THÔNG TIN TÀI LIỆU
VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES KHẢM NGUYEN TRUONG DUC THANG PRACTICING PROSECUTORIAL RIGHTS FOR THE CRIME OF PROPERTY EMBEZZLEMENT ACCORDING TO VIETNAMESE CRIMINAL PROCEDURE CODE Major: Criminal Law - Criminal Procedure Code: 38 01 07 SUMMARY OF DOCTORAL THESIS IN JURISPRUDENCE HANOI, 2023 The project is completed at: GRADUATE ACADEMY OF SOCIAL SCIENCES Supervisors: 1: PhD DO DUC HONG HA 2: PhD DINH XUAN NAM Reviewer 1: Assoc Prof Dr Tran Van Do Reviewer 2: Assoc Prof Dr Phung The Vac Reviewer 3: Assoc Prof Dr Pham Van Loi The thesis will be defended before the Academy-level Thesis Council at: GRADUATE ACADEMY OF SOCIAL SCIENCES At hour, date month year 2023 The thesis can be found at: - Vietnam National Library - Library of Graduate Academy of Social Sciences LIST OF THE AUTHOR'S WORKS NGUYEN TRUONG DUC THANG (2014), The restrictive relationship according to criminal proceedings between the procuracy and the court at the stage of first instance criminal trial, Procuracy Magazine 2014 NGUYEN TRUONG DUC THANG (2022), Current status of practicing prosecutorial rights when dealing with sources showing signs of property embezzlement and some recommendations, Journal of Human Resources and Social Sciences, No 01 (104) 2022 NGUYEN TRUONG DUC THANG (2022), Current situation and some solutions to improve the quality of practicing prosecutorial rights during the trial of property embezzlement cases, Journal of Human Resources and Social Sciences, No 04 (107) 2022 PREAMBLE Urgency of the research Practicing prosecutorial rights for the crime of property embezzlement helps guide the process of collecting evidence documents to clarify the crime On that basis, charges and criminal prosecution of the person who committed the crime will be carried out Therefore, research on the title "Practicing prosecutorial rights for the crime of property embezzlement according to Vietnamese Criminal Procedure Code" is necessary and urgent to meet the requirements of the theoretical basis, legal basis, practical basis and needs of the process of fighting the crime of property embezzlement Purpose of the research Supplement, complete and deepen the theoretical system; Complete current legal regulations; Improve the quality of practicing prosecutorial rights for the crime of property embezzlement Subject and scope of the research The research subject of the thesis is the theory and legal regulations of the actual practice of prosecutorial rights for the crime of property embezzlement Scope of research: the title is researched from the perspective of the function of practicing prosecutorial rights for the crime of property embezzlement carried out by the People's Procuracy in accordance with Vietnamese Criminal Procedure Code from the stage of resolving criminal information until after the first instance trial The thesis delves into the provisions of the Criminal Procedure Code and the Penal Code; At the same time, there is a connection with the provisions of a number of related laws and regulatory documents under the law and professional regulations of the Procuracy sector Research methodology and methods The thesis research is based on the materialist dialectical method of Marxism-Leninism and Ho Chi Minh's ideology on law; Viewpoints, guidelines and policies of the Communist Party of Vietnam and State legal policies on fighting, preventing and combating crimes The thesis uses research methods such as: aggregate; statistics, analyze legally; survey; analyze practical situations; compare; interpret, infer to solve the problems and tasks of the thesis New points of the thesis This is a systematic and relatively complete and comprehensive research work on the practice of prosecutorial rights for the crime of property embezzlement in Vietnam at present - The thesis has researched the theory and basis of the law on the practice of prosecutorial rights for the crime of property embezzlement from the stage of resolving denunciations, reporting crimes, and recommending prosecution to the stage of the first instance trial of the case - Identify and analyze the causes, including legal regulations affecting the quality of practicing prosecutorial rights for the crime of property embezzlement - The thesis contributes to supplementing the theoretical and practical basis for amending and supplementing a number of provisions of the Criminal Procedure Code; Law on Mutual Legal Assistance and legal guiding documents related to the exercise of prosecutorial rights for the crime of property embezzlement - The thesis offers a number of solutions to improve the quality of practicing prosecution rights for the crime of property embezzlement in the future Theoretical and practical significance of the thesis - Scientific significance: The research results of the thesis contribute to improving the theory and legal basis, thereby helping to have a unified understanding of legal provisions in practicing prosecutorial rights for the crime of property embezzlement - Practical significance: The thesis can be used as a reference document in training programs for Procurators on skills to practice prosecutorial rights for the crime of property embezzlement In addition, applying the solutions proposed in the thesis will contribute to improving the quality of practicing prosecutorial rights for the crime of property embezzlement in units of the People's Procuracy Layout of the thesis In addition to the introduction, conclusion, and list of references, the thesis is structured in 04 chapters and 02 appendices CHAPTER OVERVIEW OF THE RESEARCH SITUATION 1.1 Research situation at home and abroad Regarding the topic