guilty or innocent. The verdict is the expression of the will and attitude of the State towards the defendant's behavior and is guaranteed by the power of the State apparatus. When announcing the verdict, the Trial Panel does not make the verdict in the name of the Trial Panel or the Court agency, but in the name of the Socialist Republic of Vietnam. That is, the Court, in the name of the State, uses the power of the State to judge whether the accused is guilty or not, what crime and the appropriate penalty. The Court's decision on punishment must come from the interests of the nation, the people, the interests of the whole society as well as the legitimate rights of each citizen. Each verdict is strict, correct to the person, correct to the crime, reasonable, not only contributes to ensuring political security, social order and safety but also educates criminals to become useful citizens for society, helping the masses to raise their awareness of the law, have faith in justice, in the political regime and the leadership role of the Communist Party of Vietnam.
Criminal sanctions are the greatest and strongest coercive measures of the State against criminals, directly affecting the life, freedom, honor, property, identity, and reputation of citizens. The highest penalty that can be applied is to remove the criminal from social life (death penalty) and only the Court is the sole agency with the function of adjudication, with the right to make the final decision to determine the crime and punishment.
Second , the application of penalties in criminal trials by the People's Court is mainly conducted in public court.
From the time of receiving the case file until issuing the judgment and decision to execute the judgment, the Court conducts many criminal proceedings such as: Deciding on temporary detention, deciding to bring the case to trial... conducted by the presiding judge, Chief Justice, Deputy Chief Justice according to the provisions of Articles 38 and 39 of the 2003 Criminal Procedure Code, but the most important activity of criminal criminal proceedings at the Court is deciding on the crime and applying the penalty, which must be conducted in a public trial, except in special cases where the trial needs to keep State secrets, national customs and traditions, or to keep the secrets of the litigant at their legitimate request, the Court shall conduct a closed trial according to the provisions of Article 18 of the 2003 Criminal Procedure Code, but the verdict must be announced publicly.
Criminal trials are held solemnly, following strict procedures, completely publicly, under the direction of the presiding judge. All citizens aged 16 and over have the right to attend the trial. Media and press agencies have the right to attend and report on public trials. The verdict is sent to all participants in the proceedings, relevant agencies, and local authorities where the defendant resides.
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A criminal trial is the focus of resolving a criminal case. In the presence of a large number of people, witnesses, related persons, victims, lawyers, experts, etc., all documents and evidence collected during the investigation and prosecution process are examined, evaluated, examined, questioned, confronted, debated publicly, clarifying the details and contents of the case at the trial.
The defendant has the right to freely present his/her opinion on the prosecution's accusation, confront the victim... the lawyer is allowed to present evidence, viewpoints, and debate with the prosecutor maintaining the prosecution at the trial to protect the rights of his/her client (the lawyer can be the defendant's defender, the person protecting the rights of the victim, or the person with related rights and obligations).
At the trial, the Trial Panel listens to the debate between the lawyer and the prosecutor about the details of the case, questions and listens to the statements of the defendant, the victim, the witness, the relevant person, the expert, examines the evidence... to determine the truth of the case, reveal the signs of constituting the crime, the aggravating and mitigating circumstances, creating favorable conditions for the parties to present their views and opinions about the case.
After considering all the details, evidence, and contents of the case at the trial in an objective and comprehensive manner, the Trial Panel will deliberate and vote on whether the defendant is guilty or not guilty, if guilty, which crime, which provisions of the Penal Code to apply, specific penalties, and other legal responsibilities such as compensation, court costs, and additional penalties. The presiding judge will pronounce the verdict (announce the verdict) and declare the end of the trial.
The judgment is a general ADPL document and contains applicable decisions.
The penalty in particular is issued at the trial, it contains a synthesis of the legal value of the previous legal documents, as well as affirms the legality of those documents and of the procedural acts at the trial.
The application of punishment by the Trial Panel at the trial is the most important activity in the settlement of criminal cases by the Court, conducted in a careful, objective, public, democratic and fair manner, creating conditions for people to protect their legitimate rights and supervise the trial activities of the Court. The criminal trial is the place to demonstrate judicial civilization, democracy and transparency of judicial activities, ensuring justice, social fairness, and legitimate rights and interests of people. Therefore, the trial must strictly comply with the principles and procedures prescribed by the Criminal Procedure Code.
The process of applying punishment is that the Court must determine the crime of the defendant brought to trial, then decide to apply a type of punishment and choose a level of punishment commensurate with the nature and level of the defendant's crime. This is considered the central process, and also the final process of the Court's penalty application activity.
Third , the application of penalties in criminal trials by the Court must strictly comply with the procedural order prescribed by the Criminal Procedure Code.
The duty of the Court in resolving criminal cases is to try all crimes accurately and promptly, not to let criminals escape and not to wrongfully convict innocent people. Therefore, in the process of resolving criminal cases, the Court must strictly comply with the provisions of the Criminal Procedure Code.
