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VIET NAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES NGUYEN THANH MAN CRIMIAL PRECEDENT IN VIETNAM TODAY Major in: Criminal and criminal procedure law Code: 38 01 04 SUMMARY OF DOCTORAL THESIS OF LAW HANOI – 2019 This dissertation completed at Graduate Academy of Social Sciences Under Vietnam Academy of Social Sciences Supervisor: Assoc Prof PhD Tran Van Do Reviewer 1: Prof PhD Nguyen Ngoc Anh Reviewer 2: Prof PhD Ho Trong Ngu Reviewer 3: Assoc Prof PhD Truong Quang Vinh The dissertation will be defended at the Academy level Council of Dissertation Assessment Venue: Doctoral dissertation defending room Graduate Academy of Social Sciences under Vietnam Academy of Social Sciences, No 477, Nguyen Trai road- Thanh Xuan District - Hanoi Time: … hours, date………, month……… year 2019 The dissertation could be found at: - Vietnamese National Library - Library of Graduate Academy of Social Sciences INTRODUCTION The urgency of the project Firstly, building a socialist rule-of-law state of the people, by the people and for the people is one of the top priority tasks in the contents of judicial reform in Vietnam today The administration of the State and the society by law is just a necessary factor but not the sufficient element of a rule-of-law state The rule-of-law state requires that the law shall be applied in a tailor-made way The fact that the court applies the law in an uniform manner shows in similar cases, they must be treated equally The precedent in general, criminal precedent in particular has long been very popular and beyond the borders of the common law tradition, becoming a legal source of many legal systems in the world That is the inevitable result of the process of globalization, integration and cooperation which has been taking place strongly in the economic, political and legal life of the modern world Currently, in the context of increasingly widespread and deep international integration, issues of disputes and relations arising in economic activities, types of crimes in Vietnam tend to be more complicated with many more sophisticated forms The statutory law has gradually revealed gaps that need to be supplemented and improved Thoroughly grasping the points of view in the Resolution No.48 and the Resolution No.49 of the Politburo is an urgent requirement Recognizing and applying the precedent is consistent with the Constitution and laws of Vietnam Furthermore, according to the applicable regulations, the Council of Supreme People's Court Judges shall guide the courts to apply the law uniformly, which can be implemented through the issuance of a Resolution guiding the application of law and also through selection and publication of case law Secondly, the practice of applying the statutory law in judging criminal cases in Vietnam has achieved many achievements but still has unresolved problems The experience of the countries in the world is to acknowledge the the precedent, in order to solve problems in trial activities where the statutory law is unclear or there is no regulation The precedent has become more popular, contributing to overcoming the gaps of the statutory law In the current trial of criminal cases in Vietnam, many cases have similar behaviors and circumstances, but there are still different understandings, leading to the unification of the law The trial result is different This practice poses the need to apply the precedent to resolve criminal precedents as an objective indispensable requirement Therefore, studying the criminal precedent and thoroughly understanding of the manner and the process of developing and applying the criminal precedent is an essential and urgent task in the current period This is an important reason for the researcher to study the topic “Criminal precedent in Vietnam today” in order to seek breakthrough solutions, contribute to the formulation and application of the precedent in adjudicating criminal cases in an effective way Thirdly, currently, the selection, publication and application of the Resolution No.03/2015/NQ-HDTP, on the process of selecting, publishing and applying the precedent (hereinafter referred to as the Resolution No.03) The construction and application of the criminal precedent also follow this process With the above process, the Supreme People's Court has issued 04 criminal precedents (hereinafter called the criminal precedent), in which 01 criminal precedent has become legally effective and 03 criminal precedents will be effective since December 3, 2018 This result has affirmed the correct policy of the Party and the State of Vietnam and the high efforts and determination of the leaders of Vietnam court system However, the current number of the criminal precedents is too small The main reason is due to the fact that the process of construction and selection is not currently reasonable, short of separate criteria and the not clearly defined application Many issues and contents related to the criminal precedent have not been studied and clarified From the above reasons, the doctoral researcher has chosen the topic Criminal precedent in Vietnam today as the doctoral thesis in law with the major in criminal precedent Research purposes and tasks 2.1 Research purposes In response to the requirements of judicial reform and the implementation of the Constitution 2013, the construction and application of the precedent in general and the criminal precedent in particular in the trial is an urgent task Because, the the precedent is expected to overcome the gaps of the statutory law But how decisions and judgments become criminal precedents, and how criminal precedents apply are not a simple matter Recognizing the above importance, the research purpose of the thesis is to clarify theoretical issues about the concept of the precedent, the nature and characteristics of the criminal precedents; theories on construction and application of the criminal precedents; practical construction and application of the criminal precedent in Vietnam On that basis, the thesis proposes the requirements and solutions to improve the quality of building and applying the criminal precedent in Vietnam in the coming time 2.2 Research tasks To achieve the above goal, the research task is to: Firstly, analyze and clarify theoretical issues of the criminal precedent (concept, nature, characteristics of the criminal precedent); theories on construction and application of the criminal precedent Secondly, assess the achievements and limitations and the causes of achievements and limitations in practical