Thực hành quyền công tố trong tố tụng hình sự từ thực tiễn tỉnh nghệ an astract

27 175 0
  • Loading ...
1/27 trang

Thông tin tài liệu

Ngày đăng: 25/04/2017, 21:27

VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES TON THIEN PHUONG EXERCISE THE RIGHT TO INITIATE PUBLIC PROSECUTION IN THE CRIMINAL PROCEDURES LAW: A CASE STUDY OF NGHE AN PROVINCE Major: Criminal Law and Criminal Procedure Major code:62 38 01 04 SUMMARY OF THE DOCTORAL DISSERTATION IN LAW Hanoi - 2017 The dissertation completed at Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences Supervisors: Prof Dr Phung The Vac Dr Le ThiTuyetHoa Reviewer 1: Assoc Prof Dr Ho Sy Son Reviewer 2:Assoc Prof Dr Cao ThiOanh Reviewer 3: Dr Do Duc Hong Ha The dissertation will be defended at Graduate Academy Level Council of dissertation assessment at Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences Time: ………… date………… month…………year 2017 The dissertation may be found at: - Vietnam National Library; - Graduate Academy of Social SciencesLibrary The author’s published-papers list related to the dissertation Ton Thien Phuong (2015) The solutions on cadre work of the NgheAn People’s Procuracy to improve the quality of prosecutors’ litigation at the criminal trial, Review of Procuracy, the New Year number, pp 28-33 Ton Thien Phuong (2015) Improving the quality of litigation at the criminal trial: A case study of NgheAn province, Review of Procuracy, No 14, pp 25-29 Ton Thien Phuong (2016) The accused’s right to be defended by the Criminal Procedure Code 2015, Review of Procuracy, No 10, pp 42-45 Ton Thien Phuong (2016) Exercise the right to initiate public prosecutions of the Supreme People’s Procuracy of Vietnam in the history of Vietnamese procedure, Review of Procuracy, No 15, pp 13-16 Ton Thien Phuong (2014) Improving the quality of litigation in the criminal procedure of the Nghe An People’s Procuracy in the period of implementation of judicial reform Provincial science research project INTRODUCTION The emergency of theme In criminal procedure, Procuracy is a justice body with its function of practising prosecution right, aiming at dealing with all criminal behaviours in time, impleadment, investigation and prosecutation must be right person and right law without missing crime and making miscarriage the innocent ones Resolution No.: 08-NQ/TW dated on 2nd January 2002 by Communist Party of Vietnam about some key duties of Justice Industry in the next coming time: “Procuracy all levels well carries out function of practicing prosecution right and controls the compliance upon law in justice operations Prosecution activities must be worked out rightly as impleadment step and throughout procedurial process to ensure that missing crime and offender, making miscarriage the innocent ones are not happened ” Practising prosecution right during criminal procedure is an important and basic operation with instant and throughout of Procuracy It is hugely significant in reducing miscarriage and against missing crime Practising prosecution right in criminal procedure expresses most clearly the function, role of Procuracy and it is also the period that Procuracy must assume many duties with the hardest responsibilities Beside of achieved results, practising prosecution right in criminal procedure in Nghe An province shows out the limit, unsatisfaction with the request of society as well as requirement of current justice rennovation Missing crime or imleading the defendant and then these cases are suspended investigation due to not guilty; quantity of returned documents for additional investigation keep growing, in which some cases must be returned documents for additional investigation many times; some cases apply prevention method, especially hold in custody, or make detention without evidence One of the causes is that practising prosecution right by Procuracy is not carried out closely and effectively These limits one hand directly effect the result of dealing with cases, the other hand effect the honour, dignity and other basic rights of citizens as well as the prestige of Inspection Industry and justice bodies Over past years, the Party issued many Resolutions, Instructions related to justice; National Assembly amended, issued many legal documents, in which there were many new regulations related to function, duty of People’s Procuracy as: Constitution in 2013, Law of Procuracy Organization in 2014, Criminal Procedure Code in 2015 However, it is available many exists both theory and application practice for above regulations, asking for deep research by system, creating the legal basis for People’s Procuracy to well carry out its function, duty in criminal procedure Originating from above reasons, the author prepares the theme “ Practising prosecution right in criminal procedure from fact in Nghe An province” to be dissertation of Law Doctor at Institute of Social Sicence Purpose and duty of dissertation - Purpose: Making clear scientific theory on prosecution right and prosecution right practice from the factual of Nghe An province, since then, make the direction, method, suggestion to enhance the effectiveness of Procuracy in period of criminal procedure, meet the requirement of justice rennovation in Vietnam currently - Duty: + Analysing theorical basis on function of practising prosecution right in criminal procedure of Procuracy + Researching, analysing, valuating the status of practicing prosecution right of Procuracy two levels at Nghe An province in comparison, collation with the data of country and some typical provinces + Suggesting methods, recommendation to enhance the effectiveness of practising prosecution right activity in criminal procedure of Procuracy Objects and researching scope of the dissertation - Object of researching Within criminal law major and procedure, the dissertation focuses on researching, analysing, making clear scienctific point of view about prosecution right, practising prosecution right; the legal nature of prosecution right, practising prosecution right and application reality in relation with practising prosecution right activity in Nghe An, in comparison with data of whole country and some typical provinces; researching the orientation of th Party, and of Government to some legal innovation in general, and to Procuracy in particular; researching the legal regulation on practising prosecuting right activity of People’s Procuracy - Scope of researching Researching scope of dissertation is theorical subjects about prosecution right and practissing prosecution right; factual operation of practising prosecution right in criminal