of exercising the right to prosecute for the crime of Embezzlement of Property, at home and abroad, there are many research works on theories and legal provisions on the function of exercising the right to prosecute and crimes of corruption On the basis of research, the works evaluated the achieved results, limitations, shortcomings and the causes of limitations and shortcomings; Thereby, the authors have proposed solutions to improve the quality of the practice of prosecutorial power in general, the right to prosecute for crimes of corruption 1.2 Assess the research situation and what needs further research The situation of domestic and foreign research shows that the issue of exercising the right to prosecute for the crime of Embezzlement of Property has always been of interest to many researchers The research works approach the problem in-depth in many different aspects, however, most of the research works analyze and evaluate the current situation of exercising the right to prosecute for criminal cases in general or for corruption crimes in particular Up to now, most of the works have not directly studied the theory, situation as well as solutions to improve the practice of prosecutorial power for the crime of Embezzlement of Property The research results of these works have reference value, PhD students can inherit and develop further during the implementation of the thesis On the basis of assessing the research situation at home and abroad, the thesis identifies issues that need further research as follows: First, on the theory: It is necessary to clarify the theoretical issue of exercising prosecutorial power for the crime of Embezzlement of Property, which is an issue that the research works of conditional PhD students have not addressed Second, in practice: It is necessary to assess the current situation of exercising prosecutorial power for embezzlement of property nationwide from 2013 to 2022 and the Supreme People's Procuracy as well as the People's Procuracy at provincial and district levels of some localities such as Ho Chi Minh City, Ba Ria - Vung Tau and Lam Dong provinces from 2019 to 2022 On that basis, clarify the results, limitations, shortcomings and causes of limitations and shortcomings Third, on orientations and solutions: On the basis of assessing the current status of the exercise of prosecutorial power of the Procuracy at all levels for the crime of Embezzlement of Property nationwide from 2013 to 2022, and on the basis of relevant criminal law policies and socio-economic situation, orientations should be given, solutions to improve the quality of the exercise of prosecutorial power for the crime of Embezzlement of Property; CHAPTER THEORETICAL AND LEGAL ISSUES ON THE PRACTICE OF PROSECUTORIAL RIGHTS FOR THE CRIME OF PROPERTY EMBEZZLEMENT 2.1 Theoretical Issues on the Exercise of Prosecution Power for Embezzlement of Property 2.1.1 Concept and legal signs of the crime of Embezzlement of Property 2.1.1.1 Concept of Embezzlement of Property Although there are many different views and interpretations of property embezzlement, these views all contain common signs of this crime that is abusing position and power to seize property Thereby, the concept of property embezzlement can be introduced as follows: "Embezzlement of property is an act dangerous to society committed by a person with position or power who has abused such position or power to seize valuable property under the provisions of the Penal Code that he or she is responsible for managing, infringe upon the prestige and operation of agencies, organizations and enterprises inside and outside the State, the ownership and legitimate interests of the State and enterprises" 2.1.1.2 Legal Signs of Embezzlement of Property First, the objective indication of the crime of Embezzlement of Property The act of embezzlement of assets infringes simultaneously on the proper operation of agencies, enterprises and organizations within the State as well as outside the State and ownership relations Second, the objective sign of embezzlement of property The objective act of embezzlement of property is the act of abusing the position and power to seize property managed by the offender The act of appropriating such property is directly related to the position and power of the offender, if the offender does not have that position or power, it is difficult or impossible for them to commit the act of appropriating property Position and authority are favorable conditions for offenders to carry out the seizure of property easily Third, the indication of the subject of the crime of Embezzlement of Property The subject of the crime of embezzlement of property is a person who has capacity for criminal liability, reaches the legal age, has positions and powers related to property, has abused his position and power to appropriate property that he is responsible for managing Due to the factor of position and power, only individuals are the subjects of the crime of Embezzlement of property However, not all persons with positions and powers can be the subject of the crime of embezzlement of property, but the person with the position or authority must be the person responsible for managing the property Fourth, the subjective sign of the crime of Embezzlement of Property The crime of embezzlement of property is a crime of an appropriation nature, the offender is well aware that his act is dangerous to society, foresees the consequences of such behavior and expects the consequences to occur So, the offender commits his act with direct intentional error 2.1.2 The concept of prosecutorial power and the exercise of prosecutorial power for the crime