hoạt động xét xử sơ thẩm vụ án hình sự của tòa án nhân dân cấp tỉnh tại miền đông nam bộ việt nam hiện nay astract

VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES LE VAN QUYEN Court of the first instance of criminal cases of the provincial People's Court in Southeast Vietnam nowadays Major: Criminal Law and Criminal Procedure Major code: 62.38.01.04 ABSTRACTTHESIS LAW DOCTORAL THESIS Ha Noi - 2017 PERFECT WORKS ARE GRADUATE ACADEMY OF SOCIAL SCIENCES SCIENTIFIC ADVISORS: DR Tran Thi Quang Vinh DR Nguyen Van Diep The first Scientifi critic: Associate Professor Ph.D Trần Văn Độ The second Scientifi critic: Associate Professor Ph.D Cao Thị Oanh The thirth Scientifi critic : Associate Professor Ph.DNguyễn Văn Huyên The dissertation will be protected at the thesis-dissertation panel of the Academy, meeting at the Academy of Social Sciences By the day of the month .in 2017 The dissertation can be found at: - National Library - Library of the Academy of Social Sciences OPENING Necessity of the research Trial is the act in the name of state power, which is done by the court to solve criminal, civil, marriage and family, economic, administrative and labor cases Therefore, judgments and decisions of the Court are guaranteed by the power of the state Court of the first instance is determined to be the end of the process of resolving a criminal case, in which every documents and evidence of cases collected by investigating bodies and procuracies collected in the course of investigation and prosecution shall all be publicly considered at court sessions In other words, court of the first instance is considered the culmination of the judicial power at the court During this stage, the rights and obligations of the procedure-conducting persons and the persons participating in the proceedings are fully and publicly served, and also concerns of the accused, the victim and other participants in the proceedings are resolved at the trial In the Southeast region of Vietnam, there are provinces and cities under the Central Government: Ho Chi Minh City, Dong Nai, Tay Ninh, Binh Duong, Binh Phuoc, and Ba Ria - Vung Tau Corresponding to these provinces and cities are established provincial People's Courts, with the function of adjudicating criminal cases under the jurisdiction of the provincial People's Courts The report of the 10-year review of the implementation of Resolution No 49 of the Politburo on the Judicial Reform Strategy up to 2020 of the People's Courts of the Southeastern Provinces shows that: the activities of trial in general and trial of criminal cases in particular of the provincial People's Courts in the Southeast region has contributed to preserving political security, order and safety and creating a stable environment for the socio-economic development in the Southeast region Specifically, according to the report of the trial activities of the People's Courts of the Southeastern region, the criminal cases are always increasing every year, the quality of trial activities in some courts remains some issues to be concerned The proceedings still lack of bases or have errors that lead to the cancellation or modification of judgments This has affected the rights and legitimate interests of citizens, human rights and affects the belief of the people in the system of judicial bodies in the Southeastern provinces of our country The author has an awareness and desire to clarify the factors affecting the quality of activities in court of the first instance of criminal cases of the Provincial People's Courts in the Southeast of Vietnam At the same time, from theoretical and practical research, the author also proposes solutions and recommendations to improve the quality of the court of the first instance of criminal cases of the provincial people's court in Southeast Vietnam This will also meet the requirements of Resolution No 49-NQ/TW dated 02/6/2005 of the Politburo on the judicial reform strategy of our country up to 2020 For these reasons, the author chose the topic "Court of the first instance of criminal cases of the provincial People's Court in Southeast Vietnam nowadays" to be the doctoral dissertation Research purposes and tasks 2.1 Research purposes Firstly, the study proposes solutions to improve the quality of the court of the first instance of criminal cases by provincial People's Courts, so that the judgments and decisions of the Courts can be pronounced properly, accurately and in accordance with law; Court judgments and decisions are not faulty or leave out criminals Secondly, it studies the court of the first instance of the criminal case of the provincial people's court in the Southeast region in order to propose solutions to meet the requirements of combating crimes and protecting human rights, citizenship in accordance with the requirements of building a socialist rule-of-law state Thirdly, the researcher finds subjective and objective causes that affect the quality of judicial activities On this basis, the author proposes solutions to improve the quality of court of the first instance of criminal cases by provincial People's Courts in criminal proceedings in the spirit of judicial reform in Vietnam nowadays 2.2 Research tasks To complete the thesis, the author has set out the following tasks Firstly, the theoretical study of court of the first instance for criminal cases serves as the foundation for the author to determine how judicial activities differ from that of the legislature or the executive bodies On the basis of that argument, the author develops the concept, characteristics and role of the trial panel of Criminal Cases Second task is the development of assessment criteria for the performance of court of the first instance of criminal cases by provincial People's Courts Third is the study the provisions of the criminal procedure related to activity of court of the first instance of criminal cases Fourth, the study looks into legal provisions related to court of the first