Injustices and mistakes in criminal proceedings from the perspective of judicial reform in our country today (People's Court magazine, No. 1/2010) by author Ho Si Son; 4) The need to amend and supplement the content of the presence of the defendant at the appeal hearing (People's Court magazine, No. 11/2010) by author Bui Thi Nghia; 5) Some opinions on people being detained, imprisoned, and people serving prison sentences applying for marriage (People's Court magazine, No. 10/2010) by author Tran Ngoc Tu; 6) Applying, changing, and canceling preventive measures in the first-instance trial stage of criminal cases (People's Court magazine, No. 5/2009) by author Mai Bo; 7) International standards on ensuring human rights in criminal proceedings (Procuracy magazine, No. 13/2006) by author Tuong Duy Kien; 8) Lawyers' rights during the investigation phase of criminal cases - limitations and shortcomings in practical application (People's Court magazine, No. 4/2009) by Vu Huy Khanh...
Next, the provisions on the legal status of the accused are also mentioned and analyzed in a number of textbooks and reference books such as: Textbook of Vietnamese Criminal Procedure Law (National University Publishing House, 2001) edited by Dr. Nguyen Ngoc Chi; Textbook of Vietnamese Criminal Procedure Law (People's Police Publishing House, 2010) of Hanoi Law University edited by Associate Professor Dr. Hoang Thi Minh Son; Textbook of Vietnamese Criminal Procedure Law, 11 (People's Police Academy Publishing House, 2005) of the Department of Law, People's Police Academy edited by Dr. Khong Van Ha...
However, at present, research projects only focus on the issue of the right to defense, the rights and legitimate interests of the accused, and pay little attention to the accused, the detainee, and especially there has not been any research project that comprehensively studies the legal status including the rights and obligations of the accused at the level of a master's thesis or a doctoral thesis in law. Moreover, many theoretical and practical issues surrounding the legal status of the accused also require further research in a more comprehensive, specialized and in-depth manner.
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3. Research purpose and tasks
3.1. Research purpose
Based on the study of theoretical issues and provisions of criminal procedure law on the legal status of arrestees, detainees, suspects and defendants; the practical implementation of these provisions to propose a number of solutions to improve the provisions of the Criminal Procedure Code on this institution.
3.2. Research tasks
With the above research purpose, in this thesis the author focuses on solving the following main tasks:
+ Research some issues on the legal status of the accused under criminal procedure law.
+ Overview of criminal procedural regulations of some countries in the world regarding the legal status of the accuser.
+ Overview of the provisions of Vietnamese criminal procedure law from the feudal period to the present on the rights and obligations of the accused.
+ Analyze the provisions of current procedural law related to the legal status of arrestees, detainees, suspects, defendants and the implementation of legal provisions in practice, difficulties and obstacles in the process of law enforcement.
+ Propose some solutions to improve legal regulations related to the legal status of the accused.
4. Research object and scope
4.1. Research subjects
The research objects of the thesis are theoretical issues, provisions of the law on criminal procedure on the rights and obligations of the accused and practices in Quang Nam province.
4.2. Scope of research
The scope of the thesis is the provisions of the law.
Previous and current actions on the legal status of the accused under the Vietnamese Criminal Procedure Code.
Practical data for the research topic were collected in Quang Nam province from 2011 to 2015.
5. Methodology and research methods
5.1. Methodology
The methodological basis of the thesis is the dialectical and historical materialism of Marxism-Leninism, Ho Chi Minh thought and our Party's viewpoints on state and law, on building a rule-of-law state, on judicial reform and human rights.
5.2. Research methods
The research methods used are: analysis, synthesis, history, comparison, statistics... In addition, the author also surveyed litigation practices and consulted experts to clarify research issues.
6. Meaning of the thesis
The important theoretical and practical significance of the thesis is that the author has clarified the legal status of the accused in criminal proceedings on the basis of examining the provisions of the criminal procedure law of Vietnam through the periods in relation to the laws of some countries in the world. At the same time, the author has highlighted the difficulties and obstacles in the process of implementing the current law, making recommendations to improve the norms of this institution in the legislative aspect and their application in practice. Therefore, to a certain extent, it can be affirmed that the thesis has contributed to the theoretical system of criminal procedure law, and is a reference document for those who do research, study and do practical work.
7. Structure of the thesis
In addition to the Introduction, Conclusion and References, the content of the thesis includes 3 chapters:
Chapter 1. Theoretical and legal issues on the legal status of the accused under Vietnamese criminal procedure law.
Chapter 2. Practical application of criminal procedure law provisions on the status of accused persons in Quang Nam province and difficulties and problems.
Chapter 3. Some basic directions and solutions contributing to improving the quality of protecting the legal status of the accused from the practice of Quang Nam province.
Chapter 1
THEORETICAL AND LEGAL ISSUES ON THE LEGAL STATUS OF THE ACCUSED PERSON UNDER VIETNAMESE CRIMINAL PROCEDURE LAW
1.1. Theoretical issues on the legal status of the accused under Vietnamese criminal procedure law
1.1.1. Some concepts on the legal status of the accused under criminal procedure law
1.1.1.1. Concept of accused person
The current Vietnamese criminal procedure law does not have a unified concept of the accused. Legal documents on procedural law often stipulate the subjects participating in the proceedings and define what is an arrestee, a detainee, a suspect, or a defendant depending on the characteristics and different stages of participation in the proceedings of those suspected of committing a crime. Therefore, researching and finding a unified concept of the accused in the criminal procedure law is necessary to study the legal status in general or specifically the rights and obligations of the accused.
