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VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES -L VU MINH GIAM EVIDENCE IN THE FIRST-INSTANCE TRIAL OF CRIMINAL CASES AGAINST CRIMES OF PROPERTY INFRINGEMENT IN VIETNAM Major: Criminal Law and Criminal Procedure Major code: 9380104 ABSTRACT OF THE JURIS DOCTOR’s DISSERTATION Hanoi - 2022 The dissertation is completed at Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences Supervisors: Dr Dang Quang Phuong Assoc Prof Dr Nguyen Ngoc Ha Reviewer 1: Assoc Prof Dr Pham Van Loi Reviewer 2: Assoc Prof Dr Tran Huu Trang Reviewer 3: Assoc Prof Dr Tran Van Luyen The dissertation will be defended at the Graduate Academy Level Council of Dissertation Assessment at Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences, 477 Nguyen Trai, Thanh Xuan, Hanoi Time: ………… date ……… month …… …year 2022 The dissertation may be found at: - Vietnam National Library; - Graduate Academy of Social Sciences Library INTRODUCTION Rationale of the research topic Evidences are means for determining objective facts of a case in the firstinstance trial of criminal cases against crimes of property infringement They are true information obtained under orders and formalities as stipulated in the Criminal Procedure Code and also publicly investigated and assessed at courts, used as foundation for determining whether it is a commitment to crimes of property infringement, person who committed crimes of property infringement and other significant circumstances for courts to issue a judgment or an award to resolve criminal cases against crimes of property infringement Theoretically, domestic and foreign scientists’ viewpoints on “evidence” as well as other related issues such as the subject of proof, the limit of proof, the scope of proof, the obligation of proof have not yet reached a consensus In terms of legislation, although current provisions of the Criminal Procedure Code and Criminal Code regarding evidence, proof, the first-instance trial of criminal cases, crimes of property infringement are revised, supplemented and gradually completed, from the first-instance trial in reality, it shows that there are still some shortcomings, problems and limitations that need to be further studied, revised, supplemented and completed Practically, when evaluating trials of criminal cases, it is assessed by the supreme people’s court that “there are different ideas about assessing evidence and law application” The Criminal Procedure Code 2015 has been revised and supplemented with important provisions on evidence, proof, source of evidence, orders and formalities s for the first-instance trial and so on, which should be further studied and completed With such above mentioned causes, the candidate has chosen the research topic of Evidence in the first-instance trial of criminal cases against crimes of property infringement in Vietnam for the Juris Doctor’s Dissertation Research purpose and tasks 2.1 Research purpose It aims at clarifying theoretical and practical foundations of evidences in the first-instance trial of criminal cases against crimes of property infringement in Vietnam; also contributing to effective and high-quality improvement of the first- instance trial of criminal cases against crimes of property infringement in our country 2.2 Research tasks Firstly, it is to clarify fundamentally theoretic issues in terms of evidences in the first-instance trial of criminal cases against crimes of property infringement: Fundamentals of methodology, concepts, characteristics, roles and values of evidence and evidence sources; matters to be proved and proof process in the first-instance trial of criminal cases against crimes of property infringement; factors affecting the enforcement of provisions of the law on evidence in the first-instance trial of criminal cases against crimes of property infringement Secondly, it is to clarify provisions of laws and their actual enforcement in the first-instance trial of criminal cases against crimes of property infringement in our country Thirdly, it is to analyze requirements and to propose solutions for properly assured enforcement of provisions of the law on evidence in the first-instance trial of criminal cases against crimes of property infringement in Vietnam today Research subject and scope 3.1 Research subject Subject of this dissertation are theoretic issues, provisions of the criminal law, criminal procedure on evidence in the first-instance trial of criminal cases against crimes of property infringement and its enforcement in reality in Vietnam nowadays 3.2 Research scope + About the content: The dissertation only focuses on researching theories of evidence in criminal procedure in general and evidence in the first-instance trial of criminal cases against crimes of property infringement in particular; Researching provisions of the law on evidence in the first-instance trial of criminal cases against crimes of property infringement and its enforcement in reality + About region: It focuses on researching the theoretical and practical issues on the enforcement of the law on evidence in the first-instance trial of criminal cases against crimes of property infringement nationwide + About time: From 2011 to 2020 Methodology and research methods 4.1 Methodology In the dissertation, the historical and dialectical materialism methodology of Marxism-Leninism; Ho Chi Minh's thought on the state and law; perspective of the Communist Party of Vietnam on judicial reform and building a socialist lawgoverned state of Vietnam are bases for the candidate’s research In addition, it also absorbs the quintessence of legal thought of mankind, international legal values and refers to laws of some countries in the world on evidence in