Vietnam's Criminal Procedure Model From the Promulgation of the 1988 Criminal Procedure Code to Before the Promulgation of the Criminal Procedure Code

The Procuracy, based on the results of the preparatory meeting between the Court and the Procuracy, discusses and agrees on how to handle the case. Documents and written evidence collected by the prosecution agencies from previous stages are important evidence for examination at the trial.

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Although the lack of legal regulations on TTHS during this period made the research process difficult, from the above research results, some comments on the TTHS model during this period can be drawn as follows:

Firstly , during this period, although the country was at war, the completion of the law on criminal proceedings was also of great concern. Legal documents on the field of criminal proceedings were continuously issued over the years as a basis for resolving criminal cases.

Second , the relationship between the basic functions of the Criminal Procedure Code has been resolved quite properly. The police/investigative agency and the prosecution agency/prosecution agency are assigned to perform the function of charging, in which the Procuracy plays an important role, has the right to direct and supervise investigation activities to ensure that no criminals are missed and to perform well the functions of prosecution and charging at trial. At the same time, the law also has mechanisms to ensure that the authority to direct and supervise the investigation of the prosecution agency/prosecution agency is effective in practice. Regulations on the independence of the Court from other agencies, especially administrative agencies, are guaranteed at the Constitutional level. The right to defense and mechanisms to ensure the right to defense of the accused have been highly recognized, with many very progressive provisions despite the country's difficult and backward conditions.

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Third , there are still regulations that do not meet the requirements of reasonably defining the rights and obligations of subjects in performing the basic functions of the criminal procedure; the same subject is still assigned to undertake many functions of the criminal procedure (For example, regulations on organizing a preparatory session before trial if the viewpoint of the judge assigned to study the case file is different from the viewpoint of the Procuracy expressed in the prosecution decision...).

2.3.2. Vietnam's criminal procedure model from the promulgation of the 1988 Criminal Procedure Code to before the promulgation of the Criminal Procedure Code

2003

The first Criminal Procedure Code was passed by the 8th National Assembly, 3rd session on June 28, 1988 (hereinafter referred to as the 1988 Criminal Procedure Code) marking a new development step in the history of perfecting the Criminal Procedure Law of our country. The 1988 Criminal Procedure Code consists of seven parts and 286 articles. From the criteria for classifying the Criminal Procedure Model, we can consider the Criminal Procedure Model of our country during this period as follows:

* Regarding the goal of the TTHS model and how to achieve the goal. A study of the entire 1988 Criminal Procedure Code shows that it basically maintains and develops the TTHS regulations of the previous stage, which is clearly affirmed in the Preamble of the Code. The goal of finding the objective truth of the case is clearly identified in Article 1:

The Criminal Procedure Code stipulates the order and procedures for initiating, investigating, prosecuting, trying and executing criminal sentences; the functions, tasks, powers and relationships between the agencies conducting the proceedings; the rights and obligations of the participants in the proceedings and of state agencies, social organizations and citizens in order to accurately and promptly detect and fairly and promptly handle all criminal acts, not to let criminals escape, not to wrongfully convict innocent people... [59].

Crime detection and crime control are the most important goals in our country's criminal procedure model. When a crime occurs, the prosecution agencies are responsible for detecting and handling it, not accepting arbitrary prosecution or plea bargaining; the exemption from prosecution regime is also abolished, no longer recorded in the 1988 Criminal Procedure Code, replaced by the principle of prosecution (Article 13). To achieve this goal, the criminal procedure basically mobilizes the participation of state agencies in finding the truth of the case (Investigation Agency, Procuracy, Court). The Court is not only the agency performing the adjudication function in criminal procedure, the Court is also assigned the responsibility of detecting crimes and applying all measures prescribed by the Code to identify crimes and handle criminals. This is identified as a basic principle of criminal procedure (Article 13 of the 1988 Criminal Procedure Code) and is reflected in many other provisions of the Criminal Procedure Code.

* The basic functions of the Criminal Procedure Code and the determination of the legal status of the subjects in performing the basic functions of the Criminal Procedure Code. The promulgation of the Criminal Procedure Code in 1988 was not based on a clear awareness of the existence and division of the basic functions of the Criminal Procedure Code. Therefore, the provisions on the legal status of the subjects of the proceedings do not follow the direction of clear distinction according to the functions of prosecution, defense, and trial. The Criminal Procedure Code is organized in the direction of mobilizing the maximum participation of the procedural agencies in discovering the truth of the case, even the same procedural subject is assigned to perform many procedural functions.

