Measures to prevent arrest of criminals red-handed in Vietnam's Criminal Procedure Law

Theoretical issues on BPNC arresting people, arresting people caught red-handed according to Vietnamese Criminal Procedure Law; legal basis for applying preventive measures to arrest people caught red-handed in Criminal Procedure Law; current status of applying regulations on measures to arrest people caught red-handed in the past and some recommendations for solutions to improve the effectiveness of applying BPNC to arrest people caught red-handed in the coming time.

Scope of research: based on legal documents on criminal proceedings and other legal documents from 1957 to present; based on summary reports on arrest, detention, and temporary detention of the Supreme People's Procuracy from 2008 to 2012; reports on activities in arresting criminals of the Ministry of Public Security and the Ministry of National Defense in 2010 and 2011; some cases of arrest and trial in recent years.

4. Research methods

The thesis is based on the methodology of Marxism-Leninism, Ho Chi Minh's thought, the Party's guidelines and the State's legal regulations on the fight against crime. In addition, the thesis is also based on specialized research methods in Criminal Law, TTHS and other specific research methods such as: using the method of synthesis analysis, the method of comparison, the statistical method and the historical method.

5. Theoretical and practical significance of the thesis

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The thesis analyzes theoretical issues, legal regulations and practical assessments of the work of arresting criminals in flagrante delicto to make forecasts about the situation of arresting criminals in flagrante delicto in the coming time. From there, it proposes a number of recommendations and solutions to improve the effectiveness of the work of arresting criminals in flagrante delicto, better serving the fight against crime. The thesis contributes to enriching and gradually perfecting the specialized theory, providing arguments for practical officers to refer to and apply in practice the work of arresting criminals in flagrante delicto. With such meaning, the thesis can be used as a reference document when studying and researching the field of criminal law.

training facilities for police training institutions and other training facilities.

6. Structure of the thesis

In addition to the introduction, conclusion and list of references, the thesis consists of 3 chapters, specifically as follows:

Chapter 1: Some general issues on measures to arrest criminals red-handed in Vietnam's Criminal Procedure Law

Chapter 2: Regulations on measures to arrest criminals red-handed according to the 2003 Criminal Procedure Code and practical application

Chapter 3: Some recommendations and solutions to improve the provisions of criminal procedure law on measures to arrest criminals red-handed and improve the effectiveness of their application.

Chapter 1‌‌‌‌

SOME GENERAL ISSUES ON THE MEASURE OF ARRESTING CRIMES IN VIETNAM'S CRIMINAL PROCEDURE LAW

1.1. Some general issues on measures of arrest and arrest of criminals caught red-handed in criminal procedure law

1.1.1. Concept of arrest measures in criminal procedure law

Arrest is a strictly coercive measure, so arresting people must strictly comply with the grounds, order and procedures prescribed by law. Arresting people aims to promptly prevent crimes, prevent people who commit acts dangerous to society from evading the law, and create favorable conditions for investigation, prosecution, trial and execution of sentences. According to the provisions of the Criminal Procedure Code, arrest is one of the measures applied by investigation agencies, the Procuracy, and the Court to suspects, defendants and possibly to people who have not been prosecuted to prevent criminal acts, prevent criminals from evading the law, and ensure that investigation, prosecution, trial and execution of criminal sentences are favorable and in accordance with the law. The consequences of wrongful arrest will directly affect the constitutional rights of citizens, restrict some individual freedoms, have a great impact on the seriousness of the law, and negatively affect the people's trust in law enforcement agencies. That is the inviolable right to the human body as stated in Article 71 of the 1992 Constitution: " No one shall be arrested without a decision of the People's Court, a decision or approval of the People's Procuracy, except in cases of flagrante delicto. The arrest and detention of people must be in accordance with the law". People can only be arrested under criminal procedures when there is a decision of the Court, a decision or approval of the People's Procuracy, and only in cases of arresting people caught in flagrante delicto do not require a decision of the Court, a decision of the People's Procuracy. If people are arrested illegally, it will cause serious harm in many aspects: the rights and interests of citizens are violated, the effectiveness of the law, the reputation of the

The state in general and law enforcement agencies in particular are weakened.

The subject of arrest is a person, so the arrest requires strict and accurate assurance of the law to ensure the right to inviolability. Arresting a person is not a measure or form of legal punishment for the offender. Correct arrest has a positive effect in preventing and combating the plots and tricks of resistance of the offender, not allowing them to continue to commit crimes, conceal, evade or make it difficult to determine the truth of the case.