criminal procedure 4.2 Research methods Historical-specific research method Synthesis method Comparative method Statistical methods Analytical method In addition, the candidate also utilizes methods of collecting documents, legal literature review, in-depth interviews to prove arguments, assessments in the dissertation New contributions of the dissertation By using multidisciplinary and interdisciplinary methods, the dissertation seeks to analyze the theoretical issues on evidence in the first-instance trial of criminal cases against crimes of property infringement It also analyzes the provisions of the law and the first-instance trial of criminal cases against crimes of property infringement in reality Thenceforth, the study proposes solutions that aim to properly implement the provisions of the law on evidence in the first-instance trial of criminal cases against crimes of property infringement in Vietnam On the basis of theoretical issues, the provisions of the law, and enforcement in reality, with a holistic, comprehensive and multi-dimensional approach to evidence in the first-instance trial of criminal cases against crimes of property infringement, it will serve as a basis to improve the quality of first-instance trial against crimes of property infringement to further guarantee human rights and minimize errors in the first-instance trial of criminal cases against crimes of property infringement The dissertation is an intensive study on evidence in the first-instance against crimes of property infringement Based on research methods and approaches through trials in reality, the study aims to further clarify the issues of evidence and relevant issues in the first-instance trial of criminal cases against crimes of property infringement Theoretical and practical significance of the dissertation Theoretically: The dissertation is a full, comprehensive, and systematic research work on evidence in the first-instance trial of criminal cases against crimes of property infringement The dissertation findings contribute to further improving the argument of evidence in the first-instance trial of criminal cases against crimes of property infringement Practically: The dissertation can be used in the research work of educational Institutions in law, law enforcement agencies, and be practically significant for competent procedure authorities, especially for Courts The dissertation is also a reference for completing the provisions of the Penal Code, the Criminal Procedure Code, and guiding documents; contributes to enriching and perfecting the theoretical basis of evidence in the first-instance trial of criminal cases against crimes of property infringement, and improving the effectiveness of judicial reform in the coming years Structure of the dissertation Besides the introduction and conclusion, references and appendix, the dissertation includes chapters Chapter LITERATURE REVIEW 1.1 Domestic studies 1.1.1 Studies on theoretical issues on evidence in the first-instance trial of criminal cases against crimes of property infringement Concept of evidence in criminal procedure: Nguyen Van Du in the Concept of evidence in criminal procedure: view from historical aspect and comparative law posted on the State and Law Journal, edition 11/2005 presented an overview of the prosecution (denunciation) procedure that had appeared in the ancient historical period, being reflected strongly in the Roman Procedure Law Do Van Duong in his Doctoral Dissertation with the title Collecting, assessing and using evidence in criminal cases said that evidences were authentic information about truth related to criminal acts, collected according to orders and formalities prescribed by law, which procedure-conducting persons and agencies used as a basis for determining objective truths of a case Vuong Van Bep in his Doctoral Dissertation with the title Theoretical and practical issues on the institution of evidence in the Criminal Procedure Law of Vietnam introduced the concept of evidence in criminal procedure Author Ngo Van Vinh proposed a concept of evidence as follows: Evidences are true information collected with orders and formalities stipulated by the law, which are foundations for investigation agencies, procuracies and courts to determine whether there is a criminal act, those who committed to a criminal act as well as other necessary circumstance in an effort to adjudicate the case properly [115] There are some other studies and related works about concepts of evidence in criminal procedure, all of which are subject to approach of evidence as stipulated in Clause Article 64 of the Criminal Procedure Code 2003 Collecting, inspecting and assessing evidence in criminal case trials: Dr Hoang Thi Minh Son with her article Completing regulations on collecting, assessing and using evidence in criminal procedure generalized the process of criminal case trial with various stages, however at each stage, means of proof were used to clarify four issues to be proved [75] Vuong Van Bep in his Doctoral Dissertation with the title Theoretical and practical issues on the institution of evidence in the Criminal Procedure Law of Vietnam assumed that during proving in criminal cases, evidences were always regarded as means of proof Judgment and award are issued by a trial panel only basing on legal grounds of evidence reviewed at the trial [17] Nguyen Van Du in this Doctoral Dissertation with title Process of proving criminal cases in Vietnam affirmed that procedure-conducting officials must understand and apply accurately the collection, inspection and assessment of evidences to use them for proving purpose in a criminal case [28] Regarding the legal signs of property infringement crimes: There have been many research works and