Chức năng bào chữa trong tố tụng hình sự việt nam tt tiếng anh

Vietnam Academy of Social Sciences GRADUATE ACADEMY OF SOCIAL SCIENCESI O THỊ NGỌC CAO THI NGOC HA DEFENSE FUNCTION IN VIETNAM ‘S CRIMINAL PROCEDURE Major: Criminal Law and Criminal Procedure Code: 9.38.01.04 SUMMARY INFORMATION OF DOCTORAL THESIS Hanoi - 2019 The thesis was completed in GRADUATE ACADEMY OF SOCIAL SCIENCES Người hướng dẫn khoa học: PGS.TS Hoàng Thị Minh Sơn Reviewer 1: GS.TS Bùi Minh Thanh Reviewer 2: TS Trần Công Phàn Reviewer 3: TS Phạm Mạnh Hùng The thesis will be defended in front of the Academy's Thesis Evaluation Commitee Place: Doctoral thesis defense room - Meeting room House , Graduate Academy of Social Sciences Time: at ……… time, date …… month …… year ……… … The thesis can be found at: - National Library - Library of Graduate Academy of Social Sciences OPENING The urgency of the thesis From the perspective of legal provisions, the study of the function of defense in criminal proceedings becomes urgent in the context that the Criminal Procedure Code2015 is born and is about to take effect in reality From a practical perspective, the implementation of the defense functions, the function of accusation and the function of trial has not been clearly differentiated, there is still overlap, the entities performing the above functions has not done all its functions Besides, although the professional qualifications of defense counsels are increasingly enhanced, the participation of defense counsels is increasing, but the quality of case resolution has not met the requirements which were set out Causes of this situation include both subjective reasons from defense counsels, and objective causes from legal proceeding agencies and legal provisions In some cases, defense counsels have not been properly facilitated by the agencies conducting legal proceedings to fulfill their functions and tasks Moreover, the perception of legal defense agencies about the role of defense counsels is not really right The position of defense counsels must be considered a party to the proceedings, equal with the Procuracy Together with the procedure-conducting agencies, the defense counsels' activities contribute to finding the objective truths of the cases This awareness must be thoroughly understood in the judiciary cadres, especially the persons competent to conduct legal proceedings and all citizens The content of defense has been interested by many authors in different aspects, expressed through theses, master theses, articles in specialized journals, topical articles in scientific research topics That is the contents related to the right to defense, the assurance of the exercise of the right to defense, defense counsels, the role of defense counsels, the function of the criminal procedure, the judicial function of the criminal procedure, the accusition function of criminal proceedings However, at the doctoral level, there has not been any research on an extensive, comprehensive function of defense Therefore, the study of the topic «Defense function in Vietnam criminal procedure» is urgent and the author has chosen this topic to study in the perspective of a doctoral thesis in law Research purposes and missions Based on the research of theoretical issues, the current status of the law and the practice of defense function in the Criminal Procedure, the dissertation makes recommendations to improve the law and solutions to ensure the function of defense in criminal proceedings Research subject and scope 3.1 Research subjects The research subjects of the thesis are theoretical issues such as concepts, characteristics, meaningful purposes, contents, and bases of defense function in criminal proceedings ; legal provisions directly related to defense function in Vietnam's criminal procedure In addition, the object of the topic is the practice of performing the defense function in Vietnam's criminal procedure, practical evaluation to analyze and clarify problems and shortcomings of the current law through the data, typical examples in judicial practice to provide some solutions to perfect the provisions of the law and organize the implementation of defense functions in Vietnam's criminal procedure 3.2 Research scope In term of the content : The thesis focuses on studying the theoretical issues and provisions of Vietnam's criminal procedure law on the function of defense in the field of criminal procedure, the reality and the solutions to ensure the effective implementation of defense function in the Criminal Procedure of Vietnam In term of time : The regulation of the law on defense function are studied in each specific historical period such as the period before the Criminal Procedure (CrP) 1988 was born ; the period of the CrPC 1988, the CrP 2005 and the CrP 2015 take effect In terms of space : The thesis studies practical issues through researching, summarizing defense counsels’ involvement cases nationwide and analyzing practical implementation of defense functions in the Criminal Procedure which are based on reports by department of Vietnam Law Association, Supreme People's Procuracy, Supreme People's Court, questionnaire survey of some lawyers in Hanoi and local Methodology and research methods 4.1 Methodology and approach The thesis is studied based on the methodology of Marxism2 Leninism and Ho Chi Minh's thought on the State and the law In addition, the thesis is studied based on the methodology of the Criminal Procedure Law combining multi-disciplinary