procedure of People’s Procuracy two levels in Nghe An Province, Controling legal operations of People’s Procuracy, operation of Military’s Procuracy doesnot belong to the researching scope of this dissertation The dissertation limits the factual survey in Nghe An province from 2006 to 2015, data to compare with other locals was from 2010 to 2015 Methodology and research method of the disseration - Methodology: The disseration is carried out basing on methodology of dialectical materialism and historical materialism of Maxism and Leninism, Hochiminh ideology about Government and Law; Vietnam Communist Party’s Revolution Platform on building a Government upon the rule of law under the socialist republic of people, by people and for people in our country currently; Point of view of innovating organization and operation of legal office in general, Procuracy in particular in the new period; Scientifically theoretical poits in research work, monograph books, and the articles on magazines of some scientists in criminal law of Vietnam and foreign countries - Researching method During prepare the dissertation, the author uses some methods of scientific research major as: analysis, comprehensiveness, systemization, intermajor,comparative law studies, statistic, factual survey - Indirect method of research via comprehening and analysing document, comparing researched titles with choosen objects - Using method of approaching as system, multi major and inter major, method of approaching criminal law and criminal law, method of inter – history, politic, economic - Method of statistic, systematic comprehensiveness: aiming at statistic, comparing the function connotation of practising prosecution right in history of Vietnam criminal procedure - Method of analysing, comprehensing, approaching multi majors and inter- law major: aiming at building system of concept related to practising prosecution right in criminal procedure, making clear the subject of practising prosecution right and role of practising prosecution right function in criminal procedure - Method of researching comparative law: aiming at comparing the function of practising prosecution right of People’s Procuracy in the model of Vietnam criminal procedure with prosecution office/People’s Procuracy of some typical prosecution models in the world New contribution on science of the dissertation - Systematizing and making clear more about theoritical matters of Prosecution right and practising prosecution right, the relationship between practising prosecution right and controling legal operation in criminal procedure - Analysing legal regulations of criminal procedure related to practising prosecution right of Procuracy and limits, troubles originating from the limits of legal norms Presenting research, comparing points of view, regulations on function of practising prosecution right in criminal procedure via differently historical periods and self – interference, influence each other of criminal procedure models, model of organizing prosecuting office (Procuracy) between Vietnam and some other countries in the world - Valuating the status of quality in practising prosecution right in Nghe An province, in comparison with the date all the country and some typical provinces - Explaining elements impacting to the effectiveness of practising prosecution right in criminal procedure, making clear the solutions, suggesting to enhance the effectiveness in working of procuracy in this field, meeting the requirement of legal innovation The theorical and factual meaning of the disseration The dissertation certainly contributes about science in dealing with one of the important matter of criminal procedure: enhancing the effectiveness of practising prosecution right of Procuracy meeting the requirement of fighting in prevent and against the crime and reducing victim of injustice, false The results of researching will contribute process of state machinery innovation, strengthening Procuracy system all levels and deviding clearly function, authority of procedure conducting offices in criminal procedure at steps of impleadment, investigation Universities of training law can use researching result of the dissertation for training officers, especially for training prosecutor of prosecution major Researching result of the disseration, conclusion, point of view, suggestion are built on the basis of science and fact, so Procuracy all levels can apply, explore to enhance the quality of practising prosecution right, control the law compliance during process of impleadment, investigation criminal cases Structure of the disseration Out of the introduction, conclusion, list of reference document, and two appendixes, the dissertation includes four chapters Chapter OVERVIEW OF RESEARCH 1.1 Research of practising prosecution right out of country Research on practising prosecution right in criminal procedure has been a subject that concerned by many researchers and people who are working in this field Within Chapter 1, the author has approached, researched the typical works in the world related to organization, operation of different prosecution sytem as: - The book “ Instruction on prosecuting” by Minoru Shikita, Vice president of Union of International Public Prosecutor, president of Asean fight against and prevent crime fund: monograph book by Professor Peter J Henning and Lee Radek: “The Prosecution and Defense of Public Corruption: The Law and Legal Strategies authored”; monograph book “Arbitrary Justice: The Power of the American Prosecutor” by Angela J Davis; Monograph book by Shawn Boyne: “The German prosecution service: guardians of the law?”; Monograph book "A Prosecutor's Battles Against Mafia Killers, Drug Kingpins, and Enron Thieves"; Martijn Zwiers in monograph book "The European Public Prosecutor's Office Analysis of a Multilevel Criminal Justice System"… Research works in foreign countries provide the author with overall knowledge about function, position of prosecution office in some typical countries in the world Via above documents, the author is approached, studied the way of organization and operation of prosecution offices in many different countries, the advantages and limits of specific prosecution models, since then help author the base to research and compare with function of practising prosecution right in Vietnam as well as approach overall with different point of view about the concept of prosecution right, practising prosecution right Research works in foreign countries also show the subjectvie and objective difficult of Prosecutor during finding out the justice and the truth, in the