In the science of criminal law, the procedure for arresting people has been studied by many authors and there are different concepts and opinions, specifically:

According to the concept of Master Nguyen Mai Bo: Arresting a person is to hold a criminal, not allowing him to continue his activities freely, stopping the criminal act to prevent him from escaping, committing suicide, destroying evidence or hindering the investigation. Arresting a person is one of the most necessary coercive measures of the State to suppress and prevent criminal acts... Arresting a person is one of the BPNC applied by the Investigation Agency, the Procuracy, the Court to the accused, defendants and possibly to those who have not been prosecuted to prevent crime, prevent criminals from evading the law, ensuring that the investigation, prosecution, trial and criminal execution are smooth and in accordance with the law [11, pp. 31-32].

In the Vietnamese Criminal Procedure Law Textbook - Faculty of Law, Hanoi National University, arrest is a criminal procedure measure applied to suspects, defendants, persons suspected of committing crimes or persons caught red-handed committing crimes or persons under arrest warrants in order to promptly prevent crimes, prevent them from committing crimes, create favorable conditions for investigation, prosecution, trial and execution of criminal judgments [21, p.199].

According to the Vietnamese Criminal Procedure Law Textbook of the Hanoi Open University Distance Learning Center, arrest is a criminal procedure applied by the Investigation Agency, the Procuracy, and the Court to suspects, defendants, and possibly to people who have not been prosecuted to prevent crimes and prevent criminals from evading the law.

ensure that investigation, prosecution, trial and execution of criminal sentences are smooth and in accordance with the law [48, p.214].

The author of the Textbook of Criminal Procedure Law of Hanoi Law University believes that "arrest is a special measure in criminal procedure applied to suspects, defendants, wanted persons and in urgent cases or in flagrante delicto, it is also applied to persons who have not been criminally prosecuted in order to prevent their criminal acts, prevent them from evading the law, and create favorable conditions for investigation, prosecution, trial and execution of criminal sentences" [50, p.197].

All four of the above concepts on the measure of arrest have reasonable cores, however, there is an unreasonable point in assuming that one of the purposes of arrest is to "Create favorable conditions for investigation, prosecution, trial and execution of criminal judgments". At the same time, the view that the application of BPNC to arrest people is applied by the Investigation Agency, the Procuracy, and the Court has reduced the role and authority of citizens when participating in arresting criminals in the act and arresting wanted criminals.

Dr. Tran Quang Tiep proposed the concept that arrest is a form of temporary restriction in criminal proceedings, applied by competent authorities, temporarily restricting the physical freedom of suspects, defendants or people who have not been prosecuted (in urgent cases or in flagrante delicto) according to the procedures prescribed by the Criminal Procedure Law, in order to prevent criminals and criminals from evading the law, ensuring the conduct of investigation, prosecution, trial and execution of judgments [45, p.89].

With this concept, it can be seen that arrest is an independent measure in criminal proceedings.

According to Dr. Nguyen Van Diep, “Arrest is a coercive measure prescribed in the Criminal Procedure Law applied by competent agencies and persons as prescribed by law to suspects, defendants or persons who have not been prosecuted; persons who are committing a crime in flagrante delicto or are wanted when there are grounds prescribed by the Criminal Procedure Code, in order to promptly prevent crimes, prevent suspects and defendants from causing difficulties for investigation, prosecution, trial and execution of judgments” [23, pp. 12-13].

The above two concepts have similarities and agree that the person with the right to apply is “agency, competent person”. This provision has overcome the limitations of previous concepts. However, the list of subjects to be applied is quite long.

From the above analysis, in our opinion, we can give the concept of arrest in criminal proceedings as follows: Arrest is a preventive measure in criminal proceedings applied by competent authorities against those who commit crimes in accordance with the order and procedures prescribed by criminal procedure law, in order to prevent criminals and criminals from evading the law, ensuring the conduct of investigation, prosecution, trial and execution of sentences.