construction and application of the criminal precedent in Vietnam Thirdly, propose requirements and solutions to contribute to improving the quality of building and applying the criminal precedent in Vietnam Subjects and scope of the study 3.1 Research subjects Theoretical issues of the criminal precedent; theory and practice of building and applying the criminal precedent in Vietnam, solutions to improve construction quality and apply criminal precedent in the coming time 3.2 Research scope - About the content: The thesis studies the theory and practice of building and applying the criminal precedent in Vietnam today - About the time: The thesis has been studied since 2005 until now (From the the Resolution No 49/NQ-TW dated June 2, 2005 by the Politburo, Regarding the judicial reform strategy up to 2020) Besides, in order to ensure the system and achieve the research purpose, the thesis has mentioned some contents about precedents and criminal precedents before and after the above timeline Methodology and research methods 4.1 Methodology The thesis researches on the viewpoints of Marxism-Leninism and Ho Chi Minh Ideology, the viewpoints of the Communist Party of Vietnam and the State on the state, the law, building the rule-of -law state, about judicial reform, theories and history of the state and the law, criminal laws and criminal procedural laws, reflected in the process of directing judicial reforms to meet the requirements of building a socialist rule-of-law state in Vietnam 4.2 Research Methods The thesis uses specific research methods such as systematization method, analytical method, logic method, criminal statistical method, summarization method, collation method, comparison method, proving method, practical survey methods In addition, the thesis is studied on the basis of legal science majors such as: History of law, theory of law, criminal law, criminology, criminal procedural law, sociology of law Thereby, the researcher draws conclusions and appropriate proposals to complete the regulations on construction and application of the criminal precedent New scientific contributions of the thesis Firstly, to develop concepts, internal analysis, nature and characteristics of the criminal precedent, thereby proposing criteria to have a basis for building criminal precedent as well as selection proposals Secondly, the dissertation analyzes and clarifies the concepts, characteristics and principles of the principle of building and applying the criminal precedents in trial activities, thereby proposing the selection process and the compulsory nature in the application of the criminal precedent Thirdly, by analyzing achievements, limitations and causes of such achievements and limitations in the formulation and application of the criminal precedent, the thesis clarifies the practice of building and applying the criminal precedents in Vietnam since the first criminal precedent was announced Fourthly, on the basis of the requirements set forth, the thesis boldly proposes solutions to improve the quality of construction and application of the criminal precedent in Vietnam in the coming time The theoretical and practical significance 6.1 The theoretical significance The thesis overcomes the lack of scientific researches on criminal precedents in Vietnam today The thesis is the first and sole project at the present time to study the criminal precedent in Vietnam, contributing to supplementing the theory of the criminal precedent, theories on the construction and application of the criminal precedent in Vietnam The thesis elaborates and clarifies some theoretical issues about criminal precedents such as: Building the concepts, analyzing internal functions, nature and characteristics of the criminal precedents; at the same time, analyzing and clarifying the concepts, characteristics and principles of building and applying the criminal precedents in trial activities These contributions will contribute to building and completing the theory of the criminal precedent, building and applying the criminal precedent in Vietnam today It is the basis for further studies to be able to inherit and develop the theory of building and applying the criminal precedent in Vietnam; opening the research direction on criminal precedents in specific regulations of the criminal law 6.2 The practical significance - The research results of the thesis are references to the Vietnamese court system to continue to build and apply criminal precedents - As the references for studying and teaching law, law practice In particular, the training institutions can refer to the development of the program, the curriculum of higher education, judge operation training - As the references for individuals and organizations interested in researching, suggesting some research directions on the precedent in other fields (research on civil law, administrative law ) In particular, it is possible to open an in-depth research on civil the precedent which is currently an urgent requirement Structure of the thesis The thesis includes the introduction, conclusion, list of references and appendices, the content of the thesis consists of chapters and 10 periods Chapter 1: Overview of research situation and issues to be further researched on the criminal precedent Chapter 2: Theoretical issues of the criminal precedent, construction and application of the criminal precedent Chapter 3: Practice of building and applying criminal precedents in Vietnam Chapter 4: Requirements and solutions to improve the quality of construction and application of the criminal precedent in Vietnam Chapter OVERVIEW OF THE RESEARCH SITUATION AND ISSUES TO BE FURTHER STUDIED ON THE CRIMINAL PRECEDENT 1.1 Research situation 1.1.1 Overview of the international study situation 1.1.1.1 The group of research projects on the concepts, position, role and characteristics of the precedent The book Precedent In law by Gernald J.Postema; the book Introduction, quoted by J.A.G Pacock in The Ancient Constitution And the Feudal Law by Sir John Davies; the book Institutes, I, Sec.138 quoted by Gerald J.Postema, Some Roots Of our Nation Of Precedent, In “Precedent In Law” by Coke; the book Commentaries (13th ed) on the Law of England by Blackstone; the book “Interpreting Precedents” by the two authors D.Neil Mac Cormick, Robert S.Summer; the book Jurisprudence Theory and context by Brian Bix; the book The Rule of Precedent by Theodore M.Benditt; the book Precedent in the Federal Republic of Germany, in “Interpreting Precedents A Comparative Study” by Alexy, Robert and Ralf Dreier; the