The investigation agency and the People's Procuracy undertake the function of prosecution in criminal proceedings: detecting crimes, collecting evidence to prove the crime, prosecuting the offender and defending the accusation before the Court. Regarding the relationship between the investigation agency and the People's Procuracy in performing the function of prosecution, the 1988 Criminal Procedure Code stipulates that the investigation and collection of evidence are mainly performed by the investigation agency; however, the People's Procuracy plays a very important role in performing the function of prosecution at the investigation stage (Article 36). These powers of the People's Procuracy during the investigation stage are important conditions to ensure the good performance of the function of prosecution, especially at the trial stage later. However, at this stage, the law has also removed a number of important provisions, which are meaningful mechanisms to ensure that the People's Procuracy performs well the responsibility of prosecution during the investigation stage (such as the participation of the People's Procuracy in considering the appointment and promotion of investigators). The victim is not identified as the accuser in the criminal procedure, and has a role similar to that of a witness in a criminal case, making requests, proposing compensation for damages, appealing against the judgment and decision of the Court on compensation as well as punishment for the defendant (Article 39). However, in some cases, the prosecution by the prosecution agencies is only carried out upon request of the victim (Article 88).

Detainees, suspects, defendants and their defense counsels are the subjects performing the defense function in criminal proceedings. Suspects and defendants have the right but are not required to prove their innocence (Article 11); have the right to present evidence and requests, have the right to defend themselves or ask others to defend them.

(Article 34)… The defense attorney has the right to participate in the proceedings from the time of indictment (except in cases where it is necessary to keep the investigation secret for crimes against national security); has the right to be present during the interrogation of the accused and, if the investigator agrees, to question the accused and be present in other investigative activities; has the right to present evidence and requests; to meet the accused or defendant in detention; to read the case file and take necessary notes after the investigation is completed; has the right to participate in questioning and debate at the trial… It can be seen that, compared to the previous stage, the procedural law of this stage has more specifically stipulated the rights of detainees, accused and defendants in performing the function of prosecution.

The Court performs the adjudication function in criminal proceedings with a very active and proactive role, and in many cases, the provisions of the law have placed the Court beyond the adjudication function, exercising the powers of other procedural functions. The 1988 Criminal Procedure Code stipulates that in the trial preparation stage: The judge studies the case file before opening the trial, returns the file to the Procuracy for additional investigation in case the Procuracy's file and indictment lack evidence of the crime or there are other accomplices or other criminals who have not been prosecuted (Article 154); at the trial, immediately after the prosecutor announces the indictment, the Trial Panel is responsible for asking questions first, then the prosecutor and the defense attorney (Article 181); continue the trial when the prosecutor withdraws part of the prosecution decision (Article 195)... The issue of trial limits is regulated very progressively in the 1988 Criminal Procedure Code, the Trial Panel only tries within the prosecution limits of the Procuracy, prosecuting to that extent (Article 170).

* Evidence and existence of criminal case files. The 1988 Criminal Procedure Code devotes a separate chapter to regulating evidence (Chapter IV). Although specific provisions on detainees, suspects, defendants and defense counsels stipulate the rights of these subjects in presenting evidence, the use of evidence is only regulated for the agencies conducting the investigation, the People's Procuracy and the Court (Article 48). The law recognizes the existence of evidence in four forms: physical evidence; statements of witnesses, victims, civil plaintiffs, civil defendants, detainees, suspects and defendants; expert conclusions; records of investigation and trial activities.

and other documents (Article 48). The 1988 Criminal Procedure Code stipulates that the procedural process at the trial is essentially the entire interrogation process to check the evidentiary value of the evidence in the case file. As in the previous stage, the case file is established according to unified regulations that exist from the investigation stage, through the prosecution stage and transferred to the Court during the trial stage as a basis for the judge to study the file during the trial preparation stage and as a basis for the Trial Panel to examine at the trial. At all stages of the proceedings, there are regulations on the establishment, completion, study of the file and transfer of the case file between the prosecuting agencies.

General comments : as mentioned above, the promulgation of the (first) Criminal Procedure Code in 1988 marked a new development step in the history of perfecting the criminal procedure law in our country and in terms of the criminal procedure model, it was also a step to perfect the criminal procedure model. From the analysis of the criminal procedure model associated with the criteria for classifying the criminal procedure model, some comments can be drawn on the criminal procedure model in our country during this period as follows:

Firstly , TTHS aims to control crime, quickly detect and promptly handle crimes and criminals, and find the objective truth of the case.