of Embezzlement of Property 2.1.2.1 Concept of prosecutorial power The right to prosecute is the right of a competent agency to conduct proceedings on behalf of the State to pursue criminal liability or charge offenders 2.1.2.2 The concept of exercising prosecutorial power Exercise of prosecutorial power means the activity of the people's procuracy in criminal proceedings to carry out the examination of penal liability and accusations of the State against offenders in the stages of settling denunciations, reporting on crimes, recommending prosecution and during the prosecution process, investigation, prosecution and trial of criminal cases 2.1.2.3 Concept, object, scope, content, form and meaning of the exercise of prosecutorial power for the crime of Embezzlement of Property - The concept of exercising prosecutorial power for the crime of Embezzlement of Property The exercise of prosecutorial power for the crime of Embezzlement of Property means the activity of the Procuracy in criminal proceedings to carry out the prosecution of criminal liability and charges against offenders for Embezzlement of Property during the stages of settling sources of information about crimes and during the prosecution process, investigate, prosecute and adjudicate property embezzlement cases - The subjects of the exercise of prosecutorial power for the crime of Embezzlement of Property are criminals and offenders of Embezzlement of Property - Scope of exercising prosecutorial power for Embezzlement of Property starting from the time when the investigating agency settles denunciations, reports of crimes and proposes prosecution for the crime of Embezzlement of Property and during the process of prosecution, investigation, prosecution and trial; the exercise of prosecutorial power ceases when the judgment of prosecution or the court's decision on disposal of the offence of Embezzlement of Property has the force of law, not subject to appeal However, depending on the circumstances of the exercise of prosecutorial power for the crime of Embezzlement of Property, it may end at an earlier stage of proceedings It is a case where the competent authority decides to suspend the investigation, suspend the case - Contents of exercising prosecutorial power for embezzlement of property: Decisions to approve, disapprove, change or annul procedural decisions of investigating agencies; make requests for inspection, verification, and investigation requests; directly conduct a number of investigative activities; decide to prosecute the accused; suspension or suspension of the case; presentation of the Indictment and additional opinions; participate in questioning at trial; partial or complete withdrawal of the decision to prosecute; carry out impeachment; contest appeals against judgments and decisions of the Court - The exercise of prosecutorial power for the crime of Embezzlement of Property: The procuracy does so through the issuance of documents, decisions or words - Significance of exercising prosecutorial power for the crime of Embezzlement of Property: Exercising the right to prosecute to ensure that the collection of documents and evidence proving acts of embezzlement of property is timely, objective, comprehensive and lawful; ensure the accusation and prosecution of criminal liability for offenders of embezzlement of property on legal grounds 2.1.2.4 Features of exercising prosecutorial power for embezzlement of property The exercise of prosecutorial power for embezzlement of property is characterized by: timeliness, promptness, accuracy and prudence; report to party committees and organizations; recovery of misappropriated or lost property; the solicitation of assessment and valuation of property is usually carried out in the exercise of the prosecutorial power for the crime of Embezzlement of Property; impose special investigative measures; social legal scrutiny 2.1.2.5 Factors affecting the quality of the exercise of prosecutorial power for the crime of Embezzlement of Property First, the procurator's political awareness, morality, professional bravery, sense of law and skills to exercise prosecutorial power Second, opinions and views of public opinion transfer the dossier to the investigating agency for investigation and prosecution in accordance with law Third, request agencies, organizations and individuals to provide relevant documents; directly conduct some investigative activities Through the study of the conclusion of the investigation and the prosecution proposal and the evidentiary documents contained in the case file, if it considers that more documents are needed to ensure the prosecution of the accused for embezzlement of property, the procuracy shall request agencies and organizations to provide documents related to the act of embezzlement of property In addition, the procuracy shall directly conduct a number of investigative activities in the following cases: (1) detecting signs of wrongdoing against the accused or omitting criminals or offenders of embezzlement of property (2) It is necessary to examine and supplement documents and evidence related to the act of embezzlement of property (3) The court shall return a request for additional investigation on grounds that it considers that the procuracy may conduct additional investigations of documents and evidence Fourth, return the case for additional investigation Through studying the case file, it is found that documents and evidence collected during the investigation phase not fully reflect the offense, the offender or the procedural act, the procedural decision of the investigating agency is not in accordance with the law, leading to the settlement