book French Legal Method by the French jurist, Eva Steiner 1.1.1.2 The group of research projects on criteria, characteristics, principles of construction and application of the precedent The Article “Precedent-related regime of South Korea” by Yoonmin Rah ; The book “Interpreting Precedents - A comparative study” by D.Neil Mac Cormick (1997) ; The book "“Judicial Reasoning and The doctrine of Precedent in Autralia” by Alastair MacAdam and John Pyke (1998) ; the doctoral thesis Evaluation of the applicability of Common law approaches to precedent in Vietnam by Do Thi Mai Hanh completed at University of Wollongong, Australia (2011) 1.1.2 Overview of the research situation in Vietnam 1.1.2.1 The group of research projects on the concepts, positions, roles, characteristics and history of the precedent The ministry-level scientific research project Deploying the precedent into the trial of Vietnam court system by Truong Hoa Binh Chief Judge of the Supreme People's Court (Chairman, 2012) ; The article “About the current precedent of Vietnam” by Dang Quang Phuong, the former Deputy Chief Judge of the Supreme People's Court ; The article “A general awareness of the the precedent, the importance of the precedent in the trial and generalization of precedent schools in the world” by Nguyen Van Cuong (2009) ; the article “The problem of applying the precedent in Vietnam” by Duong Bich Ngoc and Nguyen Thi Thuy (2009) ; The dissertation The theory and practice on the precedent in the legal system of England, USA, France and Germany and proposals for Vietnam by Nguyen Van Nam (2011) ; the article “Regulations on the precedent in the Law on Organization of People's Courts 2014 - from the perspective of the precedent nature” by Dau Cong Hiep and Ha Thi Phuong Tra ; The book “Sociology of Law” by Vo Khanh Vinh ; The book “ Comparative criminal law” by Ho Sy Son (2018) 1.1.2.2 The group of research projects on selection criteria, processes, characteristics and principles of construction and application of the precedent The article “Japanese precedents and a number of issues raised when bringing the precedents to trial in Vietnam Court” by Nguyen Van Cuong (2009) ; The article “The precedents of the Supreme Court - The French experience for the development of the precedent in Vietnam” was published in the People's Court Journal by Do Van Dai, Issue No.13 (2011); the article “Discussing criteria and procedures for selection of the precedent” by Tran Van Tuan (2015) ; the article “The process of selecting, announcing and applying the precedent in Vietnam” by Chu Thanh Quang published in the Workshop Proceedings Precedent - Theory and practice in Vietnam and some countries held at Hanoi Law University (2017); The article “Challenges and orientations for implementing the precedent in Vietnam” by Chau Hoang Than published in the State and Law Magazine (Issue No.2/2016); the doctoral dissertation Functions of establishing the precedent of the court by Do Thanh Trung (2018); The book Source of Vietnam's criminal law by Nguyen Anh Tuan (2010); the article Content, manners of building and applying criminal precedent number 01 by Tran Thi Quyen published in the Proceedings of the International Scientific Conference titled “Precedent - Theory, Practice in Vietnam and some countries (2017).” 1.2 Comments on the research situation 1.2.1 General comments By reviewing the research projects on precedents and criminal precedents, which have been published both at home and abroad, we can realize that: Firstly, the projects primarily focused on the history, the process of recognizing the precedent as as source of law in the countries which apply the Common law and Civil law systems Conceptions on notions, characteristics, roles, construction methods and principles of the precedent application of different schools in Vietnam and around the world For each different court system, the application of the the precedent is different Due to the legal system and the organization of the court system of those countries In addition, when building the precedent, the projects note the criteria for selection, publication, proposal of construction and development of law and how to apply This is considered an experience for Vietnam when recognizing, developing and applying the precedent Secondly, the research projects of domestic authors initially clarified the concept, characteristics and role of the precedent in general Thirdly, there are some projects mentioning the application of the precedent in resolving criminal precedents Fourthly, in addition to the research projects directly to the issue of construction, application of law in general, Criminal precedent in particular, there are also some deep researches on sociology of law and mechanism guarantee and protection of human rights These are systematic studies on the improvement of the law in order to build a mechanism to ensure and protect human rights and to improve the law on the basis of practicality and sociality of the law 1.2.2 Some issues need to continue research The thesis focuses on clarifying the following contents: Firstly, analyze, clarify theoretical issues about criminal precedent, develop and apply criminal precedent In the Vietnamese legal system, criminal precedent in general, criminal precedent in particular is still a new issue Therefore, in order to achieve the purpose of the study, the thesis topic clarifies the theoretical issues of the criminal precedent, formulating and applying the criminal precedent law ie focusing on analyzing and clarifying the conceptual content Criminal precedent, showing the nature, characteristics and role of the criminal precedents Besides, the thesis analyzes and clarifies concepts, characteristics, principles of construction and application of the criminal precedent This is the basis to point out the characteristics of the criminal precedents compared to other types of the precedent Secondly, analyze and clarify the practice of building and applying the criminal precedent in Vietnam In Vietnam, the recognition of precedents in general, criminal precedent in particular in the legal system is a very long process In general, criminal precedent has been acknowledged as a source in the history of Vietnamese law Therefore, when studying the practice of construction and application of the criminal precedent in Vietnam, the thesis will study through phases: Phase 1: Practical construction and application of the criminal precedent before 2015 ; Phase 2: Practical construction and application of the criminal precedent from 2015 to present