SOME PROBLEMS IN APPLYING THE VIETNAM CRIMINAL PROCEDURE CODE 2015

ABSTRACT

The 2015 Criminal Procedure Code, effective from January 1, 2018, was promulgated by the National Assembly of Vietnam to regulate the order, procedures, and content of prosecuting, investigating, and prosecuting activities. trial, execution of judgments and other legal relations, arising during the resolution of criminal cases. However, in the process of implementing the 2015 Penal Code, author realize that there are still limitations and inadequacies. In this article, the author has analyzed some limitations in the process of applying the Criminal Procedure Code and proposed some solutions to improve the Criminal Procedure Code in Vietnam.

АННОТАЦИЯ

Уголовно-процессуальный кодекс 2015 года, вступающий в силу с 1 января 2018 года, был обнародован Национальной ассамблеей Вьетнама для регулирования порядка, процедур и содержания уголовного преследования, следственной и уголовной деятельности, судебное разбирательство, исполнение судебных решений и другие правоотношения, возникающие при разрешении уголовных дел. Однако в процессе реализации Уголовного кодекса 2015 года автор отмечает, что ограничения и недостатки все еще существуют. В данной статье автор проанализировал некоторые ограничения в процессе применения Уголовно-процессуального кодекса и предложил некоторые решения по совершенствованию Уголовно-процессуального кодекса Вьетнама.

Keywords:  Vietnam, Criminal Procedure Code, investigation, criminal case, Military Court.

Ключевые слова: Вьетнам, Уголовно-процессуальный кодекс, расследование, уголовное дело, Военный суд.

The 2015 Criminal Procedure Code (amended and supplemented in 2017) takes effect from January 1, 2018, promulgated by the National Assembly stipulating the order, procedures, and content of conducting activities prosecution, investigation, prosecution, trial, judgment enforcement and other legal relationships arising during the process of resolving criminal cases, are important in meeting the requirements for construction and completion. However, in the process of implementing the Criminal Code In 2015, author realized that there were still some problems and inadequacies, so author carefully researched, amended, supplemented and provided guidance to ensure uniform application of the law by litigation agencies. Specifically:

First, the military court's jurisdiction is specified in Article 272 of the Criminal Procedure Code. Regarding the jurisdiction of the Military Court, there are still some difficulties as follows:

- Identify areas managed, protected and managed by the military. According to the provisions of the 1994 Ordinance on Protection of National Defense Works and Military Zones, Article 1 indicates: “National defense works and military zones are State property, assigned to the people's armed forces and governments at all levels to organize their construction, management, use and protection...”.  Article 2 indicates: “National defense projects are constructions, terrains and natural features are improved and determined to serve the purpose of defense and protection of the Fatherland. A military zone is a limited area determined to be used exclusively for military purposes”. In addition, many areas are currently defense land managed by the military but have not yet been put into use and are currently being used as joint ventures or business capital contributions by land use rights or for renting, lending, or building houses, public service leased or borrowed for officials and employees, or many areas of defense land have been converted to residential purposes to build houses for sale at preferential prices for officials and employees but have not yet been transferred to local management. Therefore, when crimes occur outside Army barracks areas such as the areas listed above, there are still different viewpoints between agencies conducting proceedings inside and outside the Army. Is the trial under the jurisdiction of the Military Court or the People's Court?

- Determine damage to the Army's reputation and honor. Currently, to evaluate an act or an event that damages the reputation and honor of the People's Army in reality cannot be quantified because there is no basis. Therefore, there needs to be specific guidance on content that damages the Army's reputation and honor to avoid inconsistent assessment and abuse in practical application. In addition, there also needs to be guidance on how to cause damage to the Army, in addition to the guidance of Joint Circular No. 01, it is necessary to supplement the case of National Defense land that has been leased or given away. Borrowing or joining a joint venture to contribute shares to do business when being violated is still under the jurisdiction of the Military Court.

- Regarding subjects who are national defense officers and citizens mobilized or contracted to serve in the military. The Criminal Procedure Code has added the subjects “defense officers” and “citizens mobilized or contracted to serve in the military” but up to now no agency has explained this subject, especially the issues relating to what type of military unit or enterprise that person serves; What type of deployment or contract will determine whether they are subject to trial by a Military Court when committing a crime or being a victim in a criminal case. Therefore, there needs to be clearer guidance on "“defense officers” and “citizens mobilized or contracted to serve in the military”. In opinion author, any citizen mobilized or contracted to any military unit or military enterprise, with any form of contract, is subject to trial by the Military Court.

- Jurisdiction related to “militia and self-defense during training or cooperation with the people's army in combat and combat service”. According to the provisions of Point a, Clause 1, Article 272 of the Criminal Procedure Code, the Military Court has the authority to try criminal cases in which the defendant is a “militia and self-defense during training or cooperation with the people's army in combat and combat service”. However, Article 392 of the 2015 Penal Code stipulates that militiamen and self-defense members while affiliated with the army in combat service are subject to criminal liability for crimes of violating duty responsibilities of soldiers. Thus, in terms of scope and subjects, the provisions in the Penal Code are narrower than the provisions of the 2015 Criminal Procedure Code.

Second, about the right to prosecute criminal cases. Currently, the right to prosecute criminal cases is specified in Clause 4, Article 153, Clause 3, Clause 2, Article 154 of the Criminal Procedure Code. Accordingly, "The Trial Council shall decide to prosecute or request the Procuracy to prosecute a criminal case if through the trial at the trial it is discovered that a crime has been committed" (Clause 4, Article 153). “Within 24 hours from the date of making the decision to prosecute a criminal case, the Court must send that decision along with related documents to the Procuracy at the same level” (paragraph 3, clause 2, article 154). Through trial practice, it has been shown that the above regulations are no longer appropriate. The reason and decision to prosecute a case falls within the functions of the investigation and prosecution agencies. The court is a judicial body, if it decides to prosecute a criminal case, it will affect the objectivity in the trial of that case. Therefore, it is necessary to consider abolishing the Court's right to prosecute cases and this needs to be done in accordance with the provisions of the Law on Promulgation of Legal Documents. The above amendment and abolition can be done immediately within the scope of the Law. Law on amending and supplementing a number of articles of the Law on Organization of People's Courts in 2014.

