Practicing the right to prosecute for murder from the practice of Dong Nai province

3.2 Research tasks

The study aims to reveal some theoretical and legal issues on THQCT for murder, focusing on revealing the concept, characteristics, process and factors ensuring the application of legal provisions in the investigation - prosecution - trial of murder cases of Dong Nai People's Procuracy.

Research the current status of the work of THQCT on murder crimes in Dong Nai province from 2016 to 2020. Draw out the achieved results, the existing limitations that need to be overcome and the objective and subjective causes of the advantages and limitations, thereby proposing specific, scientific and feasible solutions to improve the quality of THQCT on murder cases, meeting the requirements of judicial reform in our country in the current period.

4. Subject and scope of the research topic

4.1 Research subjects

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The thesis uses scientific viewpoints of different authors to study theoretical and practical issues on the practice of the right to prosecute murder cases from the time the crime arises until the case is brought to trial.

4.2 Scope of research

Limitations of space and time: The thesis studies theoretical and practical issues of the investigation of murder cases of the People's Procuracy of Dong Nai province from 2016 to 2020. This is a meaningful period for assessing the current situation, summarizing experiences in the investigation of this type of crime, ensuring timeliness and practical value for the research results of the thesis.

Limitations on the stage of proceedings: The thesis studies the theoretical and practical issues of the trial of murder cases of the People's Procuracy of Dong Nai province. Specifically, from the stage of receiving information sources reporting crimes, initiating criminal cases to the stage of prosecution and first-instance trial for murder.

5. Theoretical basis and research methods

5.1. Theoretical basis

The thesis is researched based on the scientific theory of Marxism - Leninism, Ho Chi Minh's thought on State and Law, the viewpoints, guidelines and policies of the Communist Party of Vietnam on comprehensive national renovation in general, on judicial reform in particular, the legal policies of the Vietnamese state in the field of criminal and criminal proceedings to build a socialist rule of law state of Vietnam.

5.2. Research methods

The thesis uses the dialectical materialist method of Marxist-Leninist philosophy and other specialized sciences. In addition, the thesis also combines other methods such as: analysis, synthesis, statistics, comparison, survey, combining theory and practice.

6. Theoretical and practical significance of the thesis

6.1. Theoretical significance

The thesis contributes to clarifying theoretical and practical issues on the investigation of murder cases by the Dong Nai Provincial People's Procuracy. At the same time, with viewpoints and recommendations, it proposes a number of specific solutions to contribute to improving the effectiveness and efficiency of the prosecution work. It can be used as a basis for developing and perfecting a number of legal provisions related to the policy of strengthening the connection between prosecution and investigation activities in solving murder cases.

6.2. Practical significance

The thesis evaluates the current status of judicial review of murder cases of Dong Nai Provincial People's Procuracy, proposes feasible solutions to improve the quality of judicial review. The results of the thesis can be a useful reference for researchers and state agencies in the development and improvement of laws; can be used as a reference for investigators.

(TV), prosecutors at all levels, especially those directly involved in the investigation of criminal cases of murder.

7. Structure of the thesis

The thesis has an introduction, conclusion and list of references.

In terms of content, the thesis consists of 3 chapters.

Chapter 1: Theoretical and legal issues on the practice of prosecution for murder

Chapter 2: The reality of practicing the right to prosecute for murder from the practice of Dong Nai province

Chapter 3: Requirements and solutions to ensure correct application of legal regulations on practicing the right to prosecute for murder crimes

Chapter 1

SOME THEORETICAL AND LEGAL ISSUES IN PRACTICING PROSECUTION RIGHTS AGAINST THE CRIME OF MURDER

1.1. Concept of exercising the right to prosecute for murder

1.1.1 Concept of the right to prosecute

According to the Vietnamese dictionary, Public Prosecution is: "investigate, prosecute, accuse criminals before the Court " [21, p.204], according to the Law dictionary, it is the right to accuse criminals.

In our country's legal documents, there are currently many different opinions on the concept of QCT and the content of QCT: Some researchers approach the concept of QCT from a very broad perspective, some authors believe that all law-abiding prosecution activities are THQCT, considering prosecution not an independent function of the People's Procuracy, but only a power, a form of performing the function of law-abiding prosecution [19, pp.85-87]. We believe that this point of view is incorrect because it identifies QCT with the function of law-abiding prosecution (now KSHĐTP) of the People's Procuracy, without distinguishing the two basic functions of the People's Procuracy, although they are related but completely independent, which are THQCT and KSHĐTP.

Another opinion is that the right to prosecute is the right of the People's Procuracy when there are violations of the law and the necessary role to protect the legitimate interests of the state and citizens.

The right to prosecute appears in the field of criminal proceedings as well as the State's accusation against individuals and organizations that have violated the law related to the fields of administrative, civil, economic and criminal law [24, pp. 82-88]. This is a viewpoint placed from a broad perspective, covering many fields, it does not clearly show the right to prosecute of the Procuracy as stated in the Law on the Organization of the Procuracy.

There is also another opinion that defines the right to prosecute in a narrower sense, that is, only prosecuting criminals before the Court. This opinion does not fully demonstrate the important role of the Procuracy, because the right to prosecute exists from the time a criminal case arises, from the time of receiving information about the crime.

Thus, QCT is the accusation of the state, arising when there is a crime or dangerous behavior that violates social relations, harms the interests of the state, citizens, and social organizations. QCT appears in criminal proceedings and is closely linked to the accusation function of competent state agencies. As for other prosecution activities in the fields of administration, commercial business, and civil affairs, they are only civil and commercial relations, not having the meaning of accusation as prescribed by criminal law and criminal procedure.