At each stage, clarify the characteristics in the selection and publication of the criminal precedents through the competent authorities and the activities of the competent subject to apply Criminal precedent in trial practice On the basis of practical analysis to build and apply criminal precedent, the thesis topic initially assesses the achievements and limitations that exist in the process of developing and applying the criminal precedents aiming to find solutions to overcome that limitation Thirdly, propose solutions to improve the efficiency of building and applying the criminal precedents in Vietnam The above issues will be analyzed in depth by the researcher in the next chapters of the thesis 1.3 Research hypothesis and research questions 1.3.1 Research hypothesis With the topic “Criminal precedent in Vietnam today”, the doctoral researcher sets the research hypotheses as follows: - Since the year 2004 now, the Supreme People's Court regularly announced the cassation decisions of the Judges Council of the Supreme People's Court This is one of the necessary preparation steps for recognition and development of The precedent in Vietnam In the Firstly, criminal precedent plays a role, contributing to supplementing and completing the process of building and applying the criminal precedent; Secondly, the criminal precedent contribute to strengthening the principle of ensuring equality before the law as applied the precedent criminal ; Thirdly, criminal precedent contributes to concretizing the meaning of abstract criminal precedent provisions through the interpretation of the criminal precedent; Fourthly, a criminal precedent is unified in the application of the criminal precedent, ensuring the stability of the criminal precedent 2.1.4 Discrimination of the criminal precedents with other types of the precedent Firstly, the relationship between Criminal precedent and administrative law Secondly, the relationship between Criminal precedent and civil law In summary, the analysis and comparison make clear the difference between criminal precedent and other types of the precedent (Administrative, Civil, Commercial Business, Labor, Family Marriage) with important significance for determining criteria to select criminal precedent in accordance with practice to promote the effectiveness of the construction and application of the criminal precedent Since then, there is a basis to propose the selection process and apply the individual Criminal precedent 2.2 Concepts, characteristics and principles of the criminal precedent construction 2.2.1 Concept of the criminal precedent construction The process of building the law or the way to formulate laws is essentially the process, the way to create laws in history The law is not accidental but it is not the phenomenon that is imposed from the outside into society but it is the product of human consciousness, in a class society It is the result of the process of human subjective awareness of the objective world Building criminal precedents in Vietnam today is the process of selection and announcement by competent agencies according to the process, self-procedures, forms prescribed by law, to apply for solving case cases the same afterwards 2.2.2 Characteristics of criminal criminal construction Firstly, building criminal precedent is a state-owned activity ; Secondly, building criminal precedents of commonality, stereotypes and legal standards ; Thirdly, building a criminal criminal systemic system ; Fourthly, building criminal precedents must 12 comply with a strict process according to certain procedures ; Fifthly, the subject who created the Criminal precedent is the Judges 2.2.3 Principles of building the criminal precedent in Vietnam Activities to build criminal precedent of state power affect the whole society Therefore, the construction of the criminal precedents must comply with the basic principles to ensure that state power is implemented and strictly controlled Firstly, the principle of ensuring the leadership of the Communist Party of Vietnam for law-building activities in general and construction of the criminal precedents in particular Secondly, the objective principle Thirdly, the rule of law Fifthly, scientific principles Fourthly, the democratic principle 2.3 Concepts, characteristics and principles to apply criminal precedent 2.3.1 Concept of applying the criminal precedent Application of the law in general and the application of the criminal precedent in particular is the form of law implementation, in which the state adopts state agencies or authorities competent to organize law enforcement entities laws, the implementation of the provisions of the law or by themselves according to the provisions of the law to make decisions to generate, change, suspend or terminate specific legal relations It is possible to draw the concept of applying the criminal precedent as follows: Applying the criminal precedent is the activity of the authorized entities in the process of conducting criminal proceedings based on the law and Criminal precedent to solve criminal precedents in the period from prosecution, investigation, prosecution and trial 2.3.2 Characteristics of criminal criminal application Firstly, is a state-owned activity Secondly, the operation must comply with strict forms and procedures prescribed by law Thirdly, applying the criminal precedent is a specific and specific adjustment activity for certain social relations Fourthly, applying the criminal precedent is an activity that requires creativity 2.3.3 Principle of applying the criminal precedent Firstly, there are grounds, valid reasons when applying the criminal precedent Criminal precedent applies only when criminal precedents have behaviors and circumstances that have different interpretations that are explained in a Criminal precedent 13 Secondly, the application of the criminal precedent must ensure right and fair for each specific case Thirdly, applying the criminal precedent must ensure legal status This requires work Conclusion of Chapter On the basis of studying the concept of "the precedent" according to the different perspectives of some countries around the world according to the Common Law system and Civil Law system, the doctoral student has made concept of the criminal precedent, nature, characteristics, role of the criminal precedent, theories on construction and application of the criminal precedent with its own characteristics Through this, you can see the role and characteristics of the criminal precedent and its role in the trial of criminal cases Thereby, the