articles on the legal signs of crimes of property infringement, including Nguyen Ngoc Chi’s Doctoral Dissertation with title Criminal liabilities for crimes of property infringement; Dang Quang Dung’s Master Thesis with title of Expropriating crimes of property infringement in the Criminal Code of Vietnam Specific local studies can include Le Hoang Tuan’s master thesis with title Determining crimes of property infringement according to the Criminal Code of Vietnam from the reality of Ho Chi Minh City; Vo Van Quang’s Master Thesis of Prevention of expropriating crimes of property infringement in Gia Lai province; Tran Thi Phuong’s Master Thesis of Determining crimes of property infringement in Binh Dinh province in the period 2006-2010; Phan Dinh Vui’s Master Thesis on Crimes of property infringement committed by women in Da Nang city: situations, causes and solutions These works all approach legal signs of crimes of property infringement according to crime constituting factors Recently, author Nguyen Truong Giang analyzed the legal signs of property infringement crimes in the article Legal signs and method of classifying property infringement crimes according to the Criminal Code 2015 [152] 1.1.2 Studies on actual enforcement of provisions of the law on evidence in the first-instance trial of criminal cases against crimes of property infringement It is assessed in a basic investigation project on the Actual enforcement of the Criminal Code 1999 in order to comprehensively amend it in the coming time that the enforcement of the Criminal Code on crimes of property infringement and its trial have revealed shortcomings: Firstly, the main problem in trial of crimes of property infringement is the determination of objective behavior and criminal tricks to distinguish crimes Secondly, in terms of asset valuation, the appraisal of property value is also very complicated Thirdly, there is still confusion and inconsistency when determining some aggravating circumstances that are signs of constituting a number of other crimes [124] The article of Crime of robbing property and criminal transformation in accordance with the Criminal Code of Vietnam by Dr Pham Minh Tuyen set forth problems due to different interpretations, evidences and documents to prove in the application to the aggravating circumstances of the crime of robbery and the criminal transformation into other crimes when determining crime [89] The article of Some issues to be completed for the crime of trust abuse to appropriate property by MSc Nguyen Van Truong indicated difficulties in understanding what is a case of fleeing to appropriate property and evidence proving that a person, after borrowing, renting or receiving property in the form of a contract, flees but has no sense of appropriation [87] Also about this crime, MSc Tran Duy Binh analyzed and compared penalties when applying aggravating circumstances with “professionalization” with other crimes In the MSc Thai Chi Binh’s article of Actual situation of applying regulations on collecting and preservating material evidences and remedy solutions, actual situation of collecting and preservating material evidence and some shortcomings in such activities were analyzed [152] The article of Some difficulties in handing material evidences in criminal cases by MSc Nguyen Van Truong analyzed handling of material evidences as criminal trace carriers; handling of material evidences in cases of crimes of destruction or intentional damage to property; handling property both as material evidence and directly related to the crime [86] Recently, MSc Nguyen Minh Hai in the article of Provisions of the Criminal Procedure Code 2015 on handling of material evidence focused on analyzing the handling of material evidences during the stage of criminal case trial; His personal viewpoints on the order of dispute resolution over the ownership of material evidence were also indicated [39] By studying such works, it is realized that such studies just restrict at the level of interpreting the practical law and analyzing the obstacles and shortcomings in the application of the practical law to practice 1.1.3 Studies on solutions for assuring the proper enforcement of the law on evidence in the first-instance trial of criminal cases against crimes of property infringement In the article of Assuring the human rights, citizenship as ideology throughout the Criminal Procedure Code 2015, Assoc.Prof.Dr Nguyen Hoa Binh analyzed that requirements of the Constitution 2013 on democracy, rule of law, respect, protection and assurance of human rights and citizenship has been deeply reflected in the Criminal Procedure Code 2015 These new contents require to be fully grasped and strictly adhered to in order to create a qualitative change in judicial work in the coming time [2] Prof.Dr.Sc Dao Tri Uc, in the article How the Vietnam Criminal procedure reforms and completes, affirmed that wrongdoing often occurs mainly in the process of proving the case Therefore, the criminal procedure reform should be carried out by abandoning provisions on the recognition of the proof value of evidence The principle that all evidence is of equal value, regardless of whether they are recorded “officially” or not should be strictly complied with [113] In the Assoc.Prof.Dr Le Cam’s article of Trends of source development of the criminal law of Vietnam and amending and supplementing the current Criminal Code, it was proposed that aggrevating circumstances on criminals who are “members of a gang or team appropriating property” should be stipulated [24] Trinh Khac Trieu in the article of Receiving, studying and assessing evidences recorded in a criminal case determined that in addition to comprehensive inspection, scrutinizing of evidences