On the other hand, due to the special importance of criminal law norms, which can directly affect basic human rights such as freedom, life, property, honor and dignity, etc., strict accuracy and full compliance with the procedures prescribed by law are required.
Strict compliance with the provisions of the Criminal Procedure Code is the basis and mandatory condition to ensure the application of penalties is accurate and objective. Therefore, the process of applying penalties by the Court must both correctly apply the provisions of the Criminal Procedure Code and the Criminal Procedure Code.
It is necessary to not only violate the law in terms of content, but also to correctly apply the legal norms on litigation to ensure the issuance of legal judgments, correct people, correct crimes and correct laws.
The people conducting the proceedings in the settlement of criminal cases of the People's Court according to the provisions of the Criminal Procedure Code include the Chief Justice, Deputy Chief Justice, Judges, Jurors and Court Secretaries. The Chief Justice, Deputy Chief Justice and Judges are selected and appointed according to strict procedures with strict standards to perform the regular task of settling and adjudicating all types of cases under the jurisdiction of the Court. Jurors are appointed or elected to represent the people in participating in the trial with the Judge. The Court Secretaries have duties according to the provisions of the Criminal Procedure Code and as assigned by the Chief Justice.
For the Chief Justice and Deputy Chief Justice, the duties and powers are stipulated in Article 38 of the 2003 Criminal Procedure Code, with the task of organizing the trial, assigning judges and jurors to resolve the trial, assigning secretaries to conduct proceedings for criminal cases. The Chief Justice has the right to decide to apply, change or cancel temporary detention measures; decide to handle evidence; decide to execute criminal sentences; decide to postpone the execution of prison sentences; decide to temporarily suspend the execution of prison sentences; decide to erase criminal records...
For Judges, the duties and powers are stipulated in Article 39 of the 2003 Criminal Procedure Code. When participating in a trial, Judges have the following duties and powers: "a, Decide to apply, change or cancel preventive measures according to the provisions of this Code. b, Decide to return the case file for further investigation. c, Decide to bring the case to trial; decide to suspend or temporarily suspend the case..."[45].
For the Jury, the duties and powers stipulated in Article 40 of the 2003 Criminal Procedure Code are as members of the Trial Panel, the Jury has the same duties as the Judge, however the Jury only has the right to conduct activities at the trial.
For the Secretary, the duties are stipulated in Article 41 of the 2003 Criminal Procedure Code. The Secretary is assigned by the Chief Justice to participate in a number of activities at the trial, mainly recording the minutes of the trial. The Secretary does not have the right to make decisions or participate in voting.
decide the decisions of the Court.
When applying penalties in court, the litigants are required by procedural law to be impartial, objective, and not related to the case. Judges and People's Assessors are independent and only obey the law. Trial activities are regulated in the Criminal Procedure Code, including the trial preparation stage and the criminal trial. Trial preparation is the stage where the Judge studies the case file and considers the conditions for opening the trial. The trial is the stage where the Court determines the crime and decides on the penalty, which is conducted publicly with all litigants, participants in the trial, and attendees at the trial with strict procedural procedures to determine whether the defendant is guilty or not, and if guilty, what crime, and the appropriate penalty.
Normally, both formal and substantive laws are issued in a legal document, but the application of penalties by the Court in the settlement of criminal cases is regulated by two codes, the Penal Code and the Criminal Procedure Code, directly issued by the National Assembly, which have high legality. Article 1 of the Criminal Procedure Code stipulates: "The Criminal Procedure Code stipulates the order and procedures for initiating, investigating, prosecuting, trying and executing criminal sentences; functions, tasks, powers..." [45].
Like the ADPL activities of the Investigation Agency and the People's Procuracy, the ADPL activities in resolving criminal cases of the Court must ensure strictness according to the provisions of the law. Strictness is expressed in two aspects: First, strictness in the form of application, or in other words, strictness in the order of procedures and authority; Second, strictness in the content of application, including the application of the content of the Criminal Procedure Code and the content of the Penal Code.
The strictness of form is shown in all procedural acts of the litigant must follow the provisions of the Criminal Procedure Code, such as at the trial, the Judge must ask mandatory questions, perform mandatory acts in a mandatory logical order. For example: the presiding judge must explain the rights and obligations to the participants in the proceedings...
The strictness of content is shown in that each applicable law requires the accuracy of the clauses and points in accordance with the content to be resolved, without any application of
analogy as well as inference from the application of the positive legal system.
Criminal ADPL activities require strict requirements from the application process to the application content, stemming from the severity of criminal law sanctions, from the requirement to protect the legitimate rights and interests of citizens, political security, and social order and safety.
