Criminal appeal from the practice of Binh Phuoc province

Judicial reform in the process of international integration; regulations of Vietnamese law on the functions of the people's procuracy.

5.2 Research methods

The thesis uses the method of collecting, statistics, comparing - contrasting, and researching, analyzing, synthesizing relevant documents, summary reports, thematic reports, files of protested cases; and consulting with people doing practical work.

6. Theoretical and practical significance of the thesis

The thesis will systematically study issues surrounding KNPT, expected to achieve the following results:

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6.1 Theoretical significance: contributing to clarifying the legal nature and shortcomings of the law; providing theoretical and practical basis on criminal procedure according to Vietnamese criminal procedure law, proposing solutions to improve some theoretical issues on criminal procedure.

6.2 Practical significance : Revealing achievements, limitations, drawing lessons, finding solutions, recommendations to improve, enhance the quantity, quality and effectiveness of criminal investigation work of the People's Procuracy at two levels of Binh Phuoc province.

The topic can be used as reference material for research, teaching and training on criminal procedure law.

7. Structure of the thesis

In addition to the introduction, conclusion and list of references, the content of the thesis includes 3 chapters:

Chapter 1: Theoretical issues on criminal appeal

Chapter 2: Provisions of Vietnamese criminal procedure law on criminal appeal

Chapter 3: Current situation and solutions to improve the effectiveness of criminal appeals in Binh Phuoc province

Chapter 1

THEORETICAL ISSUES ON CRIMINAL APPEAL

1.1. General issues on appeal in criminal proceedings

1.1.1 Concept of criminal appeal

Our country's Law on Criminal Procedure has not yet defined what criminal liability is. The concept of criminal liability is limited to scientific research works, so there is no unified and precise understanding of the concept of criminal liability.

According to the author, Master Dinh Van Que: " A protest under the criminal appeal procedure is a document issued by the Procuracy requesting the Court of Appeal to retry a case that the Court of First Instance at the same level or the directly lower level has tried, but is deemed illegal" [45, p. 235]. This concept of the author has shown that the form of the appeal is "document", but has not stated the nature and content of the appeal; pointed out that the subject of the appeal is "the Supreme People's Procuracy" but is not completely accurate, because according to current regulations, the Supreme People's Procuracy is not granted the right to appeal; has not indicated what the subject of the appeal is? It only states "the case that the Court of First Instance at the same level or the directly lower level has tried". Because the trial of the case by the Court of First Instance does not necessarily have a trial result, it can postpone or suspend the trial, temporarily suspend the settlement of the case. On the contrary, there are cases where the Court can temporarily suspend or suspend without having to try. Meanwhile, the Criminal Procedure Code stipulates that only first-instance judgments or decisions that have not yet come into legal effect can be appealed under the appellate procedure, so the concept of "having been tried" is not entirely accurate. Likewise, the purpose of "requesting a retrial" is not accurate in the case of appealing a first-instance decision, in which the Court of Appeal does not have to open a trial but only opens a meeting to consider the decision of the appeal. This concept also does not indicate the nature and basic content of the appeal as a right, expressing the opposition and disagreement of the Procuracy with the judgment expressed in the first-instance judgment or decision of the Court of First Instance. In addition, this concept also only states the reasons and grounds for appeal in a general and vague manner, which can easily be understood as emotional "considered illegal".

According to Dr. Le Thanh Duong: “ Appeal protest is the legal power assigned by the State to the People's Procuracy to protest against first-instance judgments and decisions that have not yet taken legal effect by the Court of the same level and the immediate lower level when serious violations of the law are discovered, to request the immediate higher-level Court to re-try according to the appeal procedure to ensure a trial that is lawful, strict and timely [18]. This concept of the author has pointed out the nature and connotation of the appeal as "legal power" and not another kind of power, the object of the appeal is "First-instance judgments and decisions that have not yet taken legal effect by the Court", the basis for the appeal is the first-instance judgment or decision that "seriously violates the law". But it is not clear which area of litigation it is, the subject is not precise, and the author Dinh Van Que has not pointed out the basic connotation of the appeal but also stated it in a general and vague way; The repetition of the term that needs to be conceptualized as “appeal” makes it difficult for readers to recognize the nature and connotation of the concept. The use of the conjunction “and” in this concept is not entirely accurate, leading to the reader mistakenly thinking that the competent People’s Procuracy has the right to appeal simultaneously against the first-instance judgment and decision of the Court of the same level and the lower level.