in a criminal case, procedure-conducting officials must focus on scrutinizing them carefully and timely to handle any errors or violations of evidence detected in the criminal case record [85] In the article of Expression of the principle of presumption of innocence in the institution of proving and evidence of the Criminal Procedure Law of Vietnam, the author Dinh The Hung proposed to abolish the institution of returning records for additional investigation by a court in order to ensure the presumption of innocence in criminal procedure It should be allowed instead that, at the trial stage, the Procuracy has the right to supplement evidence if it is found that proving the fault of the accused person or defendant is incomplete If the viewpoint of accusation is kept unchanged by the Procuracy, the Court will still proceed with the trial and declare the defendant not guilty regardless of any inadequate of evidence found [46] In the basic investigation project on Actual enforcement of the Criminal Code 1999 in order to comprehensively amend it in the coming time, complting the Criminal Code on crimes of property infringement is proposed [124] 1.2 Foreign studies The Russian jurist M.A.Trensov identified evidence with the facts of objective reality that happened in the past and said that "evidences are facts, circumstances" [137, p.134] In the book of Theory of judicial evidence in Soviet law, A.Ia Vyssinsky stated his perfective on evidence of bourgeois jurists [135, p.353-354] Judge Kim Chu Seok in his essay on the Criminal Evidence Law of Korea analyzed provisions of evidence in the criminal procedure law of Korea; which emphasized the principles of limiting the value of evidence [143] Criminal evidences were analyzed by Prof Liling Yue, accordingly evidence was defined: “any data that can prove actual circumstance of a matter means evidence” [144] Fourthly, assessing actual enforcement of provision of the law on evidence in first-instance trial of criminal cases against crimes of property infringement in Vietnam is studied from trials of property infringement in reality Fifthly, the Author shall continue studying requirements and suggest solutions for properly enforcing provisions of the law on evidence in the first-instance trial of criminal cases against crimes of property infringement in the coming time Conclusion of the chapter Evidence has an important role in determining objective truth of criminal cases and reflecting the process of determining truth of the case In criminal procedure activities, circumstances of cases can only be determined by competent procedure authorities with evidences that have been collected, inspected and assessed Accordingly, evidence is a means of asserting certain events, circumstances to adjudicate properly criminal cases By surveying scientific works published and related to the Dissertation’s content, the candidate have referred to scientific works to have experience, approach and methodology of study to have results while implementing the Dissertation Besides, it helps the candidate to have orientation of content, purpose, significance and clinic research to clarify evidence in first-instance the trial of criminal cases against crimes of property infringement in Vietnam After studying domestic and foreign studies, it is generalized as follows: it is consistent that evidence is a means of proving to determine objective truth of criminal cases; a criminal case is adjudicated in various stage, however legal subjects must always use evidence to clarify issues to be proved in any stage The trial of criminal cases against crimes of property infringement is in fact restricted and inadequate; The authors also suggest different solutions that all aim at properly and effectively enforcing provision of the law on evidence in the trial of criminal cases 11 Chapter THEORETICAL ISSUES ON EVIDENCE IN THE TRIAL OF CRIMINAL CASES AGAINST CRIMES OF PROPERTY INFRINGEMENT 2.1 Theoretical awareness on evidence in the trial of criminal cases against crimes of property infringement 2.1.1 Methodological basis of evidence in the trial of criminal cases against crimes of property infringement The cognitive theory of dialectical materialism is used as the methodological basis of evidence in the trial of criminal cases against crimes of property infringement with the following basic perspectives: Firstly, all things and phenomena of the objective world always exist in an interrelationship and are influenced by each other Secondly, it is affirmed in the dialectical materialism that people are capable of perceiving all things and phenomena in the objective world Thirdly, the cognitive theory of dialectical materialism is a particularly important methodological basis in the theory of evidence in the trial of criminal cases against crimes of property infringement Fourthly, the dialectical method lays the foundation for the application of rules of the materialist dialectic to the process of collecting, inspecting and assessing evidence 2.1.2 Concept, feature, role and significance of evidence in the trial of criminal cases against crimes of property infringement 2.1.2.1 Concept of evidence in the trial of criminal cases against crimes of property infringement Evidences in the trial of criminal cases against crimes of property infringement are factual information, collected according to orders and formalities stipulated by the Criminal Procedure Code and have been inspected and assessed publicly at courts; used as basis for determining whether there is an criminal act of property infringement, those who commit to criminal act of property infringement and other significant circumstances so that a court can release a sentence and award for criminal cases of property infringement 