Purpose, Scope, and Content of the Prosecutor's Debate at the Criminal Trial

“ The prosecutor's argument at the first instance criminal trial is the response and discussion between the prosecutor and the defendant, the defense attorney and other participants in the proceedings to reveal the objective truth about all the incriminating, aggravating and mitigating circumstances of the case, helping the panel of judges to issue a verdict that is correct for the person, correct for the crime, and correct for the law” [69, p.4].

In the author's opinion, the above concept does not clearly distinguish between the debate of the Prosecutor and the debate of other subjects at the trial. If it is " the response, the discussion" between the "Procurator" and "the defendant, the defense attorney and other participants in the proceedings" , it includes more in the semantics of the debate process of both the Prosecutor and other subjects at the trial. Therefore, it is not really clearly associated with the debate activity of the Prosecutor. According to the author, the debate of the Prosecutor must be the Prosecutor presenting evidence, citing, analyzing, and arguing to answer and respond to questions and opinions of an opposing nature to the Prosecutor from the defendant, the defense attorney and other participants in the proceedings.

Therefore, based on the theoretical analysis and interpretation and evaluation as above, according to the author of the thesis, " the debate of the Prosecutor at the first instance criminal trial" can be conceptualized as follows:

The Prosecutor's debate at the first instance criminal trial is the activity of the Prosecutor playing the role of the Supreme People's Procuracy and the Supreme People's Procuracy at the trial in the debate part of the Litigation stage at the trial, carried out by the Prosecutor presenting viewpoints, documents, evidence, and at the same time analyzing and arguing to answer and respond to questions and viewpoints about the case that are of an opposing nature to the Prosecutor from the defendant, the defense attorney and other participants in the proceedings to clarify the objective details of the case, helping the Panel of Judges issue a verdict that is correct for the person, correct for the crime, and correct for the law.

1.2. Purpose, scope and content of the Prosecutor's debate at the first instance criminal trial

Maybe you are interested!

1.2.1. Purpose

Debate in court is an indispensable procedure at the first instance trial of a criminal case. Debate in court is regulated to ensure

for the representative of the Procuracy and the participants in the trial to analyze and evaluate the evidence of the case, contributing to proposing the most appropriate handling measures according to the law. Debate in court is one of the measures to implement the principle of litigation, thereby finding the truth from different perspectives, providing a comprehensive view of the case. When the function of exoneration is enhanced, it will be more equal to the function of prosecution of the prosecution agency. From there, it will reduce wrongful convictions, making an important contribution to protecting human rights and civil rights. Because the great impact of the trial activities on society, the accused himself is very large, the right to freedom of body, life, property... and there are rights that cannot be restored when lost, so it is necessary to be really careful when making a judgment so that the right person, the right crime.

From the perspective of a stage of a criminal trial, the debate is conducted by the presiding judge, on the basis of evidence that has been publicly examined at the trial and the provisions of law, the subjects of the prosecution and defense present their views and arguments on objective circumstances and the direction of the case resolution in order to convince the panel of judges to accept their views and reject the views of the opposing side. The purpose of the debate stage at the criminal trial is to determine the objective truth of the case, ensuring that the Court issues a verdict that is correct for the person, correct for the crime, correct for the law, and does not wrong the innocent.

During the debate phase at the first instance criminal trial, the participation of the prosecutor in the debate as the THQCT and KSXX at the trial is mandatory, " The prosecutor must present evidence, documents and arguments to respond to each opinion of the defendant, the defense counsel and other participants in the proceedings at the trial " [45, Clause 2, Article 322]. At the trial, the debate of the prosecutor comes from opinions that are opposed to the prosecution and indictment views of the People's Procuracy and the prosecutor. However, the debate of the prosecutor at the trial is not a matter of "winning or losing", but from arguing and responding to the opinions of the defendant, the defense counsel and other participants in the proceedings to reveal the details of the case, contributing to the Court's correct assessment of the nature of the matter.

In short, the purpose of the prosecutor's debate activities at the first instance criminal trial is also within the general purpose of the debate stage at the trial. The prosecutor's debate activities at the criminal trial have no other purpose than to clarify the objective details of the case in order to contribute, together with the panel of judges, to resolve the case with the right person, the right crime, and the right law, without allowing injustice or letting criminals escape.

1.2.2. Scope

Debate at a criminal trial is a stage in the trial process at a court. The debate stage at a criminal trial is limited in scope. The scope of debate at a criminal trial is generally limited in space, time and content.

In terms of space, the debate activities of the subjects at the first instance criminal trial can only be carried out at the place, in the area where the first instance criminal trial is held. It cannot take place outside the space of the court.

In terms of time, the debate is conducted in the debate phase of the trial, calculated from the time the Chief Justice of the trial declares the end of the questioning phase and moves to the debate phase and pauses if the Panel of Judges decides to resume the questioning phase. The debate ends when the Chief Justice of the trial allows the Defendant to have the last word. It should be noted that here the time range is determined as the time to mark the order and sequence of the debate phase, not a time limit of length according to the timer. The Criminal Procedure Code also stipulates that “ The Chief Justice of the trial shall not limit the debate time… ” [45, Clause 3, Article 322].