According to co-authors Le Van Cam and Nguyen Thi Thu Ha: “ Appeal protest is the issuance by the Procuracy of the same level (or the immediate superior) of a document expressing disagreement with the judgment (decision) that has not yet come into legal effect of the Court of the same level (or the immediate subordinate) that has tried the case in the first instance procedure, and at the same time requests the Court of the same level (or the immediate superior) to re-try the case in the appeal procedure when there is one of the grounds prescribed by the Criminal Procedure Code” [11, p. 26] [20, p. 19]. This concept of the co-author has shown that the form of the appeal is “Document”, the content of the appeal is “expressing disagreement”; the subject of the appeal is “the judgment (decision) that has not yet come into legal effect of the Court of the same level (or the immediate subordinate)”, but as author Dinh Van Que said, it is not really accurate when it is said that it is “the judgment (decision) … that has tried the case”; The subject of the KNPT is “the Procuracy of the same level (or the immediate superior level)” specifically, without any confusion. However, in terms of the nature of the KNPT, the co-author lacks the affirmation of legal power, which area of litigation? and only states generally in the phrase “the… issuance” which is not really accurate.

Prosecution work textbook 2019 of Hanoi University of Procuracy: “ Appeal according to the appeal procedure is one of the activities of practicing the right to prosecute of the People's Procuracy in the stage of criminal trial, carried out against first-instance judgments and decisions that have not yet come into legal effect but contain errors in the assessment of evidence or application of the law [87, p. 76]. This concept only states a part of the nature of the right to appeal, which is the activity of judicial review, does not show the nature of the criminal judgment of the People's Procuracy but has pointed out that the subject of appeal is the first-instance judgment and decision of the Court that has not yet come into legal effect; stating the basis for appeal is "there is an error in the assessment of evidence or application of the law", this is a violation and is also not suitable for practice. Because not all first-instance judgments and decisions that have errors in assessing evidence or applying the law are protested by the People's Procuracy at the appellate level. In practice, only first-instance judgments and decisions that violate the law in content, are seriously wrong, and affect the legitimate rights and interests of the defendant, the victim, and the legitimate rights and interests of other participants in the proceedings will be protested by the People's Procuracy at the appellate level, and such protest will be accepted by the appellate panel. If the first-instance judgment or decision violates the law but is not serious, it will not be accepted by the appellate panel.

From their own perspective and viewpoint, each author and legal researcher has put forward a separate concept of “criminal appeal” such as criminal appeal, appeal according to criminal appeal procedure. The concepts put forward by the authors all have reasonable points, unreasonable points, and lack of accuracy.

The author of the thesis believes that before introducing the concept of criminal KNPT, it is necessary to understand the concept of "protest"? What is "appeal" and what is "criminal case"? According to the Vietnamese Dictionary, the term "protest" is to express an opinion against a decision [43, p894]. According to the Legal Dictionary of the Institute of Legal Science (BTP), "protest" is the right that the law prescribes for the People's Procuracy and competent persons to issue a written protest, suspending the validity of the Court's judgment in the judgment or decision that has been declared for retrial according to the procedure of appeal, review or retrial in order to make the case be tried accurately, objectively and legally.

law [91, p378]. According to Vietnamese law, the right to appeal is granted by the state to the competent persons of both the Court and the Procuracy. However, the competent persons of the Court only have the right to appeal in the field of judicial proceedings including criminal proceedings, civil proceedings, and administrative criminal proceedings. That is the right to appeal to the Supreme People's Court, to retrial the judgments and decisions of the lower courts that have come into legal effect.