12 2.1.2.2 Feature of evidence in the trial of criminal cases against crimes of property infringement Firstly, evidence in the trial of criminal cases against crimes of property infringement reflects three properties, i.e objectiveness, relation and legality Secondly, evidence in the trial of criminal cases against crimes of property infringement is basis for clarifying issues to be proved of a criminal case of property infringement Thirdly, in the trial of criminal cases against crimes of property infringement, evidences determining value of appropriated assets are always clarified and significant for properly adjudicating the criminal case of property infringement Fourthly, evidences in the trial of criminal cases against crimes of property infringement are inspected and assessed publicly at the first-instance criminal trial Fifthly, evidences in the trial of criminal cases against crimes of property infringement are collected, inspected and assessed publicly at courts according to proper orders and formalities stipulated in the criminal procedure law 2.1.2.3 Role and significance of evidence in the trial of criminal cases against crimes of property infringement Evidence in the trial of criminal cases against crimes of property infringement takes the role of clarifying issues of the object to be proved for purpose of properly adjudicating the case on the basis of determining objective truth of the crimes of property infringement Accordingly, evidence is also means of proving a criminal case of property infringement Evidence in the trial of criminal cases against crimes of property infringement is significant in clarifying objective truth of criminal cases of property infringement; ensuring the socialist legislation principle, assuring human rights, basic rights and obligations of citizens; ensuring the principle of equality, the principle of fairness and directly protecting the legitimate rights and interests of owners 2.1.3 Sources of evidence in the trial of criminal cases against crimes of property infringement 2.1.3.1 Conclusion on asset valuation, determinative documents of asset value 2.1.3.2 Testimonies and presentations of participants in the proceedings 2.1.3.3 Evidence 13 2.1.3.4 Minutes of taking criminal proceedings, investigation and prosecution activities 2.1.3.5 Appraisal conclusion 2.1.3.6 Other documents and other items 2.1.3.7 Electronic data 2.1.3.8 Result of judicial mandate and other international cooperation 2.2 Issues to be proved and the proof process in the first-instance trial of criminal cases for crimes of property infringement 2.2.1 Issues to be proved in the first-instance trial of a criminal case for crimes of property infringement To properly adjudicate criminal cases of property infringement, in its firstinstance trial, the followings must be proved: - Criminal acts and their tricks - The extent of property damage caused by the crime - Subject of the crime, the fault, the motive, purpose of the crime - Personal characteristics of the accused - Aggravating circumstances and mitigating circumstances of criminal liabilities, the causes and conditions for crime occurance Besides, depending on specific criminal case of property infringement or subject accused, other significant circumstances must be proved for properly adjudicating criminal case of property infringement 2.2.2 The proof process during the first-instance trial of criminal cases against crimes of property infringement 2.2.2.1 Collecting evidence in the first-instance trial of criminal cases against crimes of property infringement 2.2.2.2 Inspecting evidence in the first-instance trial of criminal cases against crimes of property infringement 2.2.2.3 Assssing evidence in the first-instance trial of criminal cases against crimes of property infringement 2.3 Factors affecting the enforcement of provisions of the law on evidence in the first-instance trial of criminal cases against crimes of property infringement 14 2.3.1 Crimes of property infringement - Crimes of property infringement tend to increase, especially robbery and theft, etc [12] - In the credit and banking sector, there have been a series of cases of fraud or taking advantage of trust to appropriate property, causing particularly serious consequences - The scientific - technological revolution 4.0 develops rapidly, as a result, subjects focus on exploiting to commit crimes, especially the crime of fraud and appropriation of property (via social networks such as Facebook, Viber, Zalo…); - In the last years, the fact of “black credit” has become common, disordering the society 2.3.2 Subjects conducting the first-instance trial of criminal cases against crimes of property infringement Firstly, subjects conducting the the first-instance trial of criminal cases against crimes of property infringement must be qualified of law Secondly, their skills and expertises affect directly on the trial of criminal cases against crimes of property infringement Thirdly, political bravery and professional ethics of subjects conducting the first-instance trial of criminal cases 2.3.3 Subjects involving in procedure in the first-instance trial of criminal cases against crimes of property infringement Firstly, subjects involving in procedure in the first-instance trial of criminal cases against crimes of property infringement in particular take important roles in finding out objective truth of the case Secondly, litigation makes an important contribution to determining the objective truth in the process of adjudicating the criminal cases of crimes of property infringement Conclusion of chapter Evidences in the the first-instance trial of criminal cases against crimes of property infringement are factual news collected with orders and formaltiies stipulated