Our State has long considered arrest an important legal institution not only in criminal proceedings but also in administrative proceedings. The institution of arrest occupies a worthy position in legal documents issued by the State. Arresting not in accordance with the provisions of the law: wrongly arresting innocent people will cause great harm, negatively affecting people's trust in law enforcement agencies, creating conditions for hostile forces to take advantage of the human rights pretext to sabotage our State. Therefore, when arresting people, we must demonstrate a resolute attitude in fighting against crime, but we must also be cautious when considering and evaluating evidence. In the process of implementing the Criminal Procedure Code, judicial agencies such as the Ministry of Public Security, the Supreme People's Procuracy, the Supreme People's Court, and the Ministry of Justice have issued many single- and interdisciplinary legal documents to guide the application of BPNC, including the measure of arrest [45].

Regulations and application of BPNC in arresting people in criminal proceedings have great significance in the fight against and prevention of crime:

Firstly , it demonstrates the dictatorship of the socialist state in fighting and preventing crime. Crime is a dangerous act for society that violates the sustainable social relations that the state protects. Therefore, the work of fighting, combating and preventing criminal acts in order to eliminate criminal phenomena from social life is one of the important tasks.

must be carried out resolutely, thoroughly and uncompromisingly.

Second , ensuring the smooth operation of the prosecution agencies, significantly contributing to improving the effectiveness of the fight against and prevention of crime. Usually, criminals are very aware of the legal consequences they must bear due to committing crimes, so they find every way to quickly achieve their criminal goals while being able to conceal and avoid detection and punishment by law. The application of necessary coercive measures to prevent crimes, crimes in progress or evasion in a timely and effective manner. Contributing to minimizing the difficulties that criminals can cause in the process of resolving cases.

Third , ensuring democracy and respect for the basic rights of citizens as stipulated in the Constitution such as the right to inviolability of the body, the right to freedom of residence and movement, demonstrating the superiority of the socialist regime. The regulation on the arrest of people by force not only creates favorable conditions for competent state agencies to perform their duties well according to their functions but also aims to ensure respect and full implementation of the basic rights and obligations of citizens as stipulated in the Constitution. Compliance with the provisions of the law on criminal procedure when applying, changing or abolishing a certain arrest in terms of: the necessity to apply, change, abolish, the subjects of application...; the basis for application; competence; application procedures... first of all comes from respect for the legitimate rights and interests of people [50].

Arrest has a direct impact on the right to personal freedom, so when applying it, it is necessary to consider very carefully when deciding to arrest. Arresting people in accordance with the law will contribute to improving the effectiveness of the fight against and prevention of crime. Therefore, stipulating the legal basis for applying BPNC to arrest people is an urgent and important requirement in Vietnamese criminal procedure. Dr. Nguyen Van Nguyen and a number of other authors divide arrest measures into four types: Arresting suspects and defendants for temporary detention; arresting people in emergency cases, arresting people caught in the act of committing a crime, and arresting people who are wanted [28]. But according to

Chapter VI of the 2003 Criminal Procedure Code stipulates three cases of arrest, including:

- Arrest suspects and defendants for temporary detention;

- Arrest people in emergency cases;

- Arresting criminals red-handed or wanted.

Based on the subject of arrest, arrest measures can be divided into the following types: Arresting suspects and defendants for temporary detention; arresting people in emergency cases; Arresting people caught red-handed committing crimes or being wanted; and arresting some special subjects [28, p.198].

Thus, despite different classifications, all authors and lawmakers affirm that arresting a person red-handed is one of the arrest cases classified and clearly regulated in the Criminal Procedure Code.

1.1.2. Concept, characteristics, meaning and principles of measures to arrest criminals red-handed

* According to the Vietnamese dictionary, " caught in the act " means: having reserved evidence, that is, having reserved evidence [68, p.90]. Therefore, committing a crime in the act is committing a crime with reserved, clear evidence, without the need to check or verify.

Arresting a person red-handed is a case of arresting a person who is committing a crime or is discovered or chased immediately after committing a crime. Such criminal acts must directly infringe upon social relations protected by law as stipulated in the chapters on specific crimes. The fault of the offender in the case of arresting a person red-handed is usually direct intentional fault. Red-handed is usually understood as physical evidence (property seized: motorbike, money, phone, gold and silver; tools and means of committing a crime: knife, baton, etc. of the offender) expressed in a specific material form, clearly visible to the eyes. Therefore, physical evidence when arresting a person red-handed is considered a very important source of evidence as a basis for procedural activities to resolve criminal cases, especially in the activity of resolving criminal cases under the simplified procedure.

According to Article 2 of Decree No. 40-SL dated March 29, 1946, there is a definition of crime.

Measures to prevent arrest of criminals red-handed in Vietnam's Criminal Procedure Law - 2

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