For the prosecution sector, the right to appeal is granted by the State more broadly, not only in the field of judicial proceedings but also in other areas of judicial activities such as temporary detention, temporary detention, civil and criminal judgment enforcement, settlement of complaints and denunciations, etc. In judicial proceedings, the competent persons of the Procuracy are not only granted the right to appeal for cassation and retrial of judgments and decisions of lower courts that have come into legal effect, but are also granted the right to appeal against first-instance judgments and decisions that have not come into legal effect. Thus, the right to appeal is only exercised by competent persons of the Procuracy to express disagreement with first-instance judgments and decisions that have not come into legal effect.

According to the Vietnamese Dictionary, “ appeal” is the re-trial of cases brought by lower courts [43, p1087]. According to the Law Dictionary, “appeal” is the act of a higher court directly reviewing first-instance judgments or decisions that have not yet taken legal effect, have been appealed or protested in order to re-examine the legality and basis of the first-instance judgments and decisions, correct mistakes and violations of the first-instance court, and ensure the consistent application of the law. Judgments and decisions of the Court of Appeal take legal effect immediately after the verdict is pronounced [91, p404]. “Criminal case ” is a case of law violation with signs of a crime as prescribed in the Penal Code for which the investigation agency has issued an order to initiate criminal proceedings to conduct investigation, prosecution, and trial according to the procedures prescribed in the Criminal Procedure Code[75].

Through studying legal regulations and scientists' viewpoints, when approaching criminal proceedings from the form to the nature, characteristics, role and significance of criminal proceedings, the author presents a scientific viewpoint on criminal proceedings and criminal proceedings as follows:

“ Appeal protest is the exclusive legal power of the Procuracy, exercised by a competent person in writing, expressing disagreement with serious legal violations of the first-instance judgment or decision that has not yet taken legal effect by the Court of the same level or the directly lower level, requesting the directly higher-level Court to re-settle according to the appeal procedure”.

“ Criminal appeal is the exclusive legal power of the Procuracy, exercised by a competent person in writing, expressing disagreement with serious legal violations of the first-instance criminal judgment or decision that has not yet taken legal effect by the Court of the same level or the directly lower level, requesting the directly higher Court to re-settle the case according to the appeal procedure .”

1.1.2 Characteristics of criminal appeals

- Appeal is a legal power that the state only grants to the People's Procuracy.

Criminal judgment is the only legal power that the State only grants to the People's Procuracy. In the system of agencies exercising judicial power, the People's Court is the agency that represents the State, performs the adjudication function, and has the duty to protect justice, protect human rights, civil rights, protect the interests of the State, and the legitimate rights and interests of organizations and individuals. However, the adjudication of the Court is an objective cognitive activity, not in all cases the Court makes the right judgment, but there may be serious mistakes that, if not detected and corrected, can seriously affect the rights and interests of the defendant and the participants in the proceedings. Therefore, in order to "control" and restrain the power of the Court in issuing judgments and decisions, the State assigns the function of inspecting and supervising this activity to the People's Procuracy, to ensure that the trial process is fair and in accordance with the law. On the other hand, the Procuracy is the agency with the function of prosecuting the defendant before the Court to convict (based on the law), so in order to perform its function well, the Procuracy must have the right to object to the judgments and decisions of the Court at first instance that seriously violate the law, in order to request the higher Court to review the basis and legality of those judgments and decisions, in order to correct and remedy the mistakes that the first instance court has committed. Therefore, by exercising its right to object, the Procuracy can ensure

. The right to protest is stated in Clause 3, Article 107 of the 2013 Constitution as protecting the law, protecting human rights, civil rights, protecting the socialist regime, protecting the interests of the State, and the legitimate rights and interests of organizations and individuals, contributing to ensuring that the law is strictly and uniformly enforced [54] . However, not all levels of the Procuracy are granted the right to protest, but only the Procuracy of the same level or the Procuracy of the same territory directly superior to the Procuracy of the same territory of the Court has the right to protest. The provision that the Procuracy of the same territory and the Procuracy of the same territory directly superior to the Procuracy of the same territory of the Court have the right to protest is to "make the trial more cautious, accurate and lawful, and to limit possible mistakes in determining the facts and applying the law" [10] .