Second , to achieve this goal, the Criminal Procedure Code has mobilized the maximum active participation of all agencies conducting the proceedings. Not only the Investigation Agency and the Procuracy, but also the Court is determined to have the responsibility to prove the crime (Article 11). To specify the Court's responsibility to prove the crime, the law has given the Court many powers under the function of charging and prescribed procedures for the Court to exercise these powers.

Third , the right to defense and the mechanism to guarantee the right to defense are regulated more fully and specifically to better ensure this important right of the accused. However, in addition, some progressive regulations related to ensuring the right to defense recorded from the previous period have also been eliminated in the 1988 Criminal Procedure Code.

CONCLUSION OF CHAPTER 2

1. The model of criminal procedure is a generalization of the basic and common characteristics, reflecting the way of organizing criminal procedure activities, the way of finding the objective truth of the case, thereby deciding the procedural status of the procedural subjects, the nature of the relationship between the procedural subjects and the order and procedures for resolving criminal cases. To identify and classify criminal procedure models, we can base on the main criteria such as: the concept of the nature of criminal procedure; determining the goals and ways to achieve the goals of criminal procedure; awareness of the existence of basic functions of criminal procedure and determining the legal status of subjects in performing basic functions of criminal procedure; evidence and the existence of criminal case files.

2. The history of world criminal procedure has recorded the existence and development of two main criminal procedure models: the adversarial criminal procedure model and the inquisitorial criminal procedure model. Both of these criminal procedure models aim to find the truth of the case, but the fundamental difference between the two models is the way to find the truth of the case. The adversarial criminal procedure model creates and ensures a truly fair process and procedure for the prosecution and defense to find the truth of the case. The inquisitorial criminal procedure model finds the truth of the case by mobilizing the maximum participation of State prosecution agencies (including the Court) to prove the crime.

3. The need for development and deep international integration, including in the field of criminal procedure, has witnessed the exchange and mutual absorption in criminal procedure of different countries. In fact, there is almost no longer a criminal procedure model that is essentially an interrogation or a litigation model. Many research works even claim that the exchange and learning between criminal procedure models has created a new model - a mixed criminal procedure model.

4. Vietnam is a country with a continental European legal tradition, influenced by the French legal system, including the criminal procedure law applied in our country for more than 100 years, and later continued to be influenced by the Soviet criminal procedure model. Therefore, according to the criteria for distinguishing criminal procedure models, Vietnamese criminal procedure belongs to the inquisitorial procedural model. In the conditions of the country at war, with difficult socio-economic conditions in the past,

This model has basically been effective in controlling crime, protecting security and order, and to a certain extent contributing to protecting human rights and civil rights in the process of resolving criminal cases.

Chapter 3

LEGAL AND PRACTICAL BASIS

OF THE CURRENT VIETNAMESE CRIMINAL PROCEDURE MODEL

3.1. LEGAL BASIS OF THE CURRENT VIETNAMESE CRIMINAL PROCEDURE MODEL

3.1.1. Characteristics of the current Vietnamese criminal procedure model

The current Vietnamese criminal procedure model is reflected in the Criminal Procedure Code approved by the 11th National Assembly, 4th session, on November 26, 2003 (hereinafter referred to as the 2003 Criminal Procedure Code). Compared with the criminal procedure model reflected in the 1988 Criminal Procedure Code, the current Vietnamese criminal procedure model has many innovations, demonstrating higher democracy, adding a number of measures to protect human rights, civil rights and especially defining more clearly the responsibilities of the prosecution agencies in resolving cases. This cannot be achieved without mentioning the context before the promulgation of the Criminal Procedure Code in 2003. In 1999 and 2000, in response to the need for strict management, ensuring accuracy in arrest and detention activities, and ensuring human rights and civil rights in the field of criminal justice, on March 21, 2000, the Politburo issued Directive 53-CT/TW on a number of urgent tasks that judicial agencies need to perform in 2000; then, on January 2, 2002, the Politburo issued Resolution No. 08-NQ/TW on a number of key tasks in the coming time. For criminal justice reform in general and reform of the criminal procedure model in particular, the directives and resolutions set out many important policies. These policies have been basically institutionalized in the 2003 Criminal Procedure Code, creating positive changes in the provisions of the Code as well as in the practice of criminal justice in our country in recent times. From the perspective of the Criminal Procedure Code model, the following fundamental innovations can be summarized:

Firstly, regarding the nature of the criminal procedure model. The 2003 Criminal Procedure Code continues to affirm that a criminal act is an infringement on public order and the common interests of society, so the State must be responsible for resolving it.

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