in the Criminal Procedure Code, which have been inspected and assessed 15 publicly, used as grounds for courts to release sentences or awards toward criminal cases of crimes of property infringement In the first-instance trial of criminal cases against crimes of property infringement, courts have tasks of studying, inspecting, assessing evidence objectively and comprehensively, which aims at determinig legality, authentification and relation of evidences as basis for the first-instance trial of criminal cases against crimes of property infringement Proving in the first-instance trial of criminal cases is shown remarkably and most done at courts It is a public investigation course involved by all subjects in order to determine objective facts in criminal cases of crimes of property infringement It is therefore necessary to clarify matters to be oproved for crimes of property infringement in the first-instance trial of criminal cases of property infringement The proving of criminal cases includes collection, inspection and assessment of evidence, however such distribution is rather relative In the firstinstance trial of criminal cases against crimes of property infringement, such actions are not subject to a certain order, but interleaving By studying, it shows that factors affecting on enforcement of provision of the law on environment in the first-instance trial of criminal cases against crimes of property infringement are the situation of crimes of property infringement; subjects conducting first-instance trials of criminal cases for crimes of property infringement; subjects participating in the proceedings in first-instance trials of criminal cases for crimes of property infringement Results of the research, together with scrutizing provisions of the law are the basis for making appropriate and scientific recommendations, contributing to improving the effectiveness of the enforcement of provisions of the law on evidence in the first-instance trial of criminal cases against crimes of property infringement Chapter PROVISIONS OF THE LAW ON EVIDENCE IN THE FIRSTINSTANCE TRIAL OF CRIMINAL CASES AGAINST CRIMES OF PROPERTY INFRINGEMENT AND ITS ENFORCEMENT IN REALITY IN VIETNAM 16 3.1 Provisions of the law on evidence in the first-instance trial of criminal cases against crimes of property infringement 3.1.1 Provisions of the law on evidence in the first-instance trial of criminal cases against crimes of property infringement - Period from 1945 to 1988 - Period from 1988 to 2003 - Period from 2003 to 2015 - Period from 2015 to now 3.1.2 Provisions of the criminal law and criminal procedure on evidence in the first-instance trial of criminal cases against crimes of property infringement - Period from 1945 to 1988 - Period from 1988 to 2003 - Period from 2003 to 2015 - Period from 2015 to now 3.1.3 Provisions of the criminal law and criminal procedure on evidence in judgment during the first-instance trial of criminal cases against crimes of property infringement - Period from 1945 to 1988 - Period from 1988 to 2003 - Period from 2003 to 2015 - Period from 2015 to now 3.2 Actual enforcement of provisions of the law on evidence in the trial of criminal cases against crimes of property infringement 3.2.1 Results obtained during enforcement of provisions of the law on evidence in the trial of criminal cases against crimes of property infringement 3.2.1.1 Courts have timely scrutinized cases’ records, assessed evidences to determine crimes of property infringement for timely adjudicating as prescribed by law 3.2.1.2 Determine all issues that need to be proved and the obligation of proof in the first-instance trial of a criminal case for crimes of property infringement 17 3.2.1.3 Evidence collection activities have strictly complied with the provisions of the Criminal Code, the Criminal Procedure Code in the first-instance trial of criminal cases for crimes of property infringement 3.2.1.4 Courts shall inspect and assess evidence objectively, completely and accurately 3.2.1.5 Courts facilitate procurators, lawyers and procedure participants in providing documents and evidences at court hearings 3.2.1.6 Court judgments and awards are issued on the basis of circumstances, evidences and arguments that have been examined, evaluated and concluded completely and comprehensively 3.2.2 Restrictions and shortcomings in enforcement of the law on evidence in the trial of criminal cases against crimes of property infringement 3.2.2.1 Restrictions, shortcomings of evidence’s objectiveness 3.2.2.2 Restrictions, shortcomings of evidence’s relation 3.2.2.3 Restrictions, shortcomings of evidence’s legality 3.2.2.4 Restrictions, shortcomings in inspecting and assessing evidence 3.2.2.5 Restrictions, shortcomings related to a case’s evidence 3.2.3 Causes of restrictions, shortcomings in enforcement of the law on evidence in the trial of criminal cases against crimes of property infringement Objective causes Subjective causes Conclusion of Chapter In the trial of criminal cases against crimes of property infringement, courts are subjects performing various procedure activities and evidences are ground for performing them In fact these activities are opened and ended with evidence, originated from evidence and provisions of the law By studying, provisions of the law on evidence in the trial of criminal cases against crimes of property infringement are gradually established, developed and completed The study of actual enforcement of provisions of the law on evidence in the trial of criminal cases against crimes of property infringement in Vietnam indicates 18 active results, contributing to effective enhancement of fighting against and prevention of crimes In addition, the enforcement of provisions of the law