In criminal proceedings, the accused is the person who the prosecuting agency considers to have committed an act that is dangerous to society, which the Penal Code considers a crime. These people do not have a judgment or decision of the Court that has come into legal effect, so they are not considered guilty. This is a basic principle and has been affirmed in the 2013 Constitution: " The accused is considered innocent until proven guilty according to the procedures prescribed by law and has a judgment of conviction by the Court that has come into legal effect " [18] . They are people suspected of being criminals, who may be arrested, detained, temporarily detained, prosecuted, investigated, prosecuted, or tried during the criminal proceedings.
The accused cannot be those who are suspected of committing a crime randomly or emotionally, but must be those who are clearly defined in the law in different specific cases, they participate in the criminal procedure and have a specific legal status. According to the law on criminal procedure, those suspected of committing a crime are established
Legal status depends on different stages of the proceedings. Until now, there has not been a legal concept of the accused person, even in the 2003 Criminal Procedure Code with regulations on each different accused person, it only states indicative regulations, listing each subject, which according to the law, in different cases they have different names. In addition, there is an opinion that the concept of " accused person" includes the arrested person, the detained person, the accused, the defendant . The author himself does not completely agree with the above definition.
In my opinion, when giving concepts about a subject with legal status, that concept needs to express some of the content about the elements that make up that subject. The accused person has all the elements that make up the concept, so it is not only expressing the content of the concept in the form of a list as a subject participating in the legal proceedings. The accused person must be a person suspected of committing a crime, but not a suspect without basis, but this suspicion must be placed in a legal criminal procedure process. Suspicion in criminal procedure is different from the suspicion or subjective speculation of an individual with emotional nature compared to normal people in social life. In this case, the person suspected of being a criminal is placed in the context of the agency or individual with state power relying on factual grounds to determine that this suspect has signs of committing a crime as prescribed by the Penal Code. Not only that, the accused person must be the person who has been given a specific decision by a competent authority or individual such as an arrest warrant, a decision to temporarily detain, a decision to prosecute, a decision to bring the case to trial... Those decisions, whether they are to demonstrate a preventive measure or a procedural decision prescribed by law at different stages, are all associated with the accused subject and they have rights and obligations, they become participants in the proceedings.
The basics presented above completely separate a person accused under the Criminal Procedure Code from those suspected of having committed an illegal act in other normal circumstances.
From the above content, we can generalize the concept of the accused person.
in TTHS as follows:
The accused person in criminal proceedings is the person identified by the procedural decision of a competent authority as an arrestee, detainee, suspect, or defendant according to the provisions of law when there is reason to believe that the person has committed an act with signs of a crime, or has committed a crime as prescribed in the Penal Code.
1.1.1.2. Concept of legal status of the accused under criminal procedure law
Karl Marx said: "Under democracy, it is not man who exists for the sake of the law, but law that exists for man" [1, p. 334]. Moreover, we acknowledge that "law has a great role and value at all stages of human development at certain levels". One of the great roles of law is to record the legal status system of citizens in relation to the State.
According to the Law Dictionary:
“Legal status is the position of a legal subject in relation to other subjects on the basis of legal provisions”.
“The legal status of a legal subject is expressed as a whole of the subject's legal rights and obligations, thereby establishing and limiting the subject's capabilities in its activities .” [32]
Because of the importance of the legal status of citizens, in today's modern society, all countries in the world have recognized the legal status of citizens in the most important documents of their country.
The Socialist Republic of Vietnam has also solemnly recognized the legal status of citizens in the Constitution since the early days of its founding. Through many amendments and supplements to the Constitution, the legal status of citizens has been changed and supplemented many times. Today, the 2013 Constitution recognizes this institution in Chapter II. According to the provisions of this chapter, Vietnamese citizens have broad rights and freedoms in all economic, political, cultural and social fields. Not only does our State regulate rights, it also has regulations to ensure those rights. Obligations are not only associated with rights but are also an important factor.
important to ensure that citizens' rights are always implemented in practice. To record in a unified manner, into a complete institution, the 2013 Constitution clearly stipulates in Clause 1, Article 15: " Citizens' rights are inseparable from citizens' obligations ." [18]
From the supreme provisions of the Constitution, legal documents have implemented regulations on the legal status of citizens in many different ways.
In criminal procedure law, the legal status of citizens is known as a large set consisting of many subsets. The reason for saying so is because in criminal proceedings there are many types of subjects: subjects participating in the proceedings, subjects conducting the proceedings... and each subject is prescribed a certain legal status by criminal procedure law. Before giving a specific concept of the legal status of the accused in criminal proceedings, we also need to define what an arrested person, a detained person, a suspect, or a defendant is.
- Concept of arrested person :
Similar to the 1988 Criminal Procedure Code, the 2003 Criminal Procedure Code does not define what constitutes an arrestee, but only regulates cases of arrest. Accordingly, arrest is a preventive measure in criminal proceedings applied to suspects and defendants; to people who have not been prosecuted (in urgent cases, caught red-handed), and to wanted people in order to promptly prevent crimes, create favorable conditions for investigation, prosecution, trial and execution of criminal sentences.
Thus, arrest is a special preventive measure applied immediately before detention and temporary imprisonment.
According to the provisions of the 2003 Criminal Procedure Code, the arrested person can be:
+ Suspects and defendants in cases of arrest and temporary detention to serve the investigation, prosecution, trial and execution of criminal sentences.
+ A person who is preparing to commit a very serious crime, an especially serious crime, or there is reason to believe that after committing the crime, that person will flee or destroy evidence in the case of emergency arrest.