Application of criminal law of the People's Court through practice in Thanh Hoa province

actual occurrence; compare practical basis with legal basis; select legal norms with assumptions appropriate to actual situations; issue ADPL documents; organize implementation and inspect the implementation of such ADPL documents in practice.

Criminal ADPL of the People's Court is carried out through the litigants (judges, jurors, chief justices, deputy chief justices) on the basis of compliance with strict regulations on order and procedures of criminal procedural law and based on documents and evidence collected during the process of determining the truth of the case, in order to apply criminal law norms to a specific criminal case, to a specific defendant when determining the defendant's guilt to decide on criminal liability and civil liability, if any. Although many specific criminal ADPL activities are carried out, the main content of the Court's criminal ADPL activities is to convict the defendant and impose a sentence if the defendant is guilty.

Based on the criteria for the type of legal norms applied in criminal case settlement activities, ADPL can be divided into two types:

+ ADPL content (criminal law);

+ ADPL formality (criminal procedural law).

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Based on the procedural criteria throughout the criminal case resolution process, ADPL can be divided into the following stages:

+ ADPL in first instance criminal proceedings;

+ ADPL in criminal appeal proceedings;

+ ADPL in the procedure for enforcing judgments and decisions of the Court.

Based on the segmentation criteria in the criminal case resolution process, ADPL can be divided into stages:

+ ADPL trial preparation stage;

+ ADPL during the trial stage;

+ ADPL after the trial stage.

The division of ADPL in criminal case settlement activities in general is relative and only meaningful in scientific research. In reality, the forms and types of ADPL in the process of settling criminal cases are often intertwined, for example, in the first instance or appeal stage, there are both substantive ADPL and formal ADPL. It can be said that there are many different segmented concepts in criminal case settlement, but which concept or segment depends on the research perspective, but in general, the ADPL activities of the People's Court are highly specific, not abstract but realistic through practical legal acts and each ADPL document.

Although there are many approaches to the ADPL stages in the settlement of criminal cases by the People's Court, such as the approach according to procedural order, the approach according to applicable authority, but in general, those approaches all have certain limitations. In fact, the ADPL stages in the settlement of criminal cases by the People's Court are often combined according to many criteria, commonly divided according to the stages of case settlement, into the stages of first instance trial, appeal, decision to execute the judgment, review, retrial of judgments that have come into legal effect. To carry out each of those stages, there is usually a preparation stage before proceeding with the settlement.

1.2.3.1. First instance trial stage

Preparatory stage for first instance trial:

The trial preparation stage is the time from when the Court receives the case file (accepts the case) until before the opening date of the trial. During this stage, the judge assigned to preside over the trial must study the case file and prepare the necessary conditions to bring the case to trial within the time limit prescribed by law, if it is not a case of having to return the file for further investigation, suspend or temporarily suspend the case.

The success of a trial depends largely on the preparation before the trial. The jury studies the entire case file,

anticipate situations that may occur at the trial, prepare the content for questioning and debate at the trial, make a decision to bring the case to trial, request the leader to decide to apply or change preventive measures, summonses, invitations to participants in the proceedings..., prepare necessary work for opening the trial.

Studying the case file is not only to make one of the decisions as prescribed in Clause 2, Article 176 of the 2003 Criminal Procedure Code, but also to detect procedural violations during the investigation and prosecution stages, the details of the case that need to be clarified, and are also important documents used in the trial process. When studying the case file, the presiding judge must first consider whether the case is under the jurisdiction of the Court he is handling? Are the procedural procedures during the investigation and prosecution in accordance with the law? Are the evidence documents of the case collected in accordance with the prescribed procedural order? This is the process by which the judge checks the objectivity and legality of the source of evidence, checks whether sufficient evidence has been collected, and how do the investigation conclusions and indictments reflect the content of the case? Documents on the prosecution of the case, the prosecution of the accused, the statements of the accused, the victim, the witnesses, the evidence... are consistent or contradictory, focusing on the study of the objective, subjective, object, and subject aspects, considering whether a crime actually occurred or not? What are the signs constituting a specific type of crime? Did the accused commit the acts as charged in the indictment? The aggravating and mitigating circumstances are reflected in the file. Thereby, the judge can grasp the content of the case, understand the nature of the case, have the necessary information and anticipate situations at the trial.