of the case without objective guarantee, comprehensively and lawfully, the Procuracy shall return the case file of property embezzlement for additional investigation in order to remedy violations of the law to ensure that the handling of crimes is objective, comprehensive, in accordance with the law, not wronging innocent people, omitting criminals for the crime of Embezzlement of Property Fifth, extend the time limit for prosecution and decide to prosecute accused guilty of Embezzlement of Property before the Court for trial Through the study of documents, evidence and the conclusion of the investigation, if there are grounds to determine that the accused cannot be 10 prosecuted within the time limit specified in Clause 1, Article 240 of the CrPC, the procuracy shall extend the time limit for deciding to prosecute The Procuracy finds that there are grounds to deal with the person who commits the offense of Embezzlement of Property, shall issue a decision to prosecute the act and the offender of Embezzlement of Property by indictment Sixth, suspend and suspend the case; suspend or temporarily suspend the case against the accused on charges of Embezzlement of Property The Procuracy decides not to prosecute and issues a decision to suspend the case of property embezzlement when there are legal grounds specified in Article 157 of the BLTTHS in 2015 or grounds specified in Article 16 and Article 29 of the Penal Code in 2015 The Procuracy shall decide to temporarily suspend the case of embezzlement of property when there are grounds specified in Clause 1, Article 247 of the BLTTHS 2015 In addition, during the prosecution phase, the procuracy also exercises the prosecutorial power such as requesting the investigating agency to pursue the accused; decide to separate and enter the case; transfer the case for prosecution according to its competence, applying compulsory medical treatment; perform other duties and exercise other powers in exercising prosecutorial powers under the BLTTHS 2015 CHAPTER CURRENT STATUS OF PRACTICING PROSECUTORIAL RIGHTS FOR THE CRIME OF PROPERTY EMBEZZLEMENT 3.1 An overview of the crime of Embezzlement of assets from 2013 to 2022 in Vietnam The practice of exercising prosecutorial power from 2013 to 2022 shows that the evolution of embezzlement of property over the years has increased, decreased and the nature and extent have varied Many cases cause particularly serious consequences, causing anger in public opinion, adversely affecting the investment environment for socio-economic development The act of embezzlement of assets not only occurs at the central level, localities with developed economies, large programs and projects, but also appears in many 11 local government levels where there is underdeveloped economy, small programs and projects; occurs in many fields such as taxation, healthcare, environmental resources, financial management, credit, banking, land, construction, capital and asset management at enterprises causing damage, loss or waste of large amounts of assets of enterprises, organizations and the State 3.2 Results of exercising prosecutorial power for embezzlement of property 3.2.1 Results of exercising prosecutorial power in the stages of settling sources, prosecuting and investigating crimes of embezzlement of property 3.2.1.1 Ratify, disapprove, replace, cancel or extend orders and procedural decisions of investigating agencies When determining that the decision to prosecute a criminal case or the decision not to prosecute the case for embezzlement of property by the investigating agency is groundless, the procuracy shall issue a decision to annul the decision to prosecute the case From 2015 to 2020, the procuracy canceled 01 decision to prosecute the case of the investigating agency for embezzlement of property that occurred in Lai Chau province Most of the procuratorate units surveyed have successfully completed the approval of the decision to prosecute the accused for embezzlement of property in accordance with the law In the process of settling a case on the crime of Embezzlement of Property, the application of preventive measures is especially important, in order to promptly prevent the offender from fleeing, destroying evidence related to the case or continuing to commit the crime A study of 200 case files on the crime of Embezzlement of Property that have been prosecuted, investigated, prosecuted and tried between 2013 and 2022 shows that, in order to promptly detect and seize money and assets due to embezzlement acts; papers, documents and objects related to the case, showing that 100% of the cases surveyed, the investigating agency has applied measures to search the residence or workplace of the subject Exercising its prosecutorial power from 2015 to 2020, the procuracy requested the cancellation of the decision to suspend the investigation of the case and requested the reinstatement of investigation into 01 case on the 12 charge of Embezzlement of Property It is a fraudulent case of asset misappropriation, abuse of trust and misappropriation of assets occurring at the Project Management Board of Cau Quan Township Market, Tieu Can District, Tra Vinh Province 3.2.1.2 Request evidence documents, set out investigative requests; directly conduct certain investigative activities or issue procedural decisions clarifying the offense of Embezzlement of Property; First, request for documents, set out an investigation request Between 2013 and 2022, the procuracy exercised prosecutorial power over the resolution of 1,856 whistleblowers, reports, and prosecution petitions for embezzlement of property; issued 1,856 documents requesting inspection and