circumstance of certain polictic, society and law, the support of legal system in recovering causes of difficulties Basing on that result, the author can compare during study the status of practising prosecution right operation in Vietnam 1.2 Research works on practising prosecution right in Vietnam The dissertation assumne the overview status of researching on practising prosecution right in Vietnam upon three groups: Group of research works about legal innovation including criminal procedure operation; Group of research works about function of procuracy including function of practising prosecution right; Group of works directly research function of practising prosecution right in each certain period of criminal procedure or to a group of certain crime Research works in Vietnam approach and analyse right of prosecution, practising prosecution right in different angles, practising prosecution right in each certain period of history and valuating the reality of practising prosecution right in Vietnam These analysises continue to be valuated, commented and given out the idea and point of view of his own about concept of practising prosecution right in criminal procedure as well as making clear the status and making the solution, suggestion 1.3 The matters are not solved deeply need to be researched Due to the certain limit of time, circumstance of research, objects of research, the above works are not presented the theory about practising prosecution right in criminal procedure as well as the status and reality of application in Nghe An province systematically and comprehensively The achieved results request researchers to continues researching and developing as: About the theory: Researching about practising prosecution right throughout periods of crinimnal procedure is not full, connotation of practising prosecution right in criminal procedure is not made clearly Analysing, comparing the difference between connotation and reality of practising prosecution right in Vietnam and some countries in the world are not deep and not make clear the reason of difference In the own condition about politic, economic, society of Vietnam, applying suitable model to rise the effectiveness of practising prosecution right in criminal procedure That is a big question about theory, and it is the emergency in the current period that need to be interpreted and made clear About the research reality: Scientific works are carried out mainly focused on making clear the reality of practising prosecution right to a specific crime or researching function of practising prosecution right in the whole country There are not any works surveying and researching comprehensively, conclusively the reality under the scientific angle of practising prosecution right in criminal procedure at some specific locals (Nghe An province) About solution, suggestion: There need to build simultaneous system basing on result of researching theory and surveying the reality to improve the quality of practising prosecution right and people’s Procuracy at two levels in Nghe An Conclusion of Chapter Chapter of the dissertation has approached and researched the basic content in some scientific works of the scholars or people who representatively work in the law industry in some typical countries as United States, United Kingdom, Federal Republic of German, and other European countries In which, the dissertation concentrates on studying deeply into the main theory of these works as prosecution system, right, duty of prosecution offices, prosecutor Via over documents, the author is approached, understood the way of organization and operation of prosecution office/ Procuracy of many different countries, advantages and limits of specific prosecution models to get the basis for research, comparision with function of practising prosecution right in Vietnam from Research works in Vietnam have approached and analysed prosecution right, practising prosecution right at different angles, practising prosecution right in each certain history period and estimating the reality of practising prosecution right in Vietnam These scientific works are premise of important theory, reality for the author to inherit and develop with filtering suitable elements, science However, the contents have not been mentioned or limited in the scientific works are the questions that the disseration must dealed as: deeply research on practising prosecution right throughout periods of criminal procedure; presenting systematically and comprehensively the theory of practising prosecution right in criminal procedure as well as the status, reality of application in Nghe An province Overview of researching is an important base for keeping dealing with the core of theory, reality as well as making solution to improve the quality of practising prosecution right in criminal procedure in Nghe An province On 28 June 1988, at the third meeting of National Assembly term VIII passed the first Criminal Code of Vietnam The Criminal Code in 1988 regulated the sequence, procedure of introducting of instance, investigating, prosecuting, going on trial and executing criminal cases; function, duty and right of procedure conducting offices, procedure conducting persons and procedure conducting attendants 2.2.1.3 Practising prosecution right after 1988 up to now - Criminal Procedure Code in 2003: There were many new regulations related to operation of practising prosecution right of Procuracy, shown in following contents: Procuracy did not directly deal with message, denouncement but focus on investigation offices and others who were handed over to carry out investigation, introduction of instance must be gotten the approval from Procuracy - Constitution of the Socialist Republic of Vietnam was passed on 28 November 2013 by National Assembly Term XIII being the constitutional base for overall rennovation of our country, especially, for basis rennovation on human right (chapter II), continued to record the function of practising prosecution right and controlling justice operation of People’s Procuracy at all levels, recorded the principle of adversary , creating constitutional base for rennovating overall adversarial operation in our country - Law of People’s Procuracy Organization was passed on 24 November 2014 by National Assembly Term XIII At article in Law of People’s Procuracy Organization in 2014 included concept of prosecution right practice This was the first time the concept of prosecution right practice recorđe in an offially legal document Outside, at article 12, 14, 16, 18 of this Law regulated specifically the content , duty