After examining the case file, the judge must answer the question of whether the case has sufficient grounds to be brought to trial. If the judge finds that the case has sufficient grounds to be brought to trial, he shall issue a decision to bring the case to trial, plan the organization of the trial and carry out the necessary work to open the trial, prepare the issues that need to be clarified at the trial, identify the participants in the proceedings at the trial, invite or summon them to attend, and decide to bring the case.

The trial must be delivered to the defendant at least 10 days before the trial, and a number of complaints and requests of the participants in the proceedings must be resolved in preparation for the trial.

Although it is not the stage that decides important issues of the case, the trial preparation stage requires the Trial Panel, especially the presiding judge, to invest time and intelligence in carefully studying the case file, helping the Trial Panel to be more proactive in court as well as well prepare the necessary conditions to organize the trial to achieve high results.

During the trial at the first instance court:

This is the most important stage in the criminal ADPL of the People's Court. The content of the case is clarified at the trial, publicly examining documents and evidence collected during the investigation and prosecution as well as new evidence at the trial. This stage includes the following steps: Procedures for starting the trial; questioning at the trial; debate at the trial; deliberation and sentencing.

The procedure for starting the trial, the presiding judge declares the trial open, checks the presence of the participants in the proceedings, checks the identity of the defendant such as full name, date of birth, parents' names, place of residence, occupation, educational level, criminal record, date of detention, date of receipt of the indictment and decision to bring the case to trial, if the defendant's testimony is different from the documents in the file, it must be clarified why it is different. Along with checking the defendant's identity, the Trial Panel must check and determine the status of other participants in the proceedings, such as the victim, plaintiff, civil defendant, person with rights and obligations related to the case, legal representative, witness, lawyer protecting the rights of the defendant, lawyer protecting the rights of the victim, expert, interpreter...

The presiding judge must explain the rights and obligations to the participants in the proceedings and announce the court rules so that the participants and attendees can exercise their rights and obligations. In case there are people

In case of request to postpone the trial, summon additional witnesses, or change the person conducting the proceedings, the Trial Panel must consider and decide immediately at the trial.

Procedure for questioning at trial:

Questioning is an important step in the trial process, which is the public questioning of the defendant and other participants in the proceedings at the trial, in the presence and witness of all participants in the proceedings, conducting the proceedings and those attending the trial, in order to examine the evidence, clarify all details of the case, on that basis the Trial Panel determines whether a crime has occurred or not, whether the defendant has committed the crime as prosecuted by the Procuracy or not. Therefore, when questioning at the trial, the Trial Panel must rely on the elements constituting the crime, to ask questions to the defendant and other participants in the proceedings, in order to clearly identify the objective, subjective, object and subject aspects of the crime.

- The objective aspect of a crime is manifested externally through socially dangerous acts, socially dangerous consequences, the causal relationship between the act and socially dangerous consequences, as well as other objective factors such as: Time, location, conditions, circumstances, tools, means of committing the crime... are considered mandatory signs for determining a crime. Socially dangerous acts are specific human conduct manifested in the objective world in certain forms (action or inaction), illegally violating or threatening to violate social relations protected by criminal law. Any specific crime must have external manifestations; if there are no external manifestations, there are no other elements of the crime and therefore no crime has occurred.

- The object of crime is the social relationship protected by criminal law and violated by crime.

- The subject of a crime is a person with criminal responsibility, of legal age and has committed a specific crime.

- The subjective aspect of a crime is the internal psychological manifestations of the crime, including fault, purpose, and motive, in which fault is an indispensable sign of any criminal component. A person who commits an act that causes damage to society is considered guilty if that act is the result of their own choice while having sufficient objective and subjective conditions to choose and perform other behaviors in accordance with the requirements of society.

According to Vietnamese criminal law, any criminal act, whether less serious, serious, very serious or especially serious, is a unity between the objective and subjective aspects, between external manifestations and internal psychological relationships, and is a specific human activity, violating or aiming to violate certain social relationships. The unity of these four elements is a structural form, fully expressing the political and social content of the crime. Each element only has independent meaning when studying it theoretically. In reality, each element only exists as a constituent part of the unified entity that is the crime. The absence of any element does not constitute a crime. All criminal cases of a certain type of crime have similar content manifestations in all four elements. Those similar manifestations are considered characteristic signs of a certain type of crime, called the crime's constituents.