verification of settlement, accounting for 100% of the total processing During the survey period, the procuracy issued 68 requests to prosecute the case, requesting the prosecution of 11 defendants for embezzlement of property; request the investigating agency to change the decision to prosecute the case in 09 cases, change the decision to prosecute the accused against 14 defendants for embezzlement of property Secondly, directly conduct some investigative activities or issue procedural decisions clarifying the offence of Embezzlement of Property In cases of embezzlement of property in which the accused pleads not guilty or evidence documents are still contradictory, the procuracy shall directly take the testimony of the accused and cross-examine it as a basis for approving the decision to prosecute the accused, the arrest warrant for the accused to be detained accurately, ensure against wrongdoing and neglect of criminals In the process of exercising the prosecutorial power for the crime of Embezzlement of Property, from 2015 to 2020, the procuracy directly issued arrest warrants for the accused to temporarily detain 06 defendants guilty of Embezzlement of Property 3.2.3 Results of exercising prosecutorial power during the prosecution phase of Embezzlement of Property First, decide to apply, change, cancel or extend the time limit for application of preventive or coercive measures; 13 The practice of the cases surveyed showed that the majority of the defendants recommended for prosecution were placed on preventive measures to detain or prohibit them from leaving their residences The Procuracy has issued a decision to impose measures to prevent detention or prohibit travel from the place of residence Where it is necessary to extend the time limit for applying preventive measures to ensure prosecution, the procuracy shall issue a decision on the extension Second, request agencies, organizations and individuals to provide relevant documents; directly conduct some investigative activities For cases with complicated circumstances; Conflicting statements of accused, or complaints about objectivity during the investigation process are conducted by the Procuracy, taking testimony, cross-examination, collecting more documents and evidence for careful re-examination, ensuring the objectivity and accuracy of the investigation results, contribute to limiting wrongful and false cases During the prosecution phase, the procurator carefully studied the case file and conducted an examination of the information of the case received between 2013 and 2022 to examine and evaluate incriminating documents and evidence as well as objectively exonerate, comprehensiveness before issuance of prosecution decision Third, the decision to return the case to request additional investigation The ratio of cases for embezzlement of assets returned for additional investigation nationwide, at the supreme and provincial procuracies in Ho Chi Minh City compared to the number of procuratorial cases handled for prosecution is quite high This reflects that the procuracy has actively and improved its responsibility in studying documents and evidences, thereby promptly detecting violations, omissions in documents and evidences proving the offense of Embezzlement of Property during the investigation, so it must return the dossier to the investigating agency for additional investigation to ensure the settlement process cases of embezzlement of property not neglect criminals, offenders not wrongfully harm innocent people Fourth, extend the time limit for prosecution and decide to prosecute the accused guilty of Embezzlement of Property before the Court for trial 14 After accepting the case of embezzlement of property, the procuracy shall conduct research and evaluate documents and evidence to determine that there are sufficient grounds for trial against the accused for the crime of embezzlement of property, and prosecute the accused before the Court with an indictment Between 2013 and 2022, the procuracy issued 1,261 indictments against 2,395 defendants for Embezzlement of Property; Annual figures increase and decrease unevenly In which, the highest was 184 cases out of 301 accused in 2022 and the lowest in 2017 with 90 cases out of 156 accused Fifth, suspend and suspend the case; suspend or temporarily suspend the case against the accused on charges of Embezzlement of Property The Procuracy always carefully studies documents, enhances responsibilities in the exercise of prosecutorial power, ensures the issuance of decisions on temporary suspension of cases, suspension of cases objectively, prudently, grounded, and does not miss criminals From 2013 to 2022, the procuracy issued suspension decisions for 10 cases out of 28 defendants on charges of Embezzlement of Property; In no case did the Procuracy suspend the case or temporarily suspend the case against the accused 3.2.4 Results of exercising prosecutorial power at the stage of first instance trial for Embezzlement of Property From 2013 to 2022, the people's procuracy exercised its prosecutorial power during the first instance trial phase of 1,173 cases/2,264 defendants for embezzlement of property, with the following contents: First, publication of indictments, questioning, and consideration of exhibits at trial The prosecutor read verbatim the text of the indictment signed by the head of the unit, with a clear, coherent voice, and standard pronunciation of Vietnamese words When questioned, the prosecutor was proactive, confident, cultured and polite; monitor and fully record the contents of questioning of the jury, defense, other participants in the proceedings and opinions; review