and interdisciplinary approach Approach : The thesis uses the approach of the major Criminal Procedure Law, Criminal Law, General Theory of State and Law, Criminal Investigation Science, Criminology and Approach history, interdisciplinary and interdisciplinary approach ; approach in terms of comparative law 4.2 Research Methods The thesis uses general research methods of social sciences and specific research methods of law to study the subject On the basis of dialectical materialism and historical materialism of Marxism- Lenin, Ho Chi Minh thought, the views of our Party and State on the struggle to prevent, fight against criminals and other law violations, the thesis uses a combination of research methods, namely : systematic methods, statistical methods, analysis methods, sociological investigation methods, historical, comparative, logical, synthetic methods New contributions of science of the thesis The thesis is a comprehensive research from the perspective of theory and practice of defense function in criminal procedure The results of the thesis have made new scientific contributions as follows : - Firstly : The thesis clarifies and supplements a number of important theoretical issues of the function of defense in the administrative procedure and at the same time, analyzes to explain more deeply the provisions expressing the defense function in the administrative procedure through each specific historical period to see the legislative history of the function of defense in the Vietnam CrPC - Second : The thesis researches the practical implementation of defense functions in the Vietnam CrPC for the past 10 years, based on a combination of qualitative and quantitative research to create reliability for conclusions - Third : The thesis has proposed feasible solutions to ensure effective implementation of defense functions in practice Scientific and practical significance of the thesis The research results of the thesis supplement and clarify the theoretical issues on the function of defense in criminal procedure The thesis has great practical significance and is a meaningful source for individuals, agencies and organizations to refer to and research in the process of commenting and finalizing the provisions of law The structure of the thesis In addition to the introduction, conclusion and list of references, the thesis is divided into four chapters : Chapter : Overview of research situation Chapter : Theoretical issues on defense function in Vietnam criminal procedure Chapter : The law shows the function of defense in Vietnam's criminal procedure and its practical implementation Chapter : Viewpoints and solutions to ensure the performance of defense functions in Vietnam's criminal procedure Chapter OVERVIEW OF THE RESEARCH SITUATION 1.1 Abroad research situation In many countries around the world, defense issues are studied from many aspects, such as the right to defense, defense counsels, the participation of defense counsels That is the scientific foundation for the formulation and implementation of legal provisions on defense functions Studying the basic theoretical issues of the criminal procedure model is very necessary for graduate students, because the criminal procedure model is the way to perform the functions of criminal procedure These include: "Major legal systems in world today" by Rene David, John E C Breierly, The Free Press in 1978; The book "Criminal Procedure Models in the World" by Jean-Phillipe Rivaud in 2000 The book "Comparative Criminal Justice" by Phillip.L.Reichel (Vietnamese translation of the Institute legal science research in 1999; article "Rethinking the functions of criminal Proceduce" (roughly translated: discussing the functions of criminal proceedings) in 2010 by Peter A Renella The article about defense function can be mentioned as: article "Defense function" (roughly translated: function of defense) of the American Law Association who outlined the common standards of the defense and the functions of defense lawyers Article "Functions of the police, prosecutor, court workers, defense counsel, Judge in aiding Juvenile Justice" (roughly translated: Functions of police, prosecutors, civil servants of courts, defense lawyers, judges) in 2009, author Donald J Newman, Ph.D (Lecturer in law University Wiseunsin, Modison) affirmed: The defense functions are twice as important in the investigation stage of the criminal prodecure process compared to other proceedings because the defense function during the investigation phase with the aim to assist the suspect in gathering evidence and to protect him from the violation of his rights in the hands of the legal defenders (people conducting legal proceedings) Some studies have mentioned the contents of human rights in general and the right to defense in particular such as: The article " the guarantees for accused peorsons under Article of the European convention on Human Righs "( roughly translated: ensuring the rights of the accused under Article of the European Convention on Human Rights) by Stephanos stavros (Sweet and maxwell, UK, 1993), which focuses on analyzing the right to self-defense and the accused's right to ask others to defend him The book "Criminal process and human rights" by the authors is the professors and associate professors of the Law University in Melbourne, Australia, 2001 about human rights in general and the defense rights of accused persons in particular, emphasizing the right to access defense counsels, the