graduate student believes that criminal precedent has existed in the legislative history of Vietnam The issue of building and applying the criminal precedent has the common characteristics of law-building and application activities such as: building and applying a criminal precedent of state power; is an activity that must comply with strict forms and procedures prescribed by law; is a specific, specific adjustment activity; is activity that requires creativity In addition, the construction and application of the criminal precedent also has principle requirements, in order to ensure the effectiveness of the construction and application of law in general and the application of the criminal precedent in particular Chapter PRACTICE OF BUILDING AND APPLYING THE CRIMINAL PRECEDENT IN VIETNAM 3.1 Practical construction and application of the criminal precedent 3.1.1 Practices to build and apply criminal precedent for the period before 2015 The the precedent has been recognized as a source of law in the history of Vietnamese law Pre -1975 period: Even during the French colonial period, the precedent was considered a source of law, playing a relatively important role in explaining and supplementing the law, based on the principle documents of Administrative court or judicial court By the feudal period, the the precedent existed in the form of judgments, projections, editions, orders of the king 14 In the period of the Northern progression to build socialism, there are many documents acknowledging the existence of such law: Circular No 442 / TTg of January 19, 1955 of the Prime Minister The period from 1975 to before 2004, during this period, the concept of the precedent was hardly used officially in legal books and newspapers, but was only discussed in academic research From 2003 to before 2014 : In 2003, the Supreme People's Court regularly selected and announced the cassation decisions of the Supreme People's Court Judges or publicized the judgments in the manual Judges on many mass media channels as well as summarizing documents on annual professional guidance At this time, the use of the judgments that are publicized in legal practice is still a reference only in the process of researching and resolving cases that are not legal grounds for trial However, this is a seed for the recognition of precedents in Vietnam 3.1.2 Practices to build and apply criminal precedent for the period from 2015 up to now Development of precedents in general, criminal precedent in particular is one of the key tasks of judicial reform in our country today The National Assembly assigns the Supreme People's Court to carry out this important task To date, there have been 26 precedents published, including 04 criminal precedents Although the number of precedents was promulgated modestly, it demonstrated the high political determination of the Supreme People's Court in developing the case Since its publication, the first 26 precedents have actually come to life, judged by the Judges, applied in practical practice and highly appreciated by the public 3.2 Evaluate practical construction and apply criminal precedent 3.2.1 Achievements and causes in the construction and application of the criminal precedent * Achievements in building the precedent and preparing for the application of the criminal precedent Firstly, the Party and the State have paid attention to leadership and direction on developing lawsuits in general and criminal precedent in particular This is the guideline, the right direction is acknowledged by the society Secondly, the Supreme People's Court has created the premises for the recognition and application of general law and criminal precedent in particular in Vietnam Thirdly, the policy of developing the legal case has been institutionalized in the 2013 Constitution Fourthly, the Supreme People's Court has issued a process to build a lawsuit in general, a criminal precedent in particular 15 Fifthly, the Supreme People's Court has issued 04 criminal precedent, contributing to completing gaps of the law in general and criminal precedent in particular * Results achieved in preparation for the application of the criminal precedent Since the first the precedent has been published so far, according to the survey results, criminal precedents have not been implemented in the practical trial ( Appendix 05 ) However, the preparation of conditions for the effective application of the criminal precedent in the coming time is also the initial, very important achievements, as follows: Firstly, develop guidelines to apply the the precedent Secondly, issue a Resolution guiding the writing of criminal sentences Thirdly, the organization put content on the precedent into training programs Fourthly, organize a 3-year summation conference on the construction and application of the precedent in Vietnam * Causes of achievements Firstly, the Party, the State and the Supreme People's Court have been aware of the importance of the position and role of the general the precedent, the criminal precedent in particular in the construction practice and the application of law Secondly, the Supreme People's Court has actively and positively implemented the Party and State's views on building precedents 3.2.2 Limitations and causes in the construction and application of the criminal precedent a 3.2.2.1 Limitations in the construction and application of the criminal precedent * General limitations of both the construction and application of the criminal precedent Firstly, the construction of the criminal precedent is still limited in both quantity and quality Secondly, research activities on criminal precedents have not been focused on implementation * Limited construction Firstly, there is no agreement in the provisions of the Constitution and the law on construction of the criminal precedents Secondly, there is no separate process for selecting, announcing and applying the criminal precedents while the process of selection, publication and application of precedents is generally too tight Thirdly, the quality of the judges' trial of criminal cases still exists certain limitations on professional qualifications, 16 qualifications and professional qualities, which greatly affects the quality of judgments Criminal (source to develop criminal precedent) Fourthly, the quality of writing judgments and decisions of courts at all levels has some limitations * Restrictions on the application The Criminal Procedure Code 2015 has not yet recognized the application of the the precedent in trial but only recorded at Point d, Clause 2, Article 260 "The Judgment of the Trial Panel must analyze the evidences determined to be guilty or not just determine not guilty, determine whether the accused is guilty and if the accused is guilty, what is the point, clause, article of the Criminal Code and other legal documents applied?, aggravation, extenuating criminal liability and how to handle it If the accused is not guilty, the judgment must clearly state the grounds for determining that the accused is not guilty and resolving the restoration of their honor, legitimate rights and interests according to the provisions of law; “And Point b Clause Article 260 is" Summarize the content of the case, decide in the first instance judgment; content of appeals and protests; judgments of the Appellate Trial Panel, grounds for accepting or not accepting appeals and protests; points, clauses and articles of the Criminal Code and other legal documents which the Appellate Trial Panel shall base on to settle the case; " 3.2.2.2 Causes of limitations in the construction and application of the criminal precedent * The general cause of limitations in the construction and application of the criminal precedent The cause of the above limitation is that: Firstly, Vietnam is still in the first phase of the experimental process of building and applying the precedent, so there are limitations that are inevitable; secondly, the theoretical research on the precedent in general and criminal precedent in particular in Vietnam is still modest; Thirdly, the practice of constructing and applying the criminal precedents still has unified views As a result of the application of common law, criminal precedents in particular still have the above limitations * Cause of limitations in construction In addition to the general causes of limitations in the formulation and application of the criminal precedents as mentioned above, the specific limitations are Firstly, there has not been a separate Resolution on the process of selecting criminal precedents, because criminal precedents have their own characteristics Secondly, not defining specific criteria for the selection of the sentence can become a the precedent 17 Thirdly, currently the scope of the criminal precedent has not been clearly defined (criminal precedent on the content and criminal precedent on proceedings and civil liability in criminal precedents) makes the lack of facilities in selection of the criminal precedent * Cause of limitation in application Firstly, there are no mandatory regulations for criminal precedents Secondly, the application of current law is still limited due to the limited number of the criminal precedents Thirdly, the skills of subjects applying the criminal precedents are limited Fourthly, in addition, the guidance on the application of the precedent still has certain limitations, according to Resolution 03, the the precedent in general, the criminal precedent in particular still has no compulsory provisions Conclusion of Chapter The Resolution No.03/2015/NQ -HDTP dated October 28, 2015 Regarding the process of selecting, announcing and applying the precedent regulating the construction and development of precedents in general, but no process has been developed setting up and applying the criminal precedent The construction and application of the criminal precedent in Vietnam today is still conducted through a very strict process from reviewing, detecting, proposing and developing a judgment to collecting opinions, private questioning, approving and announcing legal proceedings according to the general process of the resolution 03 The application of the criminal precedents must also comply with the principles of the 03-judgment resolution to ensure constitutionality, legality and security ensuring uniform application in the practical application of law Practical research on the construction and application of the precedent is important for doctoral researchers to point out the characteristics and results of the formulation and application of the criminal precedent in Vietnam today On the basis of analyzing the achievements and limitations, the causes of limited achievements in the formulation and application of the criminal precedent in Vietnam today, from which researchers can propose suitable solutions to improve the effectiveness of the formulation and application of the criminal precedent to contribute to completing the law, uniformly applying the criminal precedent and especially applying the law in adjudication of the criminal precedents In Vietnam today, ensuring human rights, fair protection, justice 18 Chapter REQUIREMENTS AND QUALITY IMPROVEMENT SOLUTIONS CONSTRUCTION AND APPLICATION OF CRIMINAL PRECAUTIONS IN VIETNAM 4.1 Requires construction and development of the criminal precedent 4.1.1 Request to unify the awareness of the policy of the Party, State and the court system on the construction and application of the criminal precedent In the coming time, it is necessary to continue grasping the views of the Party and the State on developing lawsuits in general and criminal precedents in particular Need to build and complete the legal basis for the issuance of the criminal precedent Specifically, it is necessary to supplement the provisions of criminal procedural law on the legal value and principles of application, the citation of the criminal precedent in criminal trial On that basis, to build a Resolution of the Supreme People's Court Judges on the process of issuing and applying the criminal precedents, in which specific criteria for decisions and decisions are specified Can be selected, recognized as Criminal precedent Selection process for criminal precedent 4.1.2 Unifying the awareness of the criminal precedents in practical application of the criminal precedent This requirement aims to ensure the unity of awareness of the criminal precedents in trial activities, in order to ensure the uniform application of the precedent in general and the application of laws in particular in judicial activities However, the criminal field has its own principles, especially the principle of innocent speculation, the principle of socialist legislation The recognition of the the precedent is a source of the criminal precedent that is not uniform Therefore, recognizing the positive role of the criminal precedent as well as using criminal precedent as a source of law is still very new Once a criminal precedent is recognized as a criminal precedent source besides legal documents, there should be a legal basis for this There must be a change in thinking when applying the criminal precedents to trial