Thus, "crime composition is a synthesis of common signs that are characteristic of a specific type of crime prescribed in criminal law" [63, p. 53].

Therefore, at the criminal trial, the first and most important task of the Trial Panel is to determine the crime of each defendant, to determine whether the socially dangerous act committed by the defendant is consistent with the legal model of a crime in the Penal Code or not? To do that, the Trial Panel must grasp the legal signs prescribed in the general part as well as the legal signs for each specific type of crime, to ask questions to consider whether the actual act committed by the defendant has sufficient signs of constituting a crime.

No, what crime does it constitute? Circumstances for framing? How many mitigating circumstances are included in Article 46 of the 1999 Penal Code, how many aggravating circumstances are included in Article 48 of the 1999 Penal Code. On the other hand, in reality, a crime can be committed by one person or by many people, so the Trial Panel at the trial must clarify whether there is complicity, the role of complicity of each defendant to have a basis to determine the criminal responsibility of each defendant. Or cases of intentional crimes can stop at a certain stage, such as: The stage of preparing to commit a crime - Article 17 of the 1999 Penal Code, attempted crime - Article 18 of the 1999 Penal Code, voluntarily stopping halfway through committing a crime - Article 19 of the 1999 Penal Code, at the trial, the Trial Panel must ask questions to determine at what stage the defendant stopped committing the crime? For objective or subjective reasons? Also at the trial, the Trial Panel must consider whether the defendant's socially dangerous behavior falls under the category of legitimate self-defense - Article 15 of the 1999 Penal Code, or an urgent situation - Article 16 of the 1999 Penal Code? Determine the age of the defendant, the victim, and the criminal responsibility capacity of each defendant. Whether the fault is unintentional or intentional, indirect or direct intentional, whether there is mixed fault or not (whether the victim is at fault or not). The trial process always requires each member of the Trial Panel to have sharp thinking and reasoning, have a method of questioning, high expertise, and extensive social knowledge to be able to accurately determine the defendant's crime.

The trial must be conducted continuously from the opening until the verdict is announced, except for breaks and time needed for deliberation. The trial is conducted directly orally in public court with the full presence of the litigant, participants in the proceedings and those attending the trial. The Trial Panel must directly determine the circumstances of the case by asking and listening to the opinions of the defendant, the victim, the witnesses, examining the evidence... and may only base itself on the evidence publicly examined at the trial to convict the defendant. Therefore, the Trial Panel must consider all evidence in the file as well as new evidence presented at the trial in a public manner,

objective, comprehensive, not relying too much on investigation conclusions or indictments to determine the truth of the case.

According to the provisions of the 2003 Criminal Procedure Code, the responsibility to prove the crime belongs to the agency conducting the proceedings. Therefore, the questioning and debate at the trial are mainly aimed at proving whether the defendant is guilty or not, and if guilty, which specific crime in the Criminal Procedure Code. The questioning of the Trial Panel must demonstrate objectivity, democracy, respect for the rights and legitimate interests of the participants in the proceedings, and only ask questions related to the case. When questioning, the presiding judge is the one who asks first, then the jurors, then the prosecutor, the defense attorney, and the person protecting the rights and legitimate interests of the litigant. Usually, the presiding judge only asks questions that raise issues of the case that need to be clarified, so that the lawyers and prosecutors can debate with each other. The Trial Panel acts as an arbitrator, listening to the arguments of both sides about the evidence, the arguments for conviction and exoneration, as well as listening to the opinions of other participants in the proceedings. To analyze, synthesize, and evaluate the accusation or exoneration to be more convincing.

In essence, debate at trial is the process of rubbing viewpoints and arguments about the case between the prosecutor maintaining the right to prosecute with the defendant, the lawyer defending the defendant's rights and other participants in the proceedings... to determine the objective truth of the case. Therefore, whether the trial of a criminal case is democratic and objective or not, whether the verdict is correct for the person, the crime, the law, and highly convincing or not depends largely on the results of the debate at trial. Resolution No. 08/NQ-TW of the Politburo affirms:

Improve the quality of prosecution by prosecutors in court, ensure democratic debate with lawyers, defenders and other participants in the proceedings... When adjudicating, the Court must ensure that all citizens are equal before the law, truly democratic and objective, Judges and People's Assessors only obey the law; The Court's decision must be based mainly on the results of the debate.

Application of criminal law of the People's Court through practice in Thanh Hoa province - 6

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