physical evidence, comment and ask questions related to published material Second, presentation of impeachment and argument at trial 15 Between 2013 and 2022, the procuracy presented 1,173 indictments (accounting for 100%) at the first trial of the case on the charge of Embezzlement of Property, the procuratorate presented the impeachment clearly, coherently, in accordance with the Vietnamese syntax; Stop, rest at the right sign, make sure the meaning of the sentence is sufficient At the preliminary hearing, when conducting arguments, the PROCURATOR is calm and confident, responding to each issue raised by the defendant, the defendant's lawyer and other participants in the proceedings; Don't shy away or reject arguments Third, appeal the judgment of first instance Between 2013 and 2022, people's procuracies at all levels issued 61 appeals (61 cases/89 defendants) The prosecutor comprehensively studied the documents and evidence that had been collected in the previous period and examined publicly at the trial The appellate appeal decision clearly analyzed the violations of the judgment and the grounds for the appeal; At the same time, compare with specific provisions of relevant laws as well as implementation guiding documents 3.3 Limitations and shortcomings in the exercise of prosecutorial power for embezzlement of property 3.3.1 Limitations and shortcomings in the stages of settling sources, prosecuting and investigating crimes of embezzlement of property 3.3.1.1 Limitations and shortcomings in exercising the prosecutorial power to unify the decision to prosecute the case and approve the decision to prosecute the accused When exercising the prosecutorial power over some criminal sources, the prosecutor has not been careful, objective and comprehensive in studying documents and evaluating evidence reflecting the act of embezzlement of property, so he asked the leader to agree with the decision to prosecute the case, approve the decision to prosecute the accused when there are insufficient grounds for law Documents lacking documents reflecting fraudulent tricks, forging invoices, documents for the seizure of property but the procurator does not require additional investigators but proceeds with the motion to approve the decision to prosecute the accused, after which the investigation must be suspended due to acts that not constitute a crime or 16 the case goes to trial but the jury finds the accused not guilty of Embezzlement of Property but of another offence 3.3.1.2 Limitations and shortcomings in making investigation requests When dealing with sources of information about the crime of embezzlement of property of a complex nature, the prosecutor has not proactively and promptly made a written request for the content to be verified or requested, but the content does not follow the issue to be proved about the act of embezzlement of property, so the prosecution of the case is not in accordance with the offense In some cases, the investigating agency makes a decision to prosecute the case or does not prosecute the case for Embezzlement of property without legal grounds but the procuracy does not promptly express its views, resulting in the case being returned for additional investigation or the jury finding the accused guilty of an offense other than the crime of Embezzlement property according to the procuratorate's prosecution decision 3.3.2 Limitations and deficiencies in the prosecution phase for the crime of Embezzlement of Property During the prosecution phase, the procurators have not carefully studied the dossier, so they cannot detect contradictions and shortcomings in collecting and evaluating documents and evidence reflecting on the act of embezzlement of assets in order to promptly request additional investigation; request agencies, organizations and individuals to provide documents related to the case or prosecutors who not directly conduct some investigative activities in order to examine and supplement documents and evidences This leads to a situation where, after issuing a decision on prosecution or conducting questioning at the trial, it is found that the evidence collected is inadequate, and the criminal or other accomplice is omitted, forcing the Court to return the file for additional investigation 3.3.3 Limitations and omissions in the stage of first instance trial of embezzlement of property First, the procurator's questioning at trial At the trial, due to the inattentiveness of listening and taking notes, there were cases where the prosecutor asked again what the jury had clarified; The question did not reflect the intent to ask, did not show the 17 struggle to clarify the fraudulent tactics of misappropriation of property, but hastily accepted the defendant's answers Second, on the presentation of impeachment, argument at trial Some indictments have sketchy contents, unsatisfactory, have not analyzed documents and evidence to prove the offense; The content is long, dangling, repeating ideas, not focusing on analyzing and evaluating evidence Due to the failure to anticipate the issues to be debated, in some cases when the defense, defendant or those attending the trial raise the issue of rebuttal, some prosecutors lose their temper and are confused, leading to arguments without making a convincing argument Third, limitations in appeals against the judgment of first instance In many cases, the procuracy fails to promptly detect violations in order to issue an appellate appeal decision against a first instance verdict whose contents are inconsistent with the circumstances, nature and extent of the offense clarified at the trial 3.4 Causes of limitations and shortcomings in