of prosecution right practice in period of dealing with message, denouncement; introduction of instance, investigation, prosecution, and trial - On 27 November 2015, National Assembly passed new Criminal Code with many important changes as: Adding principle of adversary at the criminal court; Dividing clearly legal administration right; increasing right and responsibility for Investigator, Prosecutor, Judge ; Enlarging litigation attendants; Adjusting concept of evidence, source, collecting evidence; More closely dealing with evidence This was the importantly legal base for development, completion of organization and operation to Procuracy system at all levels during process of rennovating justice, building legal system of document in relation 10 So, forming system of People’s Procuracy is a historical process, from prosecution office belonging to Court to prosecution office belonging to Government, until 1960 when People’s Prosecution Industry was established Over the time, the awareness and way of organization, Practising prosecution right in each period of history was different but one easy thing to recognize that operation of prosecution right practice has been becoming basic function of people’s prosecution industry, important element in preventing miscarriage, missing crime and crime right in itself industry 2.2.2 Overview of practising prosecution right in some countries in the world The dissertation appoaches, researches operation model of offices where carry out the function of practising prosecution right in some typical countries in the world including: Organizing prosecution right practice upon the tradition of legal precedent as United Kingdom, United States; Organizing, carrying out the prosecution right in some countries upon tradition of continetal law as: Republic of France, Federal Republic of German; Organizing, carrying out the prosecution right im some Asean countries as China, Japan, Malaysia Based on that to take the conclusion: Countries in the world depend on feature of legal politic, history, tradition and culture, model of state organization, and operation of differently legal offices, so organization and operation of prosecution office are varifiable Conclusion of Chapter Prosecution right practice is basic function of Procuracy, itt is recorded at differently legal documents However, concept, connotation as well as scope of these functions are recorded at many levels and gradually completed upon time In Chapter 2, the author presents concept of prosecution right, Prosecution right practice and procuratorating legal operation in general, prosecution right in criminal procedure in particular, making clear legal nature, relation between presecution right practice and procuratorating legal operation; process of forming, developing function of prosecution right practice of People’s Procuracy in the history of criminal procedure, making clear the regulations of currently criminal procedure law related to this field Besides, the disseration also presents basic contents about organization and practising prosecution right practice at some typical countries in the world as: United States, Federal Republic of German, Republic of France, United Kingdom, China, Japan, Malaysia 11 So, Chapter researches the most basic contents of prosecution right and prosecution right practice in criminal procedure, features in organization, operation of prosecution right practice in some typical countries in the world and history of forming, developing function of prosecution right practice in Vietnam The above research result is an importantly scientific base for discovering, valuating right the reality of People’s Procuracy in this field Chapter LEGAL REGULATIONS AND REALITY OF PROSECUTION RIGHT PRACITCE OF PEOPLE’S PROCURACY TWO LEVELS IN NGHE AN 3.1 Legal regulations on practising prosecution right in criminal procedure In this part, the author makes clear the regulations of Criminal Procedure Code in 2003, with the reference, analysis, comparison with new regulations of Criminal Procedure Code in 2015 relating to function of practising prosecution right of Procecuracy in different procedure periods as: - In the period of dealing with message, denouncement and prosecution suggestion: Approval, disapproval the emergency arrest warran, sequestration extension; Cancel sequestration decision, and other illegal dicision; Making request of checking, verifying and asking the authorized offices to carry out; Cancelling decision of suspension decision in case the suspension decision deals with message without evidence - During prosecution, investigation criminal case: Making decision criminal case; changing, adding prosecution decision; Cancelling prosecution decision of criminal case; Approval, cancel prosecution decision of the defendant, ask for change, adding prosecution decision of the defendant or directly launch above decision; Making request of investigaton and ask Investigation Office to carry out; Directly investigate if necessary; Request Chief of Investigation Office to and Investigator; Decision of application, change or cancel prevention measure; Practising prosecution right in the indictment period; Interrogate the defendant, questionnize the witness, the victim, confont - During indictment period: Return document to additional investigate; Decide to suspend the case, the defendant; Decide to postpone the case, the defendant; Issue indictment sheet to the defendant 12 - During trial period: Withdraw the indictment decision: State the indictment or decision of prosecution upon the brief procedure, other decision about accusing defendant at the trial; Interrogation; Arraignment ; Negotiation; Repartee; Protest against legal judgement or decision of Court 3.2 The reality of practising prosecution right in criminal procedure of People’s Procuracy two levels in Nghe An 3.2.1 The advantages People’s Procuracy of Nghe An Province has many specific solutions to improve the quality of practising prosecution right in criminal procedure, creating positive metamorphosis, quality of prosecution operation is improved more, wrong impleadment and missing crime gradually are limited The results are available: 3.2.1.1 In the process of dealing with message, denoucement and impleadment suggest Total of arrested and sequestrated persons are big quantity, the statistic data show out that the total of requestrated persons were 26.049 within 10 years ( from 2006 to 2015) in the area of Nghe An province In which, two levels procuracy found out that there were many people who were arrested and sequestrated without evidence and illegally