of criminal cases It should be noted that criminal precedent is the result of legislative and operational activities that apply the law, in particular the trial of criminal cases of the Court In other words, it is the crystallization of theory and practice of law application So, the Supreme People's Court should provide professional guidance in a way that requires the Judges, Assessors at all levels to consult and cite criminal precedents as a secondary source of law when 19 making judgments on matters that the law writings are not clearly defined, or actions en, circumstances also have different interpretations 4.2 Solutions to improve construction quality, apply criminal precedent 4.2.1 Raise awareness about some specific contents of the criminal precedents * Raise awareness of the criminal precedents Firstly, consider the possibility of recognizing cases that create mandatory rules of conduct as a new norm Secondly, it is necessary to specify what is the content of the criminal precedent and present it in the most honest way Thirdly, perceived value of the criminal precedent, applied to adjudicate similar cases Fourthly, to raise the general awareness of the role of training, compensation, scientific research at law, vocational training institutions and Criminal precedent research institutions Fifthly, impact the perception of the criminal precedents on all subjects in society to bring the the precedent into life 4.2.2 Completing the provisions of the Constitution and criminal precedent on the application of the criminal precedent Firstly, it is necessary to amend the regulation on the jurisdiction to explain the law in the 2013 Constitution Secondly, perfect criminal precedent in one of two directions: (i) amending and supplementing Article 260 on criminal precedents (ii) or a written instruction explaining the provisions of Article 260 on the application of the criminal precedent Thirdly, it is necessary to complete the legal regulations on the process of selection and publication of precedents 4.2.3 Improving the quality of the judges in trial of criminal cases at all levels Firstly, when conducting a specific Criminal precedent trial, the Judge will study the precedent judgments of similar cases Secondly, compliance with criminal precedent restricts arbitrariness and negativity in the trial process in general, adjudication of the criminal precedents in particular, increases the reputation of judges and courts at all levels and increases the solemnity of the judgment or decision that has been enforced, promoting the justice of the Judge Fourthly, there should be reasonable provisions on the term of the Judge Thirdly, the Judge has the motivation to really improve the level, in the process of understanding and studying the judgments, to study 20 legal science in a methodical and scientific way to identify and solve Criminal judgments with new facts, acts or legal events 4.2.4 Promulgating a separate process for building criminal precedents In the coming time, it is possible to refer to the following methods to review and select the precedent in general and criminal precedent in particular: The first method, review and selection later The second method, choose now 4.2.5 Studying and developing textbooks and documents on criminal precedent in legal research and training establishments * For legal scientific research activities, develop curriculum materials for criminal precedents Encouraging and motivating the authors with research topics, indepth research projects on the use of the precedent in general, criminal precedent in particular in the training programs This study will help learners and researchers to approach and practice common learning methods in advanced education, such as case studies Through approaching and studying these the precedent, learners have a better understanding of theoretical knowledge, legal knowledge and legal regulations at the same time through more self-study and advanced self-study activities jurisprudence thinking, skills to solve intensive practical problems from the perspective of judges, lawyers, prosecutors * For training and retraining of the criminal precedents * Increasing the use of the precedent in law training programs at university and postgraduate levels of law * For professional training and retraining activities for Judges Conclusion of Chapter On the basis of fully grasping the Party's views and guidelines on judicial reform, with proper awareness and high political determination, the Party Committee of the Supreme People's Court Party actively and positively Declaring the research and development of the Case Development Project of the People's Court Accordingly, the Supreme People's Court issued the Resolution No 03/2015 / NQ -HDTP dated October 28, 2015 on the process of selecting, announcing and applying the precedent This process is common for the precedent in different areas such as Criminal, Civil, Administrative However, in practice of building and applying the criminal precedents, there are still shortcomings in construction setting up and applying the criminal precedent in Vietnam today as the number of the criminal precedents is still very limited, only 04 criminal precedents have been issued, besides 21 there are no criminal precedents in trial To overcome these limitations, the thesis proposes a number of solutions to improve the quality of construction and apply the the precedent in general and criminal precedent in particular That is, raising awareness of the criminal precedents; focus on legal research activities, improve the quality of professional training and retraining on the precedent; improve the quality of trial and quality of criminal judgments of courts at all levels; completing the provisions of law on precedents and criminal precedents; promulgating separate procedures for order, procedures and scope of selection, publication and application of the criminal precedent 22 CONCLUSION The dissertation clarifies concepts, characteristics, roles and processes of recognizing criminal precedents and experiences from a number of countries under the Common law and Civil law system i) Common criminal is a the precedent, contains the arguments to explain and clarify the behavior, circumstances are prescribed by the criminal precedent in the judgment, deciding criminal has legal effect, be recruited and issued according to the procedures prescribed by law, valid for uniform application in trial of criminal cases with similar legal events later ii) The role of the criminal precedent: Firstly, the recognition of the criminal