on evidence in the trial of criminal cases against crimes of property infringement in Vietnam shows restrictions and shortcomings in reality Such above mentioned restrictions and shortcoming originate from objective and subjective causes, which are basis for the author to set forth solutions in the coming time in an effort to enhance the enforcement of provisions of the law on evidence in the trial of criminal cases against crimes of property infringement in Vietnam at present Chapter REQUIREMENTS AND SOLUTIONS FOR PROPERLY ASSURED ENFORCEMENT OF PROVISIONS OF THE LAW ON EVIDENCE IN THE TRIAL OF CRIMINAL CASES AGAINST CRIMES OF PROPERTY INFRINGEMENT 4.1 Requirements of assuring properly enforcement of provisions of the law on evidence in the trial of criminal cases against crimes of property infringement 4.1.1 Requirements of assuring socialist legislation Principles of assuring legislation in criminal procedure are of following main contents: - Setting up a complete and comprehensive criminal procedure legal system suitable to the reality and conditions of the country in each period - Self-discipline and strict enforcement of the criminal procedure law in the process of criminal case settlement - The principle of "assuring the socialist legislation in criminal procedure" emphasizes the limitation of provisions of the criminal procedure law in the course of procedure to adjudicate cases [88, p.43- 44] 4.1.2 Requirements of continuously boosting up and enhancing effectiveness of justice reform 19 Evidence in the trial of criminal cases against crimes of property infringement must base on the above mentioned directions during the reform process to enhance effectiveness of this work, to address matters of evidence in the current trials, it is required: Firstly, to complete the criminal law and criminal procedure; Secondly, to determine functions, tasks, authorities and to complete organizations and mechanisms of justice agencies in the trial of criminal cases against crimes of property infringement; Thirdly, to enhance effectiveness of inspection, assessment of evidence at the first-instance criminal court; 4.1.3 Requirements of respecting, protecting and assuring human rights In the trial of criminal cases against crimes of property infringement, human rights are expressed in the followings aspects: Firstly, it is the right of being adjudicated promptly without delay Secondly, it is the right of being fairly adjudicated 4.1.4 Requirements of ownership protection In the trial of criminal cases against crimes of property infringement, courts perform their functions and roles as follows: - Review and conclude on the legality of the acts and procedural decisions of investigators, prosecutors and lawyers during the investigation, prosecution and trial; consider the application, change or cancellation of the containment measure; suspend, temporarily suspend cases; - Review and conclude on the legality of evidences and documents collected by investigation agencies, investigators, procuracy and procurators; provided by lawyers, the accused, the defendant and other participants in the proceedings; - Return dossiers to request the Procuracy for additional investigation, if deemed necessary, request the Procuracy to supplement documents and evidences or courts to examine, verify, collect and supplement evidences according to the provisions of the Criminal Procedure Code; - Request investigators, procurators and others to state matters related to the case at the court hearing; prosecute a criminal case if omission of a criminal is detected; 20 4.2 Solutions for assuring properly enforcement of provisions of the law on evidence in the first-instance trial of criminal cases against crimes of property infringement 4.2.1 Continuing to complete the Criminal Code and the Criminal Procedure Code 2015 - Complete the signs of determining some crimes of crimes of property infringement; - Instruct in consistency the criminal transformation of property infringement crimes; - Complete the details of the penalty framing in property infringement crimes - About electronic data - About audio and video recording when interrogating the accused - About Court's regulations on verifying, collecting and supplementing evidences 4.2.2 Improving competence and accountabilities of subjects competent to conduct procedure These solutions include: - Consolidating investigation agencies, procuracies and courts at all levels to ensure adequate staffing as prescribed to perform tasks; - Successfully recruiting officials and public employees to work at investigation agencies, procuracies and courts at all levels; - Successfully organizing the recruitment and appointment of investigators, procurators, judges at all levels - Improving political bravery and moral qualities for investigators, procurators, judges and jurors at all levels - Regularly training and fostering professional qualifications and skills for the staff of investigator, procurators, judges and jurors at all levels 4.2.3 Improving competence of lawyers and other juridical aid staff For more and more effective defense activities of lawyers, it is required to improve the competence of lawyers, build a team of lawyers in the direction of mastering the law, being good at professional expertise, and having professional ethics to meet the need of objective truth protection 21 One of basic contents of judicial reform is to complete judicial aid institutions to improve the quality of judicial aid activities, enhance the efficiency of state management and gradually socialize the judicial aid work 4.2.4 Assuring the principles of litigation in trial Litigation in criminal procedure is of break-through idea, which is regarded as some of the most important aspects of judicial