or unnecessarily and disapproved of arresting 12 emergency cases, disapproved of extending requestration 12 cases, canceled requestration and released 07 cases So, with big volumne of work but basically Procuracy at all levels carried out its function of prosecution right practice, discovered in time cases of requestrating without evidence and illegally, contributing to reduce the miscarriage and preventing missing crime in criminal procedure, adjusted the fault right at the beginning of authorized offices to ensure the human right, right of citizen which were regulated in Constitution 3.2.1.2 Practising prosecution right in period of investigation criminal case - Practising prosecution right to criminal impleadment decision, late impleadment cases or deciding not to implead the criminal case During the period from 2006 to 2015, People’s Procuracy two levels in Nghe An province asked for impleading 188 criminal cases, cancelling imleadment decision and making decision to implead 24 cases Corresponding with the above data were 202 cases of preventing missing crime All the above cases of impleadment request or Procuracy directly impleaded with the evidence and legally 13 - Practising prosecution right to impleading the defendant Quantity of the acccused yearly in Nghe An was high, within five years from 2011 to 2015, People’s Procuracy two levels in Nghe An were impleading 20.683 the defendant correlatively, they were the data for Procuracy to research, make the decision to approve or cancel, requested to implead 225 the defendant So, if without final “gate” – approval step from Procuracy there were many cases of being impleaded,investigated unjustly or missed the crime -Approval, disapproval the custody, the sequestration, cancel the custody or request to sequestrate the defendant Over 10 years, People’s Procuracy at two levels in Nghe An approved to put in temporary detention, take into custody 13.014 cases, besides, disapproved to put in temporary detention 18 cases and take into custody 32 cases and asked for taking into custody 07 cases The above datas show that People’s Procuracy at two levels are determinedly in applying or not applying measure of custody prevention 3.2.1.3 Resutl of practising prosecution right during prosecution During prosecution, Procuracy carries out prosecution right practice with many similar rights as the investigation period, outsides, Procuracy carries out some operations of prosecution right practice specifically as:Procuracy directly makes decision to implead the defendant; issues the indictment to prosecute 10.350 cases with 19.691 the defendant; makes the decision to postpone 91 cases with 154 the defendant 3.2.1.4 Practising prosecution right during on trial Interrogating of Procuracy at the trial was more and more positive, initiative; Quality of accusation of Procuracy was improved more and more; Almost cases were prepared outline, researched document carefully before attending the trial Preparing the draft of accusation was prepared very carefully from 2011 to 2015, Procuracy two grades in Nghe An prepared the draft of acccusation and presented at the trial about 10.177 versions of accusation at the criminal magistrate’s trial; confronted, negotiated at the trial Protesting against the appeal 40 cases with 64 defendants 3.2.2 The limits, existence Besides the achieved results, practising prosecution right in criminal procedure of People’s Procuracy is still limited and existence via follơing contents: 14 - Effectiveness of prosecution right practice in dealing with message of denoucement was not high Hight quantiy of persons were arrested urgently but released right after due to lack of evidence to implead, deal criminally; The cases of being in custody, sequestration extension without evidence (28 cases) - For the cases without criminal impleadment, although Procuracy all grades try its best to limit missing crime, the effectiveness is not good as desire There are still many cases of offending in the fact, authorised offices or officers grasps the cases but these case are not handled, dealed with criminally - Operation of practising prosecution right to decision of impleading defendant is still limited, missed, cases of approving impleadment with lack of evidence, illegality so these cases are postponed to investigate due to the innocent (02 cases) - Prosecution right practice during investigation is still limited by the cases are returned document for additional investigation Over years, People’s Procuracy two grades in Nghe An has returned document Investigation Office to additional investigate 111 criminal cases Quantity of returned documents yearly reflect the quality of practising prosecution right with limit, many cases have returned document for additional investigation many times, lengthened the time of dealing and waste time and waste money, effect the right of the arrestee, the defendant, and the victim - Prosecution right practice is still limited, some cases with the draft of accusation by Prosecutors are not satisfactory with the requirement, cursory, the outline is not good, judgement and suggestion are not enough, incorrect Prosecutors are embarassed and unclear in presentation skill of the accusation, the intonation, eloquent ability, explaination are not fluent, so it is difficult to understand and convince the listener 3.2.3 The cause of limit and existence 3.2.3.1 Subjective cause - Limit on the qualification, conciousness of some officiers, procuracies - Awareness and responsibility of some prosecutors who are handed over practising prosecution right are not good Some prosecutors are initiative to avoid the cases with vindicator or contest, claim innocent, complicated cases, different point of view - Limit in management, leading, execution of People’s Procuracy all grades 15 3.3.2.2 Subjective cause Litmit in training, cultivating personel - Training system exists many insufficence, training program at law universities as well as training centers belonging to prosecutorial Industry are not available subject of adversarial skill, skill of questionizing, skill of confront and skill of eloquence - Compensation and factility investment into Prosecutorial Industry are not equal to responsibility that this work as well as officiers in this industry are handling Hitch about law regulation * Some regulations in Criminal Code still exist much insufficience so the application reality is not united and mistakes - Some crimes in Criminal Code in 1999 did not describe clearly the sign of subjective behavior which obstacle to define the crime as: subjective behavior of “incite