The strictness of the application of penalties by the People's Court is first of all aimed at determining the entire truth of the case, ensuring the correct application of penalties, ensuring the rights of participants in the proceedings, avoiding abuse of power by the agencies conducting the proceedings, being the legal basis for the agencies conducting the proceedings, participants in the proceedings to exercise their rights and obligations, and at the same time being the basis for agencies, organizations, and citizens to supervise the proceedings and exercise the rights to complain and denounce as prescribed in Chapter XXXV of the 2003 Criminal Procedure Code.
Fourth , the application of punishment in criminal trials by the Court is the process of individualizing criminal law norms for each defendant, especially the provisions of criminal law on punishment and decision on punishment.
The essence of the Court's penalty application activity is through the trial to determine the crime as well as apply specific penalties to each defendant. Criminal law norms are specifically applied to each defendant in specific cases.
Based on the evidence collected during the investigation, prosecution and the results of questioning and debate at the trial, the Trial Panel must base on the legal signs constituting the crime prescribed in the Penal Code to determine whether the defendant has committed the crime as prosecuted by the People's Procuracy or not? If guilty, what crime? Which article of the Penal Code is prescribed? Which aggravating and mitigating circumstances of criminal responsibility belong to Articles 48 and 49 of the Penal Code? The application of criminal law norms by the Trial Panel at the trial is the main content of the trial activity and also the main activity of the People's Court in resolving criminal cases. In order to have a basis for applying punishment, the Trial Panel must consider and evaluate the evidence collected during the investigation phase as well as the statements of the defendants.
How do the participants in the proceedings at the trial contradict or agree with each other? Analyze and synthesize all the details of the case, clarify the truth of the case. Require high thinking ability of each member of the Trial Council, affirm whether the defendant has enough legal signs to constitute a crime? What crime constitutes? Select the criminal law norms in the Penal Code applicable to the convicted person, declare the defendant not guilty or the crime according to the provisions of the Penal Code for each specific defendant.
After determining the crime, the Trial Panel must decide on the penalty, within the range prescribed by the law for that crime. Because criminal liability is the inevitable legal consequence of committing a crime. In principle, the person who commits the crime must bear criminal liability. However, when individualizing criminal liability, the Court may consider exempting criminal liability according to Article 25 of the Penal Code.
The trial panel may not decide on a penalty higher than the penalty prescribed in the law for the crime committed by the defendant and may only decide on a penalty lower than the penalty range when there are at least two mitigating circumstances prescribed in Article 46 of the Penal Code and may only decide on a penalty according to the next lower range in accordance with the provisions of Article 47 of the Penal Code. The trial panel shall base on the penalty range, aggravating and mitigating circumstances, the nature and level of danger of the crime, and the personality of the offender to choose (vote) to decide to exempt the defendant from criminal liability or apply an appropriate penalty. If there are many defendants in the case, when deciding on the penalty, the role of each defendant as an accomplice must also be considered in order to have a corresponding penalty for each defendant. If the defendant commits multiple crimes (not an aggravating circumstance) or commits multiple crimes in the same case or multiple cases, the Trial Panel must decide to combine the penalties and sentences according to the provisions of Articles 50 and 51 of the 1999 Penal Code.
The main penalty is one of the types of penalties prescribed in the system of penalties of the Penal Code such as: Warning, fine, fixed-term imprisonment, life imprisonment, death penalty... (Article 30 of the 1999 Penal Code). Each criminal act is only subject to one main penalty but may be subject to one or more additional penalties.
supplementary, other judicial measures.
In addition to deciding on criminal liability for each defendant, the Trial Panel must also base on legal provisions to resolve issues related to the case, such as: civil compensation, court fees, handling of evidence...
Even though the defendant is guilty, the Trial Panel cannot arbitrarily apply the penalty but can only apply the penalty according to the provisions of the 1999 Penal Code.
A criminal judgment is an ADPL document of the Trial Council. In addition to its own characteristics, it has the common characteristics of an ADPL document (an individual document), such as being applied only once, to specific defendants... It is strictly followed by agencies, organizations, and individuals, and is guaranteed to be implemented by the coercive power of the state.
According to the provisions of the 1999 Penal Code, criminal liability is a legal liability determined only for the individual who committed the crime, not for the agency or organization. For example, defendant A is the director of enterprise B, and in the name of the director of the organization, directs employees to commit smuggling, then A is only prosecuted and tried in his individual capacity.
Fifth, the application of penalties is highly discretionary.
This is reflected in the fact that applying punishment is a scientific activity, which most centrally demonstrates the logical thinking process based on the reality of the case and the provisions of the law to apply to specific cases. The provisions of criminal law on punishment, penalty framework and penalty level are relatively flexible, a penalty framework applied to a criminal is often expressed at the lowest and highest levels. Therefore, when applying punishment, the trial panel needs to study each specific case, of each specific defendant, in order to be able to apply a penalty level through the principle of individualizing the penalty for the criminal.
In addition, discretion is also shown in the fact that the application of penalties has a very wide scope, not only including the application of main penalties and additional penalties but also including the application of exemption from criminal liability, exemption from penalties, etc.