In terms of content, the debate of the subjects participating in the debate at the debate stage is limited to the contents of the case, which are debates on evidence determining guilt, evidence determining innocence; the nature and level of danger to society of the criminal act; consequences caused by the criminal act; the defendant's identity and role in the case; aggravating and mitigating circumstances of criminal responsibility, level of punishment; civil liability, handling of evidence, judicial measures; causes, conditions of committing the crime and other circumstances of significance to the case.

As a subject participating in the debate, the debate activities of the THQCT Prosecutor and the KSXX at the first instance criminal trial are also limited in scope. In which, the space and time are also limited in scope as mentioned above. In terms of content, although the purpose of the debate of the Prosecutor is to clarify the objective details of the case in order to contribute to the Panel of Judges in resolving the case with the right person, the right crime, and the right law, without allowing injustice or letting criminals escape, the debate of the Prosecutor is specifically demonstrated through presenting viewpoints, documents, evidence, and at the same time analyzing and arguing to answer and respond to questions, viewpoints, and arguments about the case that are in opposition to the Prosecutor from the defendant, the defense attorney, and other participants in the proceedings. Therefore, according to the author of the thesis, the scope of debate of the THQCT Prosecutor and the KSXX at the trial in terms of content is not all issues related to the case but only within the limits of issues related to the case that the defendant, the defense attorney, and other participants in the proceedings raise that are in opposition to the prosecution and indictment views of the People's Procuracy and the Prosecutor.

1.2.3. Content

Like other procedural activities, debates at the first instance criminal trial have certain contents according to the provisions of the Law on Criminal Procedure. The content of debates at the first instance criminal trial includes all viewpoints and arguments on issues necessary for resolving the case that the parties raise, to request the Panel of Judges to accept or reject when making a judgment on the case.

As the representative of the People's Procuracy, playing the role of the Chief Justice at the trial and being the subject participating in the debate, the debate activities of the Chief Justice prosecutor at the first instance criminal trial include:

First , present the impeachment.

The indictment is the opinion of the People's Procuracy on the criminal case. The content of the indictment must analyze and evaluate objectively, comprehensively, and fully the evidence determining guilt and innocence; the nature and level of danger to society of the criminal act; the consequences caused by the criminal act; the defendant's identity and role in the case; the crime, punishment, application of points, clauses, and articles of the Penal Code,

aggravating and mitigating circumstances of criminal liability; level of compensation for damages, handling of evidence, judicial measures; causes and conditions of the crime and other circumstances of significance to the case.

The indictment proposes to convict the defendant according to all or part of the content of the indictment or concludes on another provision that is lighter or more serious than the provision that the People's Procuracy has prosecuted in the same article; concludes on another crime that is equal to or lighter than the crime that the People's Procuracy has prosecuted; proposes the main penalty, additional penalty, judicial measures, responsibility for compensation for damages, handling of evidence, and recommends measures to prevent crimes and violations of the law.

Second , state opinions, arguments, and respond to the defendant, defense attorney, and other participants in the proceedings.

The presentation of views, arguments and responses by the Prosecutor shall be carried out within the limited scope of content as mentioned in the scope section. That is, within the limits of issues related to the case raised by the defendant, the defense counsel and other participants in the proceedings that are of an opposing nature, opposing the prosecution and indictment views of the People's Procuracy and the Prosecutor.

In both theory and practice, defenders, defendants, victims, and those protecting the legitimate rights and interests of victims and litigants often focus their debates on the following issues:

One is, not admitting that the defendant committed the crime according to the indictment of the People's Procuracy and the conclusion in the prosecution's argument.

Second, the defendant and the defense attorney admit that the defendant committed a crime but committed a lesser crime than the one prosecuted by the People's Procuracy, concluded and proposed to change the charge; the victim and the person protecting the victim's legitimate rights and interests disagree with the charge prosecuted by the People's Procuracy, concluded and believed that the defendant committed a more serious crime and proposed to change the charge.

Third, admit that the defendant committed a crime according to the law that the People's Procuracy prosecuted, but committed a lesser crime than the one that the People's Procuracy prosecuted.

Fourth, admitting that the defendant committed the crime according to the charges and provisions of the People's Procuracy, but the investigation and prosecution process seriously violated procedural rules, so the panel of judges is requested to return the case file and request additional investigation.

Fifth, disagree with the aggravating or mitigating circumstances of criminal responsibility, propose to remove or add aggravating or mitigating circumstances. This is the case where the defendant and the defense attorney disagree with the aggravating circumstances proposed to be applied to the defendant, propose to remove and propose to add mitigating circumstances.

Sixth, disagree with the type and level of punishment proposed by the Prosecutor.

Seventh, disagree with the level of compensation for damages or the measure of handling evidence proposed by the Prosecutor.