or help others suicide” (Artile 101), “intentionally harm the health of others” (Article 104), “Extortion of property” (Article 136), “Possess the fortune inconsiderately” (Article 137), “Steal of property” (Article 138) These limits were not amended in Criminal Code in 2015 - Some articles of law did not describe the mistake in crimes which cause the application discrepanctly Criminal Code in 2015 had important amendment, addition but many articles of law in name of crime and basic configuration did not express clearly mistake, for example, Article 240 “Spreading infectious epidemic to human” regulated dimly for mistake so it could be understood as intentionally spead infectious epidemic (intentional mistake) and could be understood as incidentally spead infectious epidemic (incident mistake) - Some articles of law in Criminal Code in 1999 did not regulate to distinguish the offence in some of crimes which had the similar criminal configuration, so the reality of application was difficult and obstacle For example: Smuggling (Article 153) and illegal transporting goods via borders (Article 154); Customer deceit (Article 162), Lying people to get property (Article 139) with other crimes to possess the property by other trickery These limits were not amended in Criminal Code in 2015 - Article 23 of Criminal Code in 1999 regulated about the time of bringing into criminal account, but it only regulated the starting time effectively when the crime happened without finishing time: When impleading the case, impleading the defendant or when trial; time of suspending investigation of the case, the defendant included the time of 16 bringing into criminal account or not; the time of case was lengthened due to returned document, due to cancel the case many times were included in time of bringing into criminal account or not These matters still were not amended in Criminal Code in 2015 and Amendment Draft, supplemented some articles of adjusted Criminal Code in 2015 * Obstacle in applying advantegous details for the defendant, arrestee, convicted person when Criminal Code in 2015 and law of amendment and upplement some articles of Criminal Code in 2015 were not effective Conclusion of Chapter Over past years, practising prosecution right in criminal procedure two levels changed rapidly and reached positive results Via comparison with some typical provinces as Thanh Hoa, Da Nang, as well as the average data in the country show that: Working volumne of People’s Procuracy two levels in Nghe An was much more, however important contents as disapproval of sequestration extension, disapproval of impleading the defendant, cancelling decision of impleading the defendant, protesting the criminal case reached higher than the general average of country The above results not only contributed to make sure the human right and citizen right in criminal procedure but also played an important role protecting law, ensuring the strictness, equality of the law However, besides the results, operation of prosecution right practice and impleadment control, impleading the defendant of People’s Procuracy were exposed the weakness overtime; Effectiveness of dealing with message, denoucing the criminal in some locals were not high, there were cases of missing criminal; And there were cases of unjustly impleadment but Procuracy did not find out in time; Quantity of returned document for additional investigation were high; Adverserial operation at the trial did not meet the requirement of legal rennovation, Cause of the above limits, existence could be comprehensed into basic groups, they are: from the limited qualification, conciousness; from the responsibility of officers, Prosecutor; from execution operation and officer organization, from the legal system Searching, making clear the reality, determining rightly the causes are important base to build orientation as well as making the solution to recover the above limits and existence 17 Chapter REQUEST AND SOLUTION TO ENHANCE EFFECTIVENESS OF PRACTISING PROSECUTION RIGHT IN CRIMINAL PROCEDURE FROM THE REALITY IN NGHE AN PROVINCE 4.1 Requested to enhance the effectiveness of practising prosecution right in criminal procedure from the reality in Nghe An Province The dissertation has researched, analysed clearly the contentss of 05 directions for process of carrying out solution to enhance the effectiveness of practising prosecution right in criminal procedure 4.2 Solutions to enhance the effectiveness of practising prosecution right in criminal procedure from the reality in Nghe An province 4.2.1 Solution group about organization and personnel 4.2.1.1 Strengthened the organization, machinery of industry Including many different contents to deploy regulations in Law of People’s Procuracy Organization in 2014 as below: - Established and strengthened the regulation of organization structure of Senior People’s Procuracy, organization of People’s Procuracy Organization at district level - Carried out right the regulation of recruiting Prosecutor, selecting and appointed Prosecutor - Used to carry out personnel planning to create the personnel source for imminent duty as well as long time of this industry - Concentrated on training, cultivating young Prosecutor, key Prosecutor, created good condition for young personnels to get chance, environment to exercise, challenge and develop 4.2.1.2 Carried out simultaneously different solutions to enhance professional quality, capacity and awareness, profesional etiquette of personnel, Prosecutor team - Carried out well recruitment, plan, appointment, arrangement and use personnel, Prosecutor - Carried out well review, morality, lifestyle, qualification, capacity of Prosecutor team Launched and carried out effectively movement of self –study, selfresearch, self – exercise of Prosecutor team to meet the requirement of building Prosecutor team “impregnable on politic,good on profession, master in law, equality and competence, discipline and responsibility” 18 - Strengthened training, taking the experience for Prosectuor team - Yearly, People’s Procuracy at province organizes competition to exercise, improve adversarial skill of Prosecutor at the trial as: Test of writing indictment, test of writing and representing accusation 4.2.2 Carried out well function of practising prosecution right, controlling legal operations during impleadment, investigation, prosecution, going on trial the criminal case - Improved quality of controlling and practising prosecution right in dealing with denouncement, message about criminal and impleadment suggestion - Improved quality of practising prosecution