instance and the practical application of these regulations by provincial People's Courts, and finds out the causes of constraints and obstacles met when applying the regulations set in trial practice Fifth, the study researches practical implementation of court of the first instance of criminal cases by Provincial People's Courts in the Eastern South from 2006 to 2015 Subjects and scope of research 3.1 Research subjects First, theoretically, the author focuses on studying the provisions of criminal procedure law relating to the court of the first instance of criminal cases; Secondly, in practice, the author researches quality of court of the first instance of criminal cases by the competent entities involved in court of the first instance of criminal cases activities at provincial level, as provided in the Criminal Procedure Code (2003); Third, the paper studies the quality of the outcome and first instance verdict of provincial People's Courts 3.2 Research scope First, theoretically, the author focuses only on the provisions of the Criminal Procedure Code on the preliminary trial of criminal cases of provincial People's Courts, from the step of receiving the case to the time of the Court's pronouncement, petition or protest Second, in practice, the paper studies the difficulties in the Criminal Procedure Code and legal documents related to trial activities Third, in terms of study time and space, the author studies about activities of court of the first instance of criminal cases of provincial People's Courts in the South East of Vietnam from the year 2006 to 2015 Methodology and methods of the research As regards methodology, the study bases on the Marxist-Leninist worldview of state and legislation, as well as Ho Chi Minh Thought about rule of law In terms of research methods, the author uses a number of methods: statistics, comparison, aggregation and sociological investigation New contributions of the thesis First, the author examines the judicial activity of the People's Courts with an approach from the judiciary activities and gives the general concept of trial Basing on that concept, the author develops the concept of court of the first instance of criminal cases activities of provincial People's Courts Second, the author develops the criteria and conditions to ensure court of the first instance of criminal cases On the basis of these criteria, the author investigates and evaluates the status of trial activities Third, the author analyzes subjective and objective causes that affect the activities of court of the first instance of criminal cases of the provincial People's Court in the Southeast of Vietnam nowadays Fourth, the author proposes suggestions to improve the quality of court of the first instance of criminal cases activities of provincial People's Courts in the Southeast region Fifth, from the results of the study of practical data on court of the first instance of criminal cases activities of provincial People's Courts in the Southeast, it will be a scientific basis to help state agencies to continue implementing well the Criminal Procedure Code in 2015 Theoretical and practical significance of the thesis 6.1 Scientific significance The author's research can be used as a source for research or teaching of legal science in general and training judges in particular On the other hand, the contents of the dissertation can also contribute to the building of the skills of investigation of documents, judicial skills and skills involved in the proceedings of judicial teams, people's jurors, Prosecutor and lawyers under the demand for judicial reform of the country 6.2 Practical significance The author has accesses judicial proceedings of the People’s court from trial preparation to trial activity at the trial session The author also analyzes the shortcomings and limitations of the trial The research results of the author are the basis for contributing to the theoretical development related to judicial activities, proposing solutions to continuously improving the quality of judicial activities of the People's Courts in the judicial reform process happening now in our country Structure of the thesis In addition to the introduction, conclusion and bibliography, the content of the thesis consists of four chapters: Chapter 1: Overview of related research Chapter 2: Theory of court of the first instance of criminal cases Chapter 3: Provisions of the Procedure Code 2003 on court of the first instance of criminal cases and implementation practices at provincial People's Court in the Southeast of Vietnam Chapter 4: Requirements and solutions to improve the quality of court of the first instance of criminal cases by the provincial People's Courts Chapter AN OVERVIEW OF RELATED RESEARCH 1.1 RESEARCH IN VIETNAM 1.1.1 Theoretical studies and general regulations related to court of the first instance Many research papers refer to the theoretical issues related to the trial of criminal cases of the People's Courts in Vietnam Prof Dr Vo Khanh Vinh produces "Curriculum of law enforcement agencies" published by the People's Public Security Publishing House in 2003, which consists of 15 chapters The content of this monograph specifically analyzes the basic concepts of object and system of legal enforcement bodies, regulations on law enforcement agencies; judicial power and judicial system The monograph "Human Rights Protection and Assurance Mechanisms", edited by Prof Dr Vo Khanh Vinh, includes many articles related to Human rights protection mechanisms in the judicial process such as: "Improving the human rights protection mechanism in criminal proceedings in Vietnam through the principle of presumption of innocence and “mechanism for protection of human rights by the Courts in Vietnam” 1.1.2 Studies concerning quality of court of the first instance of criminal cases, the principle of procedure to ensure the quality of court of the first instance The scientific project co-authored by Assoc Prof Hoang Thi