the exercise of prosecutorial power for the crime of Embezzlement of Property 3.4.1 About subjective causes First, prosecutors have not raised their awareness, sense of responsibility and professional qualifications in exercising their prosecutorial power for embezzlement of property Secondly, the management and executive direction of prosecutors assigned to exercise the right to prosecute embezzlement of assets is still not strict and timely Third, professional guidance, inspection and learning activities have been paid attention to but not regularly; No concrete measures have been taken Fourth, some prosecutors have not actively coordinated in cases where the case has many complicated circumstances, views on evaluating evidence and documents and determining the consequences of embezzlement of assets Fifth, skills in synthesizing and evaluating evidence and documents are limited 18 Sixth, the training and fostering of capacity, qualifications and skills to exercise prosecutorial power for prosecutors has not been paid enough attention 3.4.2 About objective causes Firstly, due to pressure from the workload and human resource structure of the Procuracy industry Secondly, the subjects of the crime of embezzlement of property are people with powerful positions, high positions in agencies, organizations and enterprises, with very good economic potential, with in-depth knowledge of the field of crime, so they have the ability to hide their acts Third, there are difficulties in accessing information about the crime of Embezzlement of Property because the offender conceals relevant documents and evidence Fourth, relevant legal provisions are limited CHAPTER 4: REQUIREMENTS AND SOLUTIONS TO IMPROVE THE QUALITY OF PRACTICING PROSECUTION RIGHTS FOR THE CRIME OF PROPERTY EMBEZZLEMENT IN THE FUTURE 4.1 Requirements to ensure the improvement of the quality of the exercise of prosecutorial power for the crime of Embezzlement of Property Demand the building of a socialist rule of law; Request the fight against the crime of Embezzlement of Property; Requirements for ensuring human rights in criminal proceedings; International integration requirements; Requirements for socio-economic stability and development, building a just, democratic and civilized society; Request recovery of lost or misappropriated property 4.2 Solutions to improve the quality of the exercise of prosecutorial power for the crime of Embezzlement of Property 19 4.2.1 Solutions to improve laws and implementing documents on the exercise of prosecutorial power for the crime of Embezzlement of Property 4.2.1.1 Complete some provisions of the Criminal Procedure Code 2015 Firstly, supplementing Article 147 of the BLTTHS in 2015 in the direction of allowing competent agencies more time limit to conduct inspection, verification and clarification of acts of embezzlement of assets to determine whether or not there are signs of embezzlement Secondly, supplementing the content of requesting the investigating agency to promptly provide documents and evidence in the stage of settling sources of information about crimes so that the procuracy can conditionally and exercise the prosecutorial power Third, amend the provisions on asset disclosure and account freezing in the direction of expanding the scope of application in the period of solving criminal sources Fourth, competent agencies should issue instructions on grounds for not applying detention measures specified in Clause 4, Article 119 BLTTHS The Criminal Procedure Code 2015 regulates "elderly and weak people" and "seriously ill people" Accordingly, the regulations on "elderly people" and "seriously ill people" in Resolution 01/2007/NQ- HDTP should be instructed to apply to grounds where detention measures are not applied in Clause 4, Article 119 BLTTHS 2015 Fifth, amend Articles 307, 209, 310, 311 BLTTHS 2015 on the questioning process in the direction of: Questioning the defendant, the victim, and witnesses … To clarify the details of the case is the right and responsibility of the prosecutor and defense counsel The prosecutor, who exercises prosecutorial power at trial, must conduct the questioning first and be the main questioner, followed by the defense Sixth, repealing the regulations leads to the understanding that the Court has an accusatory function in criminal proceedings Seventh, regarding the limitation of trial, paragraph of Article 298 BLTTHS of 2015 should be amended in such a way that "In case it is considered necessary to try the accused for a crime more serious than the one 20 prosecuted by the procuratorate, the Court shall return the file for the procuracy to re-prosecute and clearly notify the reasons to the accused or his representative, the defense knows; if the Procuracy retains the charge charged, the Trial Court under the charge prosecuted by the Procuracy” Eighthly, regarding the decision to withdraw the decision to prosecute at the trial of the procuracy mentioned in Articles 319, 325 and 326 of the BLTTHS of 2015, it is necessary to amend it in the direction that: In case at the trial the procuracy withdraws part of the prosecution decision, the court shall only try the part that is not withdrawn from the prosecution decision Ninth, supplementing legal provisions in the direction of giving the procuracy the right to direct investigations and take primary responsibility for investigative work in order to ensure the effective exercise of the state's prosecutorial power 4.2.1.2 Amending law enforcement guidelines related to the fight against crime in general and embezzlement of property in particular First, it is necessary to add the following content: "For denunciations, crime