reform According to provisions of the Criminal Procedure Code 2015, the principles of litigation are indicated in the following contents: - In the process of adjudicating a case, subjects competent to conduct the procedure and subjects participating in the procedure are equal in giving evidence, assessing evidence, making requests to clarify the objective truth - Conditions for conducting litigation activities in trial are prescribed such as: the case document must be complete and lawful when procuracies transfer them to courts; the presence of all participants in the court hearing are assured as prescribed by law, except for some special cases; courts are responsible for facilitating the relevant parties in carrying out democratic and equal litigation; - Evidence, articles and clauses of the Criminal Code applicable to the handling of the case's issues must be presented for consideration and clarification at the court hearing; - The results of the litigation thereof are basis for the court to issue judgments and awards [88, p.70]; 4.2.5 Other solutions - Strengthening the collaboration between investigation agencies, procuracies and courts in collecting, inspecting and assessing evidence; - Strengthening the investment in material infrastructure, equipments and plants, working facilities; - Renovating and completing the remuneration and salary regime Conclusion of Chapter Confronting the more and more comprehensive demand of judicial reform and international integration while crimes are complicated, demanding requirements are remained higher for courts and competent authorities of procedure performance 22 during the trial of criminal cases In addition to achievements, actual enforcement of provisions of the law on evidence in the trial of criminal cases against crimes of property infringement in Vietnam shows violations, mistakes and obstacles over the past time In the candidate’s opinion, to enhance quality of enforcing provisions of the law on evidence in the trial of criminal cases against crimes of property infringement, there must first be an innovation in cognitive thoughts, then solutions to improve the provisions of the Criminal Code, the Criminal Procedure Code related to the crimes of property infringement, institutions of evidence for proof, followed by solutions on human development strategy and organizational apparatus of competent procedure authorities The consistent and synchronous implementation of such solutions can be an important basis for improving the quality of the trial of criminal cases against crimes of property infringement in Vietnam today 23 CONCLUSION In the trial of criminal cases against crimes of property infringement, courts may determine circumstances of cases with evidences that have been collected, inspected and assessed; accordingly objectiveness, relation and lawfulness of evidences are determined as basis for the trial of criminal cases Proving in the first-instance trial of criminal cases is shown remarkably and most done at courts It is therefore necessary to clarify matters to be proved for crimes of property infringement The proving of criminal cases includes collection, inspection and assessment of evidences; such actions are not subject to a certain order, but interleaving By studying, provisions of the law on evidence in the trial of criminal cases against crimes of property infringement are gradually established, developed and completed Also, the actual enforcement of provisions of the law on evidence in the trial of criminal cases against crimes of property infringement in Vietnam obtains active achievement However, some restrictions and shortcomings remain available due to objective and subjective reasons To assure properly enforcement of provisions of the law on evidence in the trial of criminal cases against crimes of property infringement, according to the candidate’s viewpoints, it must first be an innovation in cognitive thoughts, then solutions to improve the provisions of the Criminal Code, the Criminal Procedure Code related to the crimes of property infringement, institutions of evidence for proof, followed by solutions on human development strategy and organizational apparatus of competent procedure authorities It is also necessary to further invest in material, technical infrastructure and working facilities of procedure authorities, frequently train and organize fostering courses for enhanced qualification of the procedure conducting persons Especially their ethic and political quality must be regularly improved 24 List of the author’s published articles related to the dissertation Vu Minh Giam (2021), Some issues on evidence assessment in the trial of criminal cases, People's Court Journal (3) Vu Minh Giam (2019), Issues to be proved in the trial of property infringement crimes, People's Court Journal (23) Vu Minh Giam et al (2021), To whom civil liability belongs, People's Court Journal (19) Vu Minh Giam, Do Ngoc Binh (2017), Bui Xuan N committed to crime of abusing his position and power to appropriate property, People's Court Journal (14) Vu Minh Giam et al (2017), What crime did Nguyen Quy H commit?, People's Court Journal (4) ... 4.2.5 Other solutions - Strengthening the collaboration between investigation agencies, procuracies and courts in collecting, inspecting and assessing evidence; - Strengthening the investment... of methodology, concepts, characteristics, roles and values of evidence and evidence sources; matters to be proved and proof process in the first-instance trial of criminal cases against crimes... investigation agencies, procuracies and courts to determine whether there is a criminal act, those who committed to a criminal act as well as other necessary circumstance in an effort to adjudicate the case