Minh Son, "Improving criminal procedure law to improve the effectiveness of court of the first instance in the spirit of judicial reform" [87] has summarized shortcomings in the Criminal Procedure Code and give recommendations related to the criminal proceedings, including the activities of the People's Courts Regarding trial activities, there is an article by Assoc Prof Ho Si Son: "The role of procurator, supervisor in judicial activity", Journal of Law and State, No 09, 1994 [85] and article "Perfecting the relationship between the Court and the Procuracy in the course of handling criminal cases", Journal of State and Law, Vol 02, 2005 [86], the author has analyzed the role the role of the Procuracy in the process of exercising the right to prosecution and controlling the adjudication of the People's Courts and some obstacles on the coordination mechanism between the People's Courts and the People's Procuracies 1.1.3 Studies about preparation for trial and court of the first instance of criminal cases A number of monographs as well as articles on pre-trial preparation and trial such as the article "Preparation for criminal cases - some theoretical and practical issues" by Ass Prof Dr Pham Hong Hai Journal of State and Law, No 6, 1999 [40] analyze the role of judges in the pretrial preparation stage, and also the obstacles to the filing of additional records In addition to these articles, there is the master thesis "Preparation for court of the first instance of criminal cases - Current situation and solutions" by Bui Thi Hong [47] These works have helped the author with an approach to the role and significance of pretrial preparation in helping the Court perform correctly the function of examining and evaluating the nature and extent of the circumstances of the case before bringing the case to trial 1.1.4 Studies concerned with the application of law in judicial work and the improvement of the legal system on justice In the dissertation for Doctor in Law, "Application of the law in trial of the People's Court System in Vietnam" [90] by Le Xuan Than, the author has systematically analyzed the concept, characteristics of the application of the law in general and the application of the law in criminal proceedings in particular At the same time, the author has studied the factors that directly influence the application of the law of adjudication, from legal factors to human factors, and offers a number of solutions to improve efficiency of application of law in trial of criminal cases in our country In addition to the above works of Dr Le Xuan Than, there is also a doctoral dissertation on "Sanctions on criminal liability in Vietnamese criminal law" [51], which analyzes criminal responsibility as a legal consequence that the offender take before the State due to committing the offense The application of criminal sanctions to offenders results in the offender being subjected to coercive measures (penalties, judicial remedies) of criminal law Therefore, the application of criminal justice legislation should be implemented correctly 1.2 INTERNATIONAL RESEARCH 1.2.1 Studies on trial proceedings according to the case law system (United Kingdom – United States) Concerning the limitation of trial, there is a book titled "Supreme Court Powers – Cases that must be, can be and cannot be brought to trial" by Professor John Paul Jones of the University of Richmond [55] He has analyzed very precisely the jurisdiction power of US Federal Courts and District Courts in adjudication and binding on the liability of each court in trial Regarding the way the system operates, the book "Supreme Court of the United States", by Charles Evans Hughes, Judge of the United States Supreme Court stated that The United States Supreme Court, when exercising its judicial functions, duties or final jurisdiction has to direct to federal law and decisions cannot be left to the state courts to decide 1.2.2 Studies on judicial activity in accordance with continental European law (the French Republic and the Federal Republic of Germany) The study of the Federal Republic of Germany and the French Republic prosecution models has helped the author to better understand the organization of court system of the Federal Republic of Germany and the Republic of France, as well as the Code of Conduct when dealing with a criminal case These articles help the researcher to be equipped with the theoretical background of judicial interrogation in some countries around the world, which is the basis for the author to see how the organization operates in Vietnam now 1.2.3 Studies on judicial activity of several countries in the AsiaPacific region Through the study of the criminal procedure model and the principles of the trial of criminal cases in China and Japan, the authors realize that the papers of oneself only show the analysis of the principles of criminal procedure, criminal evidence and highlight the advantages of models of litigation, prosecution and interrogation proceedings 1.3 EVALUATION OF THE RESEARCH SITUATION AND ISSUES OF FOCUS OF THE PAPER 1.3.1 Evaluation of the research situation For research in Vietnam The authors have scientifically studied the workings of the judiciary bodies, the advantages and disadvantages of litigation models Noticeably, some works have analyzed the stages of criminal procedure in our country and the meaning of each stage of criminal proceedings For international research Studying overseas works related to judicial activity gives the author a comprehensive comparison of international litigation models and provides objective and scientific evaluation of the proposition in order to build a model of legal proceedings in Vietnam to meet the socio-economic conditions in the near future 1.3.2 Issues of focus of the research The thesis focuses on the following fundamental contents: First, theoretically, the author studies theoretical issues related to the court of the first instance of criminal cases Second, in