reports and prosecution recommendations, within 24 hours the investigating agency must transfer to the procuracy with documents and evidences for the procuracy to perform its tasks as prescribed by law" in Clause 1, Article 13 of Joint Circular No 01/2017/TTLT-BCA-BQP-BTCBNN&PTNT- Supreme People's Procuracy dated 29/12/2017 of the Ministry of Public Security - Ministry of National Defense - Ministry of Finance Ministry of Agriculture and Rural Development - Supreme People's Procuracy Second, competent agencies should coordinate to provide specific guidance on the application of special investigative measures Thirdly, in order to ensure the effective recovery of assets seized or damaged by acts of embezzlement, procedural agencies should study and promulgate legal documents guiding the application of measures to recover corrupt assets, including embezzled property Special consideration should be given to temporary emergency measures 21 4.2.1.3 Perfection of the Law on Mutual Judicial Assistance It is necessary to formulate regulations on the scope, order and procedures for mutual judicial assistance activities on asset recovery and handling the issue of commitment not to execute the death penalty against offenders in cases of mutual criminal justice assistance At the same time, competent agencies in mutual judicial assistance should provide guidance on implementation in order to improve the quality of making dossiers of requests for mutual criminal justice assistance Expeditiously negotiate, sign and implement international agreements on mutual assistance in criminal justice In addition, the PhD student proposed some other solutions such as: Strengthening the direction of the Leader in exercising the prosecutorial power for the crime of Embezzlement of Property; To raise awareness, enhance responsibilities and provide professional training for procurators in exercising their prosecutorial power for embezzlement of property; Strengthen the coordination relationship between the Procuracy and relevant agencies CONCLUDE With the function of exercising prosecutorial power in accordance with the Constitution, the Procuracy has the task of ensuring that criminal acts as well as those who commit crimes of embezzlement of property are handled in accordance with the provisions of law, avoiding cases of wrongdoing of innocent people or neglect of criminals and offenders Through research, reference to various scientific works, the thesis clarified the concepts, scope and objects of the exercise of prosecutorial power for the crime of Embezzlement of Property With the application of analytical and synthetic research methods The thesis clarified specific activities that fall under the exercise of prosecutorial power for the crime of Embezzlement of Property at various stages of the proceedings On the basis of research on the theory and basis of the criminal procedure law on the exercise of prosecutorial power, the thesis analyzes the current status of data on the exercise of prosecutorial power for the crime of Embezzlement of 22 Property every year Thereby, the thesis assesses the results and limitations in the performance of this position The results of the study on the situation show that the Procuracy has made many efforts and actively carried out the fight against this crime through the exercise of prosecutorial power in different stages of criminal proceedings Procuracy units have promoted and applied well the legal provisions on tasks and powers when exercising the prosecutorial power, contributing to ensuring efficiency and quality in prosecution, investigation and trial for the crime of embezzlement of property In addition, the practice also reflects that the exercise of prosecutorial power for the crime of Embezzlement of Property still exists and is limited, stemming from various subjective and objective causes leading to serious consequences such as improper handling of the case, neglect of the crime or wrongful wrongdoing of the innocent With the results of research on the current situation, the thesis has clarified the requirements and directions of improving the quality of the practice of prosecutorial power for the crime of Embezzlement of Property in the coming time At the same time, in order to overcome limitations in the exercise of prosecutorial power for the crime of Embezzlement of Property, to ensure the prosecution of the case against the accused for the right crime, to collect sufficient documents and evidences to limit the return of additional investigation files between the procedural agencies, To minimize the case of prosecution by the Procuracy, the Court finds the accused not guilty of embezzlement of property, commits another offense or cancels it for retrial investigation, the thesis has offered some solutions as follows: - Complete a number of provisions of the Criminal Procedure Code in 2015; promulgate law enforcement guidelines related to the exercise of prosecutorial power in cases in general and embezzlement of property in particular; complete the Law on Mutual Judicial Assistance so that competent agencies can conduct judicial assistance activities and recover embezzled assets effectively 23 - The Procuracy should implement the following solutions: strengthen the direction of leaders; raise awareness and responsibilities of procurators assigned to exercise prosecutorial power for embezzlement of property; strengthen the relationship between responsible agencies in resolving property embezzlement cases; step up judicial assistance activities in settling cases of embezzlement of assets with foreign elements;… 24
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