1.3. Distinguishing between the Prosecutor's argument and the Prosecutor's argument and the argument of other subjects at the first instance criminal trial

1.3.1. Distinguishing between debate and argument of the Prosecutor at the first instance criminal trial

In the history of legislation and practice of litigation in Vietnam, since the Politburo issued Resolution No. 08-NQ/TW dated January 2, 2002 on a number of key tasks of judicial work until 2020, which identified: " Improving the quality of litigation in court sessions, considering this a breakthrough in judicial activities " [5], the term "litigation" has begun to be mentioned and in recent years has been mentioned more frequently. However, in legal documents before the 2015 Criminal Procedure Code, this term was not mentioned. Therefore, in the science of criminal procedure law in Vietnam, there have been inconsistent views and perceptions about litigation, litigation in court sessions and the distinction between litigation and debate.

In recent years, especially after the National Assembly promulgated the 2015 Criminal Procedure Code, the awareness of litigation, litigation in court and the distinction between litigation and debate has become clearer and more complete. Currently, most views acknowledge that: Litigation is a procedural activity carried out by the parties involved in the proceedings (the accuser and the accused) who have equal rights to collect and present evidence to defend their own views and interests, and to refute the views and interests of the opposing side. Litigation in court is a procedural activity carried out at the trial by two parties involved in the proceedings, in order to defend the opinions and arguments of each side and refute the opinions and arguments of the opposing side.

reject the opinions and arguments of the other side, under the control and decision of the Court as an intermediary and arbitrator.

For a first-instance criminal trial, the litigation process in court begins at the opening of the trial and continues through the trial proceedings, questioning, debate, deliberation and sentencing. According to the author of the thesis, based on the progress of a first-instance criminal trial, the litigation process in a first-instance criminal trial can be divided into the following four stages: Preparation stage; Public examination stage of evidence in the case; Debate stage between the parties; Evaluation stage and announcement of litigation results.

Pre-litigation stage: This is the initial stage of preparation for litigation. It begins at the opening of the trial by the presiding judge and ends before the prosecutor announces the indictment.

Stage of public examination of evidence of the case: This stage begins from the time the prosecutor announces the indictment and ends before the prosecutor presents the indictment. This is the stage of public examination of evidence of the case conducted by the panel of judges with the participation of the prosecutor, lawyer, defender of the rights of the litigant and other participants in the proceedings.

Debate between the parties: This is the central stage, the culmination of the litigation process between the parties at the trial. This stage begins when the Prosecutor presents the indictment and ends before the panel of judges enters the deliberation room.

Stage of evaluation and announcement of litigation results: This is the stage that plays a decisive role in the entire litigation process. This stage begins when the panel of judges deliberates and ends after the verdict is announced. Deliberation and announcement of verdict is the stage in which the panel of judges evaluates and announces the litigation results. The panel of judges performs this activity independently in the deliberation room, without the participation of anyone.

As a person with the duties, powers and responsibilities of " Conducting proceedings at court; announcing indictments or decisions to prosecute under simplified procedures, other decisions of the People's Procuracy on charging the defendant; questioning, presenting evidence, documents, objects, pleading, debating, expressing opinions on the settlement of the case at court, meeting " [45, Point l, Clause 1, Article 42], the Procurator

The prosecutors assigned to the THQCT and the KSXX at the criminal trial of first instance must participate in the litigation process. However, there are still many different opinions on whether the THQCT and the KSXX must participate in the entire litigation process at the trial of first instance.

There is a view that the litigation process at the trial begins at the opening of the trial and ends after the verdict is announced, which includes questioning, debate, deliberation and sentencing, in which debate is the stage that most clearly demonstrates the litigation activity. According to the author of the thesis, the understanding of the scope of litigation as this view is too broad, because in trial practice, the trial procedure is only considered the preparatory stage of the litigation process, moreover, during the deliberation and sentencing stages, the Prosecutor no longer practices litigation but performs trial supervision activities, therefore, the Prosecutor does not conduct litigation in these two stages.

There is another view that the process of the prosecutor's argumentation at the first instance criminal trial is carried out from the opening stage of the trial to the end of the argumentation stage. This view has a narrower scope, but still determines that the prosecutor participates in the argumentation during the trial procedure, that is, during the preparation stage of the argumentation.

According to the thesis author's point of view, from the determination: Litigation at court is the litigation activities conducted at the trial by two parties participating in the litigation, in order to protect the opinions and arguments of each party and refute the opinions and arguments of the other party, under the control and decision of the Court with the role of intermediary, arbitrator , the litigation of the Prosecutor in the first instance criminal trial is the process of the Prosecutor presenting his/her opinions, evidence, and arguments to the accused party on the basis of the objective facts of the case and current legal regulations so that the panel of judges has a clear and certain basis to make an accurate judgment, on the right person, the right crime, and the right law. From here, the thesis author determines that the litigation activities of the Prosecutor at the first instance criminal trial begin from the time the Prosecutor reads the indictment and end when the debate ends. That is, the prosecutor's argumentative activities at the first instance criminal trial are in two stages: the stage of public examination of evidence of the case and the stage of debate between the parties.

Comment