practice, the author focuses on studying the provisions of the Criminal Procedure Code 2003 relating to adjudication, obstacles in application of the provisions of the Criminal Procedure Code that affect the quality of the court of the first instance of criminal cases of the provincial People's Courts Third, in order to have the basis for the study, the author collects a number of court of the first instance of criminal cases conducted by provincial People's Courts that were appealed or protested; as well as violations in the application of the Criminal Procedure Code 2003 and their causes Fourth, from the actual situation of trial activities, the author of the dissertation proposes the requirements and recommendations to improve the quality of the court of the first instance of criminal cases of the provincial People's Courts in the Southeast region in particular and the whole country in general Chapter THEORY OF COURT OF THE FIRST INSTANCE OF CRIMINAL CASES 2.1 DEFINITION, CHARACTERISTICS, CONTENTS, MEANING OF COURT OF THE FIRST INSTANCE OF CRIMINAL CASES 2.1.1 Definition of court of the first instance of criminal cases Through the study of documents related to the activities of judicial authorities both in Vietnam and abroad as well as from the provisions of the Criminal Procedure Code 2003, the author developed the concept of court of the first instance of criminal cases as follows: Definition of court of the first instance of criminal cases: Court of the first instance of criminal cases is the function of exercising the judicial power of a state performed by a court at the first level of trial, in which the court reviews all documents and evidence related to the criminal case, on the basis of public disputes at the trial, the court issues a judicial or procedural decision to declare a person guilty or not guilty, to apply or not to apply penalties and resolve other problems involved in criminal cases By analyzing the characteristics of court of the first instance of criminal cases, the author develops the concept of court of the first instance of criminal cases activities of the Provincial People's Courts as follows: Human rights are "sacred" and protected by the Constitution and the law Through adjudicating activities, the legitimate rights and interests of individuals and organizations are ensured when being infringed upon, and the offenders know what is guilty of their offense and how criminal acts are defined in the Penal Code 2.2 CRITERIA FOR QUALITY EVALUATION OF COURT OF THE FIRST INSTANCE OF CRIMINAL CASES In order to assess the quality of the trial activity, the author shall base on the purpose of the proceedings, the purpose of the trial of the court The author has built up the following criteria: First, about the time to resolve the case Second, on the form of court hearings Third, on the application of procedural decisions related to trial activities Fourth, the quality of first instance criminal judgment Fifth, the sentence must meet the requirements of society 2.3 OVERVIEW OF THE CRIMINAL PROCEDURE OF VIETNAM FOR THE OBSERVATION OF COURT OF THE FIRST INSTANCE OF CRIMINAL CASES UP TO 2003 To have a basis for studying the trial activities of the People's Courts, the author has studied the criminal law of the country through historical periods of the country such as: Feudal period French Colonization Period The period from the August Revolution to 1954 The period from 1954 to 1975 The period from 1975 to 1988 The period from 1988 until 2003 Chapter PROVISIONS OF CRIMINAL PROCEDURE CODE 2003 ON COURT OF THE FIRST INSTANCE OF CRIMINAL CASES AND IMPLEMENTATION PRACTICES AT PROVINCIAL PEOPLE'S COURT IN THE SOUTHEAST OF VIETNAM Provisions of the Procedure Code 2003 on the court of the first instance of criminal cases and implementation practices at the Provincial People's Court in the Southeast of Vietnam 11 3.1 PROVISIONS OF CRIMINAL PROCEDURE CODE 2003 ON COURT OF THE FIRST INSTANCE OF CRIMINAL CASES 3.1.1 Regulations on first instance jurisdiction Jurisdiction power in court of first instance according to cases The Criminal Procedure Code 2003 provides for case-by-case jurisdiction to determine jurisdiction between courts at all levels The determination of jurisdiction according to the case is based on the nature of the offense Jurisdiction by subject matter, jurisdiction over the main object is the separation of judicial power between the People's Courts and the Military Courts based on the offender Territorial jurisdiction of the People's Courts, as provided for in Article 171 of the Criminal Procedure Code in 2003, is the determination of jurisdiction based on where the crime was committed and the place where the investigation ended 3.1.2 Regulations on preparation for court of the first instance of criminal cases After accepting the case, the chief judge shall assign the judge to study the documents and evidence in the case, which is the procedural act of the court which initiates the new stage of legal proceedings: court of the first instance During the preparation for hearing, the Judge shall study the circumstances of the case and shall, based on the provisions of the Criminal Procedure Code, make decisions such as: First, decision on cancellation or changing preventive measures Second, the decision on returning of the case file for additional investigation, dismissal or temporary suspension of the case Third, decision on the decision to bring the case to trial 3.1.3 Regulations on jurisdiction power During the process of accepting the case, the judge is assigned to handle the case file and must determine whether the case falls under the jurisdiction of the provincial People's Courts or not If the power falls under the competence of the provincial People's Courts, they shall continue carrying out the proceedings to settle the cases If not within its jurisdiction, the proceedings shall be conducted to transfer the case to the competent court for settlement 3.1.4 Regulations on