business, economics. To avoid the criminalization of civil and economic relations, central judicial agencies need to have specific directives and instructions to direct lower-level agencies to thoroughly implement the principle of initiation, prosecute the case, only when it is determined that there are signs of a crime - that is, signs of violation of criminal law as prescribed in the Penal Code, can the case be prosecuted. In addition, it is necessary to improve the provisions of the Penal Code on signs constituting crimes of appropriation and economic crimes, especially crimes of fraudulent appropriation of property and abuse of trust to appropriate property.  So that the prosecuting agencies when prosecuting cases have clear and accurate grounds in the application process.

Third, competent agencies need to issue specific guidance documents on cases where Vietnamese citizens commit crimes abroad and have been handled by the Court or competent agencies of the host country. If a person commits that crime with a legally effective judgment or decision, will the competent Vietnamese agency prosecute that crime or not. Clause 3, Article 31 of the 2013 Constitution indicates: “No one shall be sentenced twice for the same crime”. In Vietnam, the Constitution and criminal procedure law do not limit whether effective judgments or decisions are from Vietnamese Courts or foreign Courts. Thus, whether or not to prosecute a criminal case must be divided into two cases: (1) If the sentencing of the host country is in accordance with the laws and criminal procedures of Vietnam, then the Vietnamese competent authorities will not prosecute criminal cases; (2) If the sentencing of the host country is not in accordance with the laws and criminal proceedings of Vietnam, the competent authorities of Vietnam have the right to prosecute a criminal case if the offense is committed harm the legitimate rights and interests of Vietnam.

Article 155 of the Criminal Procedure Code 2015 needs to continue to expand the scope of crimes, requiring the basis of a request from the victim for the competent agency to initiate proceedings to prosecute the case. For example, the following crimes: Crime of illegally arresting, detaining or detaining people (Article 157); Crime of violating another person's residence (Article 158); Crime of infringing on the confidentiality or security of another person's correspondence, telephone, telegram or other form of private information exchange (Article 159); Crime of illegally entering another person's computer network, telecommunications network or electronic means (Article 289). In general, the above crimes are crimes of infringement whose direct object is the personal rights of the victim, then harming social order and safety and other objects.

Article 155 of the Criminal Procedure Code 2015 also needs to supplement regulations on the time limit for requesting prosecution because this law does not stipulate a specific time limit within which the victim has the right to request prosecution, meaning that they have the right to request prosecution, prosecute a case at any time, without any time limit. If the case falls under the provisions of Article 155 of the Criminal Procedure Code and for some reason the victim has not requested prosecution, but has not expressed the will not to request prosecution, the case will be suspended and cannot be resolved. In these cases, the investigation agency cannot decide to prosecute the case because there has not been a request for prosecution from the victim, nor can it decide to suspend the case because there is no basis.

References:

1. Constitution of the Socialist Republic of Vietnam 2015// URL: https://worldconstitutions.ru/?p=26  (accessed 22.02.2024)
2. Criminal Code of the Socialist Republic of Vietnam 1999// URL: https://j.jvolsu.com/index.php/en/component/attachments/download/2861  (accessed 22.02.2024)
3. Criminal Code of the Socialist Republic of Vietnam 2015, amendments and additions in 2017. // URL: https://www.policinglaw.info/assets/downloads/2015_Criminal_Code_of_Vietnam  (accessed 22.02.2024)
4. Criminal Procedure Code of the Socialist Republic of Vietnam 2015 // URL: https://www.wipo.int/wipolex/ru/legislation/details/21477  (accessed 22.02.2024)