right and controlling the legal compliance - Strengthened the role, responsibility of Prosecutor in practising prosecution right and controlling criminal cases 4.2.3 Solutions of enhancing effectiveness of coordination between procedure conducting Offices - Strengthened the coordination to deal with message, denouncement and impleadment suggestion - Strengthened the coordination to deal with criminal cases 4.2.4 Strengthened the role of leading of Director of Procuracy all levels In order to well carry out this solution, leader of Procuracy all levels need: Participating directly into importance control to make sure that legal decisions are issued correctly, legally and with bas ; Strengthened more management in practising prosecution right and control legal operation at each level; Strengthened personnel management 4.2.5 Solutions in strengthen leading of the Party In order to strengthen leading of the Party, it is neccessay to carry out well following contents: Grasped the advocate, direction, policy of the Party about legal rennovation to personnel, Party member; The Party leads justice offices via personnel organization, especially leads to build and consolidate the machinery of industry; Leading planning, training, cultivating, promoting, managing key personnel team; local Executive Committee of the Party leads to coordinate between legal offices, recover the closet, the partial, between justice offices and other state offices, with social politic organizations and public media in preventing and fighting against crime 19 4.2.6 Solution, suggestion about facility - Urgently suggested to build headoffice for units without headoffice - Repaired, remoulded headoffices which are downgraded seriously; - Provided, supplemented for Prosecutor team of People’s Procuracy all levels with necessary equipment as: Compute with internet for Prosecutor to update information via internet and search for new legal document; camera, record mean, photograph servomg for controlling scene examination, death examination 4.2.7 Making sure the compensation and benefit package and improve the effectiveness of awarding and disciplining - Rennovated compensation and allowance basing on the specify of work, responsibility and pressure of work that Prosecutors are facing everyday, ensured all so that they feel safe to work well, their best to learn, cultivate professional knowledge and skill - Used to filter, solve strictly the violators, individualize the responsibility of individual as: force to reimburse, public appologize, discipline in working, discipline in the Party in cases of injustice 4.2.8 Solution about completing lawt Based on concluding all the real obstacles, we suggest to suplement, amend some regulations at Criminal Code in 2015 in Law of Amendment and Supplementary some articles of Criminal Code with following contents: - Regulated clearly subjective details of elements that constitute the crime, but matters are difficult to prove in the fact shall not be regulated - Described signal of subjective behaviour to distinguish some criminals with similar behaviour as: Smuggling (Article 188) and illegal transporting goods via borders (Article 189); Customer deceit (Article 198), Lying people to get property (Article 174) with other crimes to possess the property by other trickery Described clearly the sign of subjective behavior which obstacle to define the crime as: subjective behavior of “incite or help others suicide” (Artile 131), “intentionally damage or harm the health of others” (Article 134), “Extortion of property” (Article 171), “Possess the fortune inconsiderately” (Article 172), “Steal of property” (Article 173) - Described mistake in specific crime to avoid differently legal conciousnes and application - Amended Article 27 Criminal Code in 2015 regulated about the time of bringing into criminal account, hence it regulated clearly that the 20 finished time to be in effect was from impleading the defendant Regulated clearly time of suspending the case, suspending the defendant but without related to that defendant (without playing truant and without having the wanted notice) were caculated to be effective; Time of investigation, prosecution, going on trial was lengthened due to cancelling many times, so these cases would not be caculated in to effect of bringing into criminal account - In the foreseeable time, when Criminal Code in 2015 is not effective as well as Law of Amendment and Supplementary of Criminal Code in 2015 was not issued, it is necessary to review, supplement and instruct more specifically about advantageous cases for the defendant, the arrestee; Instructed to apply details belonging to antecedent, previous conviction and offence of the defendant, arrestee in cases that previous behaviours were considered as criminal but new Criminal Code does not regulate as criminal; Determining previous conviction and offence to apply accusation and penalty but Criminal Code in 2015 does not consider to be criminal or lack of basis to determine relapse, dangerous relapse is complicated matters, especially during appplication into specific articles of law Conclusion of Chapter The increase and complicated development of criminal status as well as the limits, difficulty, obstacle in practising prosecution right in criminal procedure People’s Procuracy request to have a simultaneous and suitable solution to improve quality, effectiveness operation of Procuracy in this field Within the dissertation, the author presents groups of basic solution as: Group of organization and personnel; Carried out well function of practising prosecution right, controlling legal operations during impleadment, investigation, prosecution, going on trial the criminal cases; Solution of enhancing effectiveness of coordination operation between procedure conducting offices; Strengthened the leading role of Director of Procuracy all levels; Strengthened the leading of the Party; Suggested facility; Ensured the compenstion and benefit package and improve the effectivenes of awarding and disciplining; Completing instruction documents of Criminal Code and Criminal Procedure Code Thesse solutions and suggestions of the dissertation are built on the basis off researching theory and comprehensing factual, conten of solutions are specific and feasible 21 CONCLUSION Prosecution right, prosecution righ practice are not new matters about theory, but until now, point of view, conciousness of researchers, scholars and persons who work directly work in the industry are different all concept, connotation, scope However, in full view, points of view of research