In addition to the Procuracy, the defendant, and the participants in the proceedings are also granted the right by the State to object to the Court's judgment. However, there is a difference between the Procuracy's appeal and the defendant's or the participants in the proceedings. The Procuracy's appeal is of state power, but the appeal is not. The subject exercising the right to appeal can be the defendant or the participants in the proceedings. As for the appeal, the Procuracy is the only state agency that can exercise it. The subject exercising the right to appeal is also different from the subject exercising the right to protest against the judgment of the People's Procuracy at the same level and the People's Procuracy at the level directly above the Court that issued the judgment or decision of first instance (can be the Chief Prosecutor or Deputy Chief Prosecutor), while the subject with the right to protest against the judgment of the People's Procuracy belongs to the head of the Court and the High-level or Supreme People's Procuracy (Chief Justice or Chief Prosecutor of the High-level People's Procuracy or higher), the subject with the right to protest against the retrial belongs to the head of the High-level People's Procuracy or higher. Thus, only the People's Procuracy has the right to prosecute, while the People's Court does not have this right.

- Appeal is a special and most important tool of the Procuracy.

When performing the functions of THQCT and supervising judicial activities, the People's Procuracy has many powers such as request, proposal, recommendation, and protest. Among the above powers, the right to protest against judgments and decisions is the most important power, with the highest legal value, temporarily suspending the enforcement of the judgment of the sole agency representing the state.

When performing its functions, if the People's Procuracy finds that the judgment or decision of the Court of First Instance has seriously violated the law on proceedings or content, seriously infringing upon the legitimate rights and interests of the State, organizations and individuals participating in the proceedings, the People's Procuracy has the responsibility to request the higher-level Court to directly resolve the case by exercising the right to appeal. Through this, the People's Procuracy protects its prosecution viewpoint, while ensuring that the judgment or decision of the Court is issued accurately, strictly, to the right person, to the right crime, and in accordance with the provisions of the law. This is both the right and the responsibility of the People's Procuracy, through which the People's Procuracy performs its functions well, the higher-level Court re-examines the basis and legality of the judgment or decision of the lower-level Court, promptly corrects the violations of the lower-level Court (if any), and ensures that the judgment or decision is enforced in accordance with the provisions.

- The appeal is the basis for the case to be retried at the appellate level.

The appellate trial is the second level of trial, but it does not mean that every case must go through two levels of trial. A criminal case can only be tried at the appellate level when there is an appeal or protest against the first-instance judgment or decision that has not yet come into legal effect. When there is a KNPT, the immediate superior court must open an appellate trial [5, p. 26]. However, not every criminal case that is KNPT will have an appellate trial procedure, it requires that the KNPT must be legal for the second level of trial, the appellate trial, to arise.

Criminal appeals help the immediate superior court have the opportunity to re-examine the basis and legality of the first-instance judgment and decision, ensuring that the first-instance judgment is in accordance with regulations. Thereby, contributing to protecting the legitimate rights and interests of the state, society and citizens. When the People's Procuracy appeals, it forces the superior court to directly open an appeal hearing to re-try the case. The legal consequences of appeals are parts of the first-instance judgment or decision that have not been enforced (except in some cases prescribed by law).

1.1.3 Meaning of appeal

Political significance :

When establishing the Procuracy, the Party and the State assigned the Procuracy to perform two very important functions, which are to supervise compliance with the law and the function of

Criminal appeal from the practice of Binh Phuoc province - 2

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