Third, regarding court regulations to verify, collect and supplement evidence in criminal cases. According to the provisions of Article 252 of the Criminal Procedure Code, to determine the objective truth of the case, the Court carries out one of the activities of verifying, collecting and supplementing evidence. Judicial practice shows that the above regulations are no longer appropriate. Because, in Clause 1, Article 102 of the Constitution, it is clearly stated that the People's Court is the judicial agency. Researching the provisions of the Criminal Procedure Code, author find that the Court's evidence collection activities prescribed from Clauses 1 to 5, Article 252 of the Criminal Procedure Code are specified in Article 253 (Receiving evidence, documents, and related objects) to the case), Article 284 (Requesting the Procuracy to supplement documents and evidence), Clause 1, Article 312 (Examination of physical evidence), Article 314 (On-site examination), Clause 4, Article 316 (Questioning the supervisor appraiser, property appraiser). In paragraph 4, clause 3 of Article 280, it is stipulated: “In case the Procuracy fails to supplement the issues requested by the Court and still maintains the prosecution decision, the Court shall proceed with the trial of the case”.

The process of collecting additional evidence has been carried out by the Investigation Agency and Procuracy according to strict order and procedures according to the provisions of law, if during the investigation and prosecution phase the Agency If the investigation and the Procuracy cannot supplement it, it will be very difficult for the Court to fully implement it (Except for a few cases such as the Higher Court requesting the Lower Court to further verify and clarify the evidence contained in the case) records when reviewing the judgment of the lower Court). At the same time, the Court's verification, collection, and supplementation of evidence in some cases also incurs litigation costs, affecting the performance of the Court's general tasks, shifting responsibilities between agencies conducting proceedings. Therefore, it is necessary to consider research on removing this regulation.

Fourth, regarding the time limit for resolving denunciations and crime reports, and the time limit for delivering investigation conclusions.

- Regulating the time limit for checking and verifying denunciations and information about crimes in the Criminal Procedure Code is necessary to enhance the responsibility of agencies, organizations and individuals in investigating and discovering crimes. Article 147 of the Criminal Procedure Code 2015 stipulates that the maximum time limit for resolving denunciations and information about crimes is 04 months. However, practice shows that the above regulation is not appropriate, especially denunciations and information about crimes. Corruption, economics, position, environment often have many complicated details that must be checked and verified at many locations, subjects are abroad, absent from their place of residence or need to request appraisal.Therefore, in order to handle denunciations and information about crimes effectively and not put pressure on the agencies conducting proceedings, it is necessary to increase this time limit to a maximum of 6 months for denunciations and information. Regarding crime, the petition for prosecution has many complicated details; There are foreign elements related to many countries and many fields, and must be inspected and verified at many locations.

- Regarding the time limit for delivering the investigation conclusion: To ensure the feasibility of stipulating the time limit for the investigation agency to hand over the investigation conclusion requesting prosecution or the investigation conclusion and deciding to suspend the investigation, decide suspend the case or decide to temporarily suspend the case for defendants who live far away or reside in mountainous provinces with difficult transportation. It is necessary to amend Article 232 of the 2015 Criminal Procedure Code in the direction that for these cases, The time limit may be extended but must not exceed 05 days from the date of issuance of the above decisions.

Fifth, the issue of handling material evidence according to the provisions of Point d, Clause 3, Article 106 of the Criminal Procedure Code.

According to the provisions of Point d, Clause 3, Article 106 of the Criminal Procedure Code: Evidence that is wild animals and exotic plants must be immediately handed over to the competent authority for handling according to the provisions of law. For this type of evidence, the agency conducting the proceedings does not have the authority to handle it, but the handling authority belongs to specialized agencies prescribed by law such as the Forest Ranger agency, Customs agency, and other agencies of Vietnam. Ministry of Agriculture and Rural Development..., therefore the law stipulates that after the assessment conclusion is reached, the prosecuting agency must immediately hand it over to the competent agency to handle evidence that is wild animals or exotic plants.

The question here is that if the agency conducting the proceedings then wants to conduct an asset valuation of those animals, how should they proceed. Meanwhile, animals released into the natural forest cannot be recovered and the lack of valuation has made it difficult to properly resolve the case. This is considered an inadequacy of point d, clause 3, Article 106 of the Criminal Procedure Code. Therefore, Point d, Clause 3, Article 106 of the Criminal Procedure Code needs to be amended in the direction of adding the phrase "valuation" to the law, accordingly, the law after being amended has the content: “Exhibits are wild animals or Exotic plants must be immediately handed over to the competent specialized management agency for handling according to the provisions of law after the conclusion of appraisal and valuation”.

References:

1. Constitution of the Socialist Republic of Vietnam 2013// URL: https://worldconstitutions.ru/?p=26  (date of application 23.04.2024)
2. Criminal Code of the Socialist Republic of Vietnam 2015// URL: https://www.policinglaw.info/assets/downloads/2015_Criminal_Code_of_Vietnam_  (date of application 23.04.2024)
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_(English_translation).pdf       (date of application 23.04.2024)
4. Criminal Procedure Code of the Socialist Republic of Vietnam 2015 г. // URL: https://www.wipo.int/wipolex/ru/legislation/details/21477  (date of application 23.04.2024)