From the above analysis, we believe that " The right to prosecute is a type of state power, exercised by a competent authority (in Vietnam, the Procuracy), to prosecute criminals before the Court for trial and defend that accusation at trial" [12, p.28]. This concept can be fully and clearly understood as the right to prosecute of the Procuracy.

1.1.2 Concept of practicing the right to prosecute for murder

According to Article 19 of the Constitution, human life is of the highest value. When people are born, they have the right to life, which is also a basic human right. Any act that violates the right to life of a person is a violation of the law.

Murder as prescribed in Article 123 of the Penal Code is the act of intentionally and illegally depriving another person of his life in any form. Directly infringing on the human right to life. The objective aspect is expressed externally as the act of illegally depriving another person of his life. The consequence is causing death, if the victim does not die due to objective reasons, that act is also considered a crime of murder. People

Having full criminal responsibility and being of legal age is the subject of the crime. The fault is determined as direct intentional fault, indirect intentional fault, wishing for the fatal consequence to occur.

Thus, a person who must bear criminal responsibility is a person who has full cognitive capacity, ability to control behavior and is 14 years of age or older and intentionally (directly or indirectly) causes the death of another person in an illegal manner.

It can be seen that the nature of the activities of the Procuracy in criminal cases is to exercise the power of the Procuracy in the process of resolving the case, performing the role of accusing, approving, not approving, requesting the collection of evidence and documents related to the case in order to handle the offender objectively, according to the crime committed.

The THQCT activity is a basic function of the People's Procuracy, in which the role of this activity is to ensure that all violations and crimes are detected and handled accurately and promptly, ensuring that crimes are investigated, prosecuted, and tried by the right people, the right crimes, and the right law, without letting criminals escape and without wrongfully convicting innocent people.

The exercise of the right to prosecute is a power with important tasks among the powers assigned to the procuracy.

The subjects of the practice of prosecution are crimes and criminals.

The scope of the practice of the right to prosecute is determined from the time there is a source of information about a crime, a criminal until the case is brought to trial. Determining the scope of the practice of the right to prosecute is to have a clear and specific legal basis and to recognize the important role of the function of practicing the right to prosecute for the prosecution industry.

From the above analysis, it can be seen that the THQCT for the crime of murder is the activity of the People's Procuracy in criminal proceedings to prosecute a person who intentionally causes the death of another person in an illegal manner.

by a person with criminal capacity and aged 14 years or older, carried out from the time the competent investigating authority handles the source of information about the crime and throughout the process of initiating, investigating, prosecuting and trying the case.

1.2. Characteristics of the practice of prosecution for murder

1.2.1 The general and basic characteristics of the practice of the right to prosecute for the crime of murder are stipulated in Article 123 of the Penal Code:

The right to prosecute murder cases is only carried out by the People's Procuracy. The People's Procuracy at all levels is prescribed by law with the rights and responsibilities to supervise all orders and decisions of the Investigation Agency and other agencies assigned to conduct a number of investigative activities related to the case and the accused, including a number of orders and decisions that must be approved in advance by the People's Procuracy to have legal value, such as: decisions to prosecute the accused, detention orders, temporary detention orders, etc.

The exercise of the right to prosecute murder cases by the People's Procuracy is carried out according to a strict order and procedure prescribed by law in order to individualize criminal law and criminal procedure regulations in specific cases; the purpose of the criminal procedure is to prosecute criminals and force them to bear the adverse consequences imposed by criminal law sanctions.

The exercise of the right to prosecute murder cases by the People's Procuracy is conducted on the legal basis of the Criminal Procedure Code. When exercising the function of exercising the right to prosecute, the rights and obligations of the People's Procuracy are fully stipulated in the Constitution, the Law on Criminal Procedure and the Law on the Organization of the People's Procuracy. With its own characteristics, the crime of murder is a particularly serious crime, the offender must face severe punishment, so after committing the crime, they often tend not to admit guilt, or do not fully report the circumstances of the case, other accomplices always have difficulty in taking statements and consolidating evidence. Therefore, from the moment a crime occurs, the role of the People's Procuracy is very important. Ensuring that when approving the orders of the Investigation Agency, indictment, prosecution and trial of the accused, there is

base.

The practice of the right to prosecute is carried out according to a strict order and procedure prescribed by the Law on Criminal Procedure, which is to consider the basis, procedural order, evidence, collected exhibits, statements of the offender, witnesses, etc. to determine whether or not there is a crime, the basis for prosecuting the accused, and also consider other factors related to accomplices, the offender's identity, motives, and purposes of the crime.

For example: When a crime occurs, the Investigation Agency and other agencies are assigned to conduct a number of investigative activities to initiate criminal proceedings. The Procuracy, with its function of exercising the right to prosecute, will participate as soon as the Investigation Agency receives a report of a crime, specifically a murder case that has just occurred in the area. The Procuracy will quickly work with investigators and other relevant agencies to organize a crime scene investigation, autopsy, and approach relevant people. Proactively identify the offender and immediately arrest the subject for investigation. These activities, when carried out, must also comply with the provisions of the Criminal Procedure Code. Participation as soon as the source of the crime report is received will be very convenient for investigators and prosecutors to evaluate evidence, consider initiating a case, prosecuting the accused, and applying appropriate preventive measures.

For the activities of taking statements, collecting evidence and documents related to the case by the Investigation Agency, the Procuracy closely coordinates with the investigator, requiring the investigator to carry out steps such as: appraisal, investigative experiment, identification, confrontation to consolidate evidence, create a solid basis for the Procuracy to consider and approve the decisions of the Investigation Agency and also the premise for the Procuracy to prosecute and charge the offender in court with an indictment. Performing these steps well is also an optimal measure to limit wrongful prosecution and letting criminals escape.

1.2.2 Subject of the practice of prosecution for murder

To carry out the purpose of prosecuting and convicting those who have committed crimes.