trial limits The limitation of hearing is stipulated in Article 196 of the Criminal Procedure Code 2003 "the court shall only adjudicate the defendants and the offense which the prosecutor has prosecuted and the court has decided 12 to taken to trial The court may treat the defendant in a different way than the prosecutor has prosecuted under the same law or another offense equal to or less serious than the offense the prosecution has prosecuted 3.1.5 Content of court of the first instance Firstly, the procedure to start the trial Second, the interrogation procedure at the trial Third, debate at the court of the first instance Fourth, active deliberation activities Fifth, sentencing activities 3.2 THE PRACTICE APPLICATION OF THE CRIMINAL PROCEDURE CODE 2003 ON COURT OF THE FIRST SENTENCE OF PROVINCIAL PEOPLE'S COURT IN THE SOUTHEAST REGION 3.2.1 Time frame to solve criminal cases Regarding the time to resolve the case, Time to resolve a criminal case is still long In particular, real study of 2743 criminal cases that were adjudicated, if counting from the time the case was prosecuted to the time the case was brought to trial, it shows that 697 cases last for months; 1059 cases last for months, 574 cases last for 12 months; 376 cases last for 24 months, and especially 37 cases with the duration of up to years (Le Ba Mai case, Nguyen Quang Hoa case, Thai Hoang Trong case) Regarding the number of remaining cases in the year, the data on the annual criminal cases of the People's Courts of the Southeast provinces, basically most of the crimes have been handled, the annual average proportion of remaining cases was about 3.98% Specifically, it is shown through the following table: Table 3.1 Number of processed cases Number and cases brought to trial, Number of overdue cases Number Court 01 Ho Chi Minh City 02 Dong Nai 03 Ba Ria – Vung Tau 04 Tay Ninh 05 Binh Duong 06 Binh Phuoc Total Number of processed cases Number of cases brought to trial Number of overdue cases Percent 7945 2309 2178 7641 2249 2068 304 60 110 3,82 % 2,59 % 5,01 % 2216 2576 1072 18296 2149 2449 1011 17567 67 127 61 729 3,02 % 4.93 % 5.69 % 3,98 % 13 3.2.2 On jurisdiction and trial limits The jurisdiction in accordance with the provisions of the Criminal Procedure Code 2003, there are many inadequacies, unclear delineation between competence level according to the case, competence according to the object and territorial jurisdiction The limitation on judicial proceedings also restrains Court's right to independence 3.2.3 On the accuracy of the issuance of procedural decisions during the pretrial preparation stage In real situation from 2006 to 2015, preparatory activities of court of the first instance of criminal cases, Provincial People's Court in the South East have handled cases with data that are aggregated annually as follows: Table 3.2 Number of VAHS at the provincial People's Courts in the eastern region of Southern Vietnam process and return the file for additional investigation, suspension, suspension and prosecution judging from 2006 to 2015 Decision to Number of Decision to Decision to return for Year processed suspend the bring the case additional cases cases to trial investigation 1576 36 20 1520 2006 1689 71 31 1587 2007 1660 21 1632 2008 1772 78 37 1657 2009 1798 41 25 1732 2010 1813 73 29 1711 2011 1891 66 32 1793 2012 1937 28 15 1894 2013 2043 40 11 1992 1014 2117 60 2049 2015 18296 514 217 17567 Total Source: Summary of data of court of the first instance of provincial People's Court from 2006 to 2015 From the summary table 3.1 of data for the years 2006 to 2015, basing on the statistics (table 3.1), these issues are demonstrated: First, the decision to return the records for additional investigation Second, about the suspension of the case Third, the decision to bring the case to trial 14 Generally, decisions during the preparation for adjudication have been issued, but besides, due to various reasons, there have been cases where cases of issuance of procedural decisions have not been timely, or not been correct, which affects the legitimate rights and interests of the accused or defendants 3.2.4 Content of the court of the first instance of criminal cases - Procedures for commencing court of the first instance of criminal cases - About the interrogation activities at the trial + Interrogation activities of the Judge + Interrogation activities by people's jurors - On the debate at the trial - The outcome of the litigation, - On deliberation activity - On sentencing activities 3.2.5 The reality of stringency and general prevention For 10 years, the provincial People's Courts in the South East have done well the task of judicial work Criminal sentence has served the right person guilty of crime, which has contributed to ensuring the maintenance of security, order and general prevention However, there are also many verdicts after the declaration that have not been convincing to general public, and many of the verdicts were reported by the media agencies doubting about the authenticity and persuasiveness of the case, many cases were prolonged more than usual to resolve Many inmates who have completed the sentence got back to criminal activities Thus, on a certain level, it is found that the sentence does not guarantee general deterrence and prevention 3.3 Situation of the first instance judgment being appealed, protested, results of the appellate trial, wrongful violations in the application of the Criminal Procedure Code 2003 into adjudication activity and their causes 3.3.1 The situation of the first-instance judgment being appealed, protested and the result of the hearing of the appeal From 2006 to 2015, the Provincial People's Courts in the Southeast of Vietnam have adjudicated 13,646 criminal cases in the first instance, in which the number of cases subject to annual appeals varies as follows: Extracted data from Table 3.2 and 3.6 Number of cases Number of cases Percentage Year being appealed brought to trial % again 15 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 1559 1738 89,7 % 1279 1533 83,43 % 1244 1336 93,11 % 906 1240 73,06 % 682 1184 57,6 % 457 1955 23,37 % 485 1125 43,11 % 490 1161 42,2 % 524 1179 44,44 % 546 1195 45,69 % Total 8172 13646 In 2006, the People's Court judged 1738 cases of first instance, in which 1559 cases were appealed, the appeal rate is 89.7% By 2015, the total number of cases handled by the provincial court in the Southeast was 1195 cases, in which there are 546 appeals or protests, the rate accounted for 45.69% Table 3.2 Number of cases being appealed or protested and the results of those cases Result of court of the first instance Total number of cases being appealed or protested Total number of offenders 2006 694 749 2007 719 2008 Year Amendment of the convictions Court of first instance Suspension of court of the first instance ProceedCrimes ings left infringuntried ement 27 29 More severe sentence Less severe sentence Amended as civic Not guilty 667 11 771 691 12 15 20 27 783 820 751 11 16 15 19 2009 754 791 722 11 24 22 2010 775 818 744 18 19 20 2011 769 790 738 14 17 10 2012 805 836 773 20 18 17 2013 895 923 860 7 19 21 2014 993 1037 954 15 12 21 26 2015 991 1018 952 16 10 16 15 Tatal 8178 8562 7852 79 123 100 196 206 Source: Appeal Court – The Supreme People’s Court of Ho Chi Minh City 16 First, the status of maintaining the verdict of court the first instance Basing on the analysis of data from Table 3.2, the Court of Appeal's verdict rate of remaining unchanged throughout the years is as follows: Cases being Maintain court of the Year Rate appealed first instance 71.58% 2006 1559 1116 73.72% 2007 1279 943 72.34% 2008 1244 900 74.06% 2009 906 671 69.35% 2010 682 473 68.49% 2011 457 313 65.97% 2012 485 320 69.79% 2013 490 342 71.56% 2014 524 375 71.79% 2015 546 392 Average 70,82% From 2006 to 2015, the outcome of court of the first instance, the retention rate of the first instance verdict was 70.82% First, for 10 years, the provincial People's Courts in the Southeast province adjudicated 13646 criminal cases The number of cases that were appealed and the outcome of the court of appeal that missed out on criminals was 109 cases and violation of criminal proceedings was 158 cases Second, the statistics for the first-instance court for criminal crimes that were amended by the court of appeal For 10 years, the provincial People's Courts in the Southeast province adjudicated 13,646 criminal cases Of the total number of cases brought to trial, still many cases after being sentenced by the court of first instance were appealed or protested The Court of Appeal corrected these cases Specifically, there were 501 cases of aggravation of penalties, 1206 cases of reducing penalties, 348 cases of amending civil liability, and nonoffenses recorded 3.3.2 Violations in the application of the provisions of the Criminal Procedure Code 2003 to the first-instance trial of criminal cases First, wrongful identification of the litigant 17 According to aggregated data from Table 3.2, the number of crimes left untried was 109 cases and 158 cases were dropped due to procedural violations Of the total of 158 cases of procedural violations, there were 51 cases of procedural violations due to wrong determination of the persons involved in the proceedings and the guardians Second, wrongful identification of evidence in the case Specifically, through the study of 158 cases of procedural violations, 69 cases identified the wrong evidence Third, the wrong identification of components of the jury Of the 158 cases that were canceled due to procedural breach, 38 cases had incorrectly identified the composition of the jury and jurisdiction Fourth, the violation of time to resolve the case Annually, many cases still remained untried, the time to resolve a case is still too long Fifth, the violation of the principle of litigation The Criminal Procedure Code 2003 has not materialized the litigation as a principle, and the rules of procedure are only scattered in some articles of the code, so it does not bind on the responsibility of the Procuracy to fully join in with this responsibily, and also lawyers have not fully played his role in the litigation 3.3.3 The causes of inappropriateness in the application of the provisions of the Criminal Procedure Code 2003 relating to adjudication activity Through investigating, reviewing cases that have been canceled, altered, and placed in relation to operational quality assurance conditions, it can be indicated that some of the causes of erroneous application of the provisions of the CPC 2003 in adjudication are: First, the inadequacies of Criminal Procedure Code 2003 relating to judicial activity Second, the inadequacies of the Criminal Procedure Code 1999 Third, the judicial capacity of the judges Fourth, the judicial capacity of the people's jurors Fifth, the litigant capacity of lawyers and procurators 18 Sixth, the coordination mechanism in the trial operation Seventh, inadequate equipment for the trial Chapter REQUIREMENTS AND SOLUTIONS TO IMPROVE THE QUALITY OF ACTIVITIES OF COURT OF THE FIRST INSTANCE OF CRIMINAL CASES BY PROVINCIAL PEOPLE'S COURTS 4.1 REQUIREMENTS AND SOLUTIONS TO IMPROVE THE QUALITY OF ACTIVITIES OF COURT OF THE FIRST INSTANCE OF CRIMINAL CASES OF THE PEOPLE'S COURT OF THE PROVINCES IN THE SOUTHEAST REGION 4.1.1 Requirement of judicial reform First, bodies conducting legal proceedings: the investigating bodies, the procuracies and the courts shall perform each procedural function, and the agencies shall bear independent responsibility for the evidences and decisions during the implementation of the proceedings Second, it is required when conducting trial activities to ensure objectivity and strictly follow the two-level trial Thirdly, the request for trial activities, the right to defense of the accused or defendants should be properly exercised Fourth, it is an urgent necessity to apply case law method in the trial Fifth, the