agree that prosecution righ, prosecution right practice always are major, basic functions of procuratorial industry, throughout the time of forming, developing, the role, position as well as recored in legal document have been changed certainly, People’s Procuracy always carry out its function with the closed connection, interchange, support with controlling during procedural process Carried out the advocate of justice rennovation, in which decrees led by the Party almost emphasize on carrying out function of practising prosecution right of People’s Procuracy, researching theory of contents related to prosecution right and practising prosecution right of People’s Procuracy are important Legal works of researching theory about prosecution right and practising prosecution right are the importantly theorical basis to rennovate the machinerry, legal system in relation On the other hand, the factual of organization and operation of this industry are precious document source in the process of researching matters related to theory of prosecution right and practising prosecution right Within the title, the disseration has researched relatively overall the theory of prosecution right, practising prosecution right as well as the factual of practising prosecution right in Nghe An province, on that basis, we can take some main judgement as: The dissertation has made clear conceptss of prosecution right and practising prosecution right, criminal procedure, relationship as well as legal nature between prosecution right practice and legal operation contrtol in criminal procedure Concepts, judgements are presented basing on researching, confronting, refering different scientific works to give out the judgement, own point of view Using method of historial materialism, analysis, comprehensing the dissertation makes clear process of forming, developing system of People’ Procuracy all levels, organization and operation of prosecution right practice in differently historical periods since the first days of establishing the Socialist Republic of Vietnam until now On the basis of analysis, comparison, comprehensiveness, the dissertation also learns about the organization and operation of prosecution right practice of some 22 typical prosecution models in the world as: England, United States, France, German, China since then get the judgement: Function of prosecution right practice basically is similar, way of organization, name, duty, specific scope in each country are different, depending on own features of politic, history, legal culture and organization of state machinery in each country By using different methods of scientific research as: Statistic, comprehensiveness, analysis, comparison we study deeply the reality of prosecution right practice operration in criminal procedure of People’s Procuracy in Nghe An province, data of years 2006 to 2015 The results of researching show that advantages of prosecution right practice is still basic in general view Effective operation of Procuracy in this field has contributed the important part into limiting the miscarriage, missing crime,ensuring legal compliance of authorized offices in criminal procedure, protecting basic and legitimate rights of citizens However, it is subjective to admit that prosecution right practice of People’s Procuracy two levels in Nghe An still expresses limits, existence, these are originated from many differently subjective and objective causes but mainly are subjective Limits, existence are not high but when these are put in the top important position, role of Procuracy in censoring well – founded and legal element of impleadgement decisions, these mistakes leave the unforeseen consequences, it can be missing criminal and offender, or can be starting point of miscarriage in criminal procedure Consequence is not only for one individual but also belief attenuation of grassroots into the strickness, rightness of law protection offices So, enhancing quality of practising prosecution right of People’s Procuracy is an objective requirement in current period Basing on the theory toghether with surveying, summing up the fact in practising prosecution right in Nghe An province, the disseration presents clearly the requirement, direction and solution to improve operation effectiveness of People’s Procuracy in this field, including basic groups of solution as below: - Carried out simultaneously many different solutions to improve quality, professional quality and awareness, professional morality of personnel team, Prosecutor including: Carried out well recruitment, planning, appointment, arrangement and personnel usage, Prosecutor; Carried out well review, quality rating, qualification, capacity of Prosecutor team 23 - Carried out well the function of practising prosecution right, controled legal operations during impleadgement, investigation, prosecution, going on trial the criminal cases - Enhanced operation effectiveness of coordination between procedure conducting offices - Strengthened the leading role of Director of People’ Procuracy all levels - Strengthened the leading of the Party - Suggested solution, petition about facility - Ensured compensation and benefit package and improved effectiveness of awardness and discipline - Given solution and completed Criminal Code and other instruction documents Carried out simultaneously above solutions not only contributes to improve effectiveness of practising prosecution right in criminal procedure but also is basis for People’s Procuracy to rennovate, improve operation effectiveness in all working fields, meet the requirement of preventing and fighting against crime in current period 24 ... missing crime and offender, making miscarriage the innocent ones are not happened ” Practising prosecution right during criminal procedure is an important and basic operation with instant and throughout... of organization and operation of prosecution offices in many different countries, the advantages and limits of specific prosecution models, since then help author the base to research and compare... limit, many cases have returned document for additional investigation many times, lengthened the time of dealing and waste time and waste money, effect the right of the arrestee, the defendant, and
- Xem thêm -

Xem thêm: Thực hành quyền công tố trong tố tụng hình sự từ thực tiễn tỉnh nghệ an astract , Thực hành quyền công tố trong tố tụng hình sự từ thực tiễn tỉnh nghệ an astract , Thực hành quyền công tố trong tố tụng hình sự từ thực tiễn tỉnh nghệ an astract

Gợi ý tài liệu liên quan cho bạn

Nhận lời giải ngay chưa đến 10 phút Đăng bài tập ngay