precedents in trial contributes to the enhancement of the principle of equality before the law; Monday, contributing to concretizing the meaning of abstract criminal precedent provisions through explanation of laws; Thirdly, ensure the stability of the criminal precedent through unified interpretation and application of laws, iii) Experience in building and applying the criminal precedents of Britain, America, France and Germany to Vietnam : Firstly, acknowledge the role of the precedent in the legal system The precedent becomes an indispensable part to supplement and support the legal system in these countries; Secondly, each country recognizes the principles of applying the the precedent in accordance with its legal system; Thirdly, many new requirements are imposed on the Judge who has the authority to issue a the precedent and the Judge of the lower courts uses the the precedent The dissertation has studied the theory of the criminal precedent, Criminal precedent construction On that basis, the dissertation analyzed and evaluated the current situation of building and applying the criminal precedents in Vietnam In particular, focusing on clarifying the principle of building and applying the criminal precedent, practice of building and applying the criminal precedent in Vietnam today Since then there are assessments of achievements and limitations, the causes of achievements and limitations in the construction and application of the criminal precedent in Vietnam today Giving remedy views and solutions in the formulation and application of the criminal precedent to improve the effectiveness of the criminal precedents to contribute to the uniform application of the criminal precedent in trial of criminal cases i) Principles of construction: Firstly, the principle of the legal meaning of precedents in the Vietnamese legal system; Secondly, the principle of the subject of sample judgments to develop a the precedent; Thirdly, the principle of selection criteria and procedures for review, detection, selection and publication of precedents in Vietnam ii) Principles for application of the criminal precedent: Firstly, the principle of validity of a the precedent ; Secondly, 23 when adjudicating, Judges and Assessors must study and apply the precedent to resolve similar cases, ensuring that similar cases and legal events must be resolved equally ; Thirdly, the hierarchical principle in the the precedent system; Fourthly, the principle of legal validity of the the precedent; Fifthly, the principle of invoking the precedent ; Firstly, the principle of socialist legislation; Secondly, n guyễn democratic rule Through analysis of the process of developing and applying the criminal precedents, the doctoral researcher points out the achievements and limitations that exist: i) Achievements: Firstly, the criteria for selection of the criminal precedent has been specifically defined ; Secondly, the process of selecting and announcing precedents is relatively adequate, in accordance with current conditions of Vietnam as well as in accordance with international practices; Thirdly, the cancellation of the the precedent has also been prescribed; Fourthly, 01 Criminal precedent was announced Criminal Precedent No.01/2016/AL on the "Murder" case However, criminal precedent has its own characteristics about its content, characteristics, and scope, so it is necessary to have a construction process and its own principles of application ii) Restrictions: Firstly, the number of the criminal precedent is still limited, tangle i case-law criminal built and no verdict yet criminal precedent applicable in the trial; Secondly, there is no separate process for developing and applying the criminal precedents; Thirdly, the way of writing the precedent still has limitations; Fourthly, on the subject issued the precedent; Fiftly, the law stipulates that the process of selection and publication of precedents is too strict, there is no separate process to build and apply criminal precedents ; Sixthly, about how to cite the the precedent From the practical evaluation of the construction and application of the criminal precedent, the thesis analyzes views, proposes solutions to build and develop criminal precedents i) To continue implementing the Party and State's views on construction and development of the criminal precedents and the precedent; Unifying awareness of the criminal precedents in trial practice ii) Solutions to improve construction quality, apply criminal precedent: Raise awareness of the criminal precedents; Improving the quality of judges for trial of criminal cases at all levels; To promulgate separate procedures for order, procedures and scope of selection, publication and application of the criminal precedents; Completing the law on precedents and criminal precedents; Innovate the way of writing judgments and decisions of courts at all levels as a basis for developing criminal precedents; Research, training and retraining in the precedent in research institutions, law training and professional training establishments; Research and propose judgments and decisions to develop the criminal precedents 24 THE PUBLISHED ARTICLES RELATED TO THE STUDY Nguyen Thanh Man (2018), “Improving the use of criminal legal precedents in Viet Nam” Journal of social sciences manpower, ISSN 0866-756X, No 06/2018 Nguyen Thanh Man (2018), “Increasing the use of judicial precedents in legal training course in Viet Nam” Journal of social sciences manpower, ISSN 0866-756X, No 09/2018 Nguyen Thanh Man (2018), “Some theoretical issues about construction and application of legal case in Vietnam today”, People’s court magazine, ISSN: 1859-4875, No 21, 2018 Nguyen Thanh Man (2018), “Some comments on criminal cases were announced under the decision No 269/QĐ-CA November 6, 2018 of the supreme people’s court of the socialist republic of Vietnam” People’s court magazine, ISSN: 1859-4875, No 22/2018 25 ... under Vietnam Academy of Social Sciences, No 477, Nguyen Trai road- Thanh Xuan District - Hanoi Time: … hours, date………, month……… year 2019 The dissertation could be found at: - Vietnamese National... law approaches to precedent in Vietnam by Do Thi Mai Hanh completed at University of Wollongong, Australia (2011) 1.1.2 Overview of the research situation in Vietnam 1.1.2.1 The group of research... announcing and applying the precedent in Vietnam” by Chu Thanh Quang published in the Workshop Proceedings Precedent - Theory and practice in Vietnam and some countries held at Hanoi Law University
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