Courts are required to renovate the administrative-justice work This is to publicize and clarify the activities of the Court; to renovate the judicial administrative procedures, eliminate unnecessary papers and procedures, apply the one-door procedure; apply information technology into administrative and judicial activities of the Court Sixth, it is demanded to raise political and ideological education for court officials Every year, the leaders of the court should promote the movement of stuyding and following Ho Chi Minh's example for the court staff Particularly, the Judge team need to implement well the code of conduct, the moral of the service and the spirit and sense of devotion to serve the people 4.1.2 Requirement to ensure rule of law principles in adjudication Trial activities of the Court are activities of settling disputes in society, handling law violations The activity is directly related to the rights and interests of people and of citizens Therefore, the court's adjudicating activities must comply with the principle of adjudication This 19 is the foundation for ensuring the quality of judging, protecting the human rights, legitimate rights and interests of organizations and individuals 4.1.3 Requirement of protection of human rights in adjudication It is necessary to protect human rights in adjudicating activities, and this requires the Court to fully implement the principles provided for by the Criminal Procedure Code, including principles of presumption of innocence This is the basis for the perception of litigants who really understand that any criminal act must be substantiated by the bodies conducting the proceedings, and the demonstration needs to be in conformity with the law This is to ensure that the case is not unfairly concluded and no criminals escape easily 4.1.4 Requirement of the Court holding a central location, and trial activity is the focus First, the special position of the Court as a judicial enforcement authority, derived from the Constitution It is only the Court that has jurisdiction in the name of the state to declare a person guilty and must take punishment Second, the court must really secure the rights of the defendant with the characteristics of civil human rights Third, stemming from the purpose of the proceedings, it is required that the Court perform well the function of judgment 4.1.5 Requirement of crime prevention The verdict not only has a direct impact on the offender, demonstrates the strictness of the law, but also has the effect of preventing other evils in the general public Therefore, it is required that the pronouncement of a judgment comes to the right person, with the right crime, in accordance with the law and this will have a common deterrent and preventive effect 4.2 SOLUTIONS TO IMPROVE THE QUALITY OF COURT OF THE FIRST INSTANCE OF CRIMINAL CASES AT PROVINCIAL PEOPLE'S COURTS From the actual situation of judicial activity and the analysis of subjective and objective factors that affect the quality of judicial activities as analyzed in Chapter 3, the researcher strongly recommends the following solutions done in a consistent manner 20 4.2.1 Prepare the necessary and sufficient conditions for training about the Criminal Procedure Code 2015 First, classify the participants of training Second, distribute and convey the provisions of the CPC related to trial limits Third, implement the provisions relating to jurisdiction Fourth, implement the principles of litigation in the trial 4.2.2 Continue to improve the provisions of the Criminal Procedure Code in 2015 on court of the first instance The CPC 2015 has addressed the limitations of the former versions, however, CPC 2015 still meets with a number of different opinions on some aspects of judicial activity that needed to be continuously improved Specifically, there are following points: Article 278 Application, change and cancellation of preventive measures and coercive measures Article 296 The presence of investigators and others Article 298 Concerning the trial limits Clause 1, Article 325, when procurators withdraw part of their prosecution decisions or conclude on less serious offenses, the Trial Panels shall continue hearing the cases Clause 1, Article 329, to arrest the accused after pronouncement of the judgment, except for cases specified in Clauses and of Article 328 of this Code 4.2.3 Raise the capacity for trial operation of persons conducting legal proceedings First, renew the method of selection, working term of the judge Second, enhance the judicial skills of the judges Third, there is a need to specialize judges Fourth, improve the quality of the trial of people's jurors Fifth, improve the quality of work for the Court’s clerk team 4.2.4 Improve the quality of litigation In order to improve the quality of litigation, the author proposes basic solutions related to litigation such as: First, for procurators 21 Procurators are authorized by the procuracy to exercise their right to prosecution, to supervise trial activities Under the new conditions, CPC 2015 that is in force now has provided litigation as a guiding principle Therefore, the procurator must constantly learn to improve legal levels, gain adequate valor to protect justice amd meet the requirements of judicial reform Second, for the lawyers involved in litigation Lawyers are subjects allowed by law to protect the legitimate rights and interests of defendants and other participants in the proceedings The role of the lawyer involved in the debate process is to clarify the content and circumstances of the case Therefore, in order to ensure the impartiality of the trial, the lawyer must fulfill all the functions and duties of the lawyer In order to carry out this task, lawyers need to constantly learn to improve their occupational ethics and professional ethics, thus meeting the requirements in the current conditions 4.2.5 Strengthen inspection, supervision and review of trial work Inspecting, supervising and speeding up the work is the task of agencies and organizations when performing their functions and tasks People's Courts also the body to exercise jurisdiction Therefore, for the Court to perform well its functions and duties, the inspection and monitoring, summing up the trial work is fundamental 4.2.6 Strengthen the use of case law in judicial activities Based on the advantages of case law, looking at the current conditions of our country, the application of the case law is necessary in order to improve the effectiveness of the trial 4.2.7 Complete the provisions of the Penal Code The Penal Code in 2015 is promulgated, but many laws were not detail and have not enough capacity to adjust social relations Therefore, in order to meet the requirements of ensuring security and social order in the immediate and long-term conditions, the Penal Code 2015 should be adjusted accordingly to current situation is a necessary requirement 4.2.8 Invest in equipment for the operation of the court Apart from the functions and tasks assigned to the court by the state, it is necessary to invest in court equipment in order to ensure continuous 22 operation In reality of the equipment of the People's Court, in order to ensure that the Court performs its function of trial, the State should pay attention to some specific issues as follows: First, the technical facilities that directly serve the court proceedings Second, more funds invested to renovate working offices with full functional rooms Third, renew apparels for the judge, people's jury, court clerk and lawyer 4.2.9 Build the legal culture while strengthen legal education in adjudication Build a lifestyle that respects the law, builds a culture of legal obedience when practicing trial First of all, judges, people's procurators, procurators, defendants and defense counsels must really respect the law The pronouncement of a judgment must be based on the foundation of evidence Once the judgment is pronounced to the right person with the right crime, it will be the basis for the citizen to strictly abide by the law of the state and also it is possible to prevent social evils for society CONCLUSION Judicial activity contributes significantly to the fight against crime and the protection of human rights Therefore, the author chose the topic "Court of the first instance of criminal cases of the provincial People's Courts in the Southeast of Vietnam" On the basis of the results obtained from the study of the topic, the author gives the following summarizing points: First, to get an overview of the judiciary bodies, the author has studied domestic and foreign works related to judicial activity Second, during the process of approaching judicial rights as well as the provisions of the Criminal Procedure Code 2003, the author has developed the concept, characteristics, role, meaning, contents and criteria of judicial review of activities in court of the first instance of provincial People's Courts 23 Third, in order to have a comprehensive assessment of our judicial system, the author has studied Vietnam’s judicial system with respect to the developmental stages of the country Fourth, the author studied the provisions of the Criminal Procedure Code 2003 regarding the court of the first instance of criminal cases On the basis of that regulation, the author analyzes and evaluates difficulties and obstacles when applying the provisions of the Criminal Procedure Code 2003 on trial activities Fifth, through the first-instance criminal convictions adjudicated by the provincial People's Courts in the Southeast provinces and also ones that were appealed or protested, the author examines and evaluates the quality of first instance criminal court judgments of provincial People's Courts On the basis of the criterion and evaluation of the quality of trial activities, the investigators shall conclude about remaining issues as follows: prolonged time for solving the case; jurisdiction and trial limits; inaccuracy of the issuance of procedural decisions relating to adjudication; concerns about the content of court of the first instance; and the actual situation of the first-instance criminal judgment, which were appealed or protested as well as results of the appellate trial Sixth, deriving from the situation of the issue that has been studied, the author has analyzed and assessed the causes of wrongful mistakes in the process of court of the first instance of criminal cases of provincial People's Courts Seventh, on the basis of the analyzing the causes of the wrongdoings in the trial, the authors propose some requirements and solution to improve the quality of the court of the first instance of criminal cases in the Southeast region of Vietnam 24 LIST OF SCIENTIFIC WORKS PUBLISHED RELATED TO THESIS Le Van Quyen, (2015), "Enhance the role of judicial juries in the conditions of judicial reform in our country today", Journal of law , (6), tr 7-8, tr 20 Le Van Quyen(2015), “Improve the quality of litigation in the criminaljudicial case judging from the judicial reform perspective” Electronic Journal of Democracy and Law Ministry of Justice dated 28/12/2015 Le Van Quyen (2015), “The role of lawyers in the criminal court proceedings in our country today”, Electronic Journal of Democracy and Law Le Van Quyen, “Enhancing the role of people's jurors in the process of trial, "Journal of Law and Democracy, 26 May 2012 25 ... mechanism in criminal proceedings in Vietnam through the principle of presumption of innocence and “mechanism for protection of human rights by the Courts in Vietnam” 1.1.2 Studies concerning quality... OF VIETNAM Provisions of the Procedure Code 2003 on the court of the first instance of criminal cases and implementation practices at the Provincial People's Court in the Southeast of Vietnam 11... the first instance of criminal cases of the Provincial People's Courts in the Southeast of Vietnam At the same time, from theoretical and practical research, the author also proposes solutions