right to contact defense counsels, and the right to free defenders for the group of vulnerable people such as minors or people with disabilities… 1.2 Research situation in the country 1.2.1 Group of works related to the theory of defense function in criminal procedure In legal sciences, issues related to the theoretical basis of the thesis have quite a lot of published works and articles at different levels * First of all, the group of scientific works on theoretical research on the function of the criminal procedre including the function of defense These include researches such as the "Vietnam CrPC Model", which was presided over by Supreme People’s Procuracy in the Project on Vietnam CrPC Model (2010); The article "The functions of criminal procedure and issues to improve the model of Criminal Procedure in Vietnam today" by Assoc Prof Dr Nguyen Thai Phuc; Presentation of the author Dinh Thi Mai at the scientific conference "The functions of criminal proceedings in the current context of judicial reform in Vietnam" (2015) * Studies of human rights in relation to the rights of defense of accused persons: * Researches on the concept and characteristics of criminal procedure functions: The article "Discussing the functions of accusation, defense and adjudication in criminal procedures" in 2003 by Hoang Thi Son ; Presentation report of Assoc.Prof Dr Hoang Thi Minh Son at the Scientific Conference "The functions of criminal proceedings in the context of judicial reform in Vietnam today" (2015) * The research work on litigation is also a useful resource related to the theoretical basis of the thesis It is possible to mention the doctoral dissertation "Principles of litigation in Vietnam CrPC - theoretical and practical issues" by Nguyen Van Hien, 2010 1.2.2 Group of works directly related to the thesis content * The group of research works on the right to defense: * Group of works related to the actual situation and solutions to perfect the defense function 1.3 Assessment the research situation 1.3.1 Theoretical issues on defense function in criminal procedure In the above-mentioned scientific studies, concepts, roles and contents of defense function have been raised However : - Basing on the function of defense function : there has not been any comprehensive research on this content, very few researches on the origin and basis of the appearance of defense function in the element of criminal procedure Regarding the concept of pleading function : there are still many different views and opinions - Regarding the role of the function of defense : just giving a general outline, there is no explanation or analysis ; No in-depth research on the role of defense functions The research works have almost no new awareness about the function of defense - one of the three basic functions of the CrPC - Regarding the content of the defense function : although there are still some disagreements about the content of the defense function, but most have confirmed that the content of the defense function is the activities of the owner’s excuse - Regarding the characteristics of the defense function : there has not been any work that has generalized the characteristics of the defense function - Regarding the relationship between the Criminal Procedure functions : Most of the studies have highlighted the relationship between the Criminal Procedure functions, which is the relationship between the accused function, the defense function and judicial functions These functions are closely related, closely intertwined, coexist and develop However, the analysis of the relationship of defense functions with the other two functions in the administrative procedure has not been deeply studied, specifically, only at the level of generalization and brief analysis 1.3.2 Situation of defense function in Vietnam's criminal procedure - On the current situation of the provisions of the law on defense functions: A number of research studies have outlined the birth of defense functions and defense functions shown in certain historical periods In particular, the defense function shown in the CrPC 2015 has not been written and researched on this issue Regarding the provisions on defense functions abroad, a number of research works in foreign countries and in the country have outlined general rights of defense, defense counsels in some countries such as Japan, France, Germany, However, there has not been any in-depth study of the function of defense in certain countries - Regarding the current situation of performing the defense functions: All studies have highlighted the actual situation of exercising the right to defense and the defense activities of defense counsels in the administrative procedures as in the investigation period , the stage of adjudication at the time of applying the CrPC, 2003 Most of them point out the real situation of exercising the right to defense, such as: The reality of the granting of defense certificates; Situation in the collection of documents, objects and details of defense counsels; Situation in the lawyers' contact with accused persons, suspects and defendants; The situation of lawyers at the firstinstance trial, especially in the debate, in response to the Procuracy representative Most of the works are written about the implementation status in terms of the right to defense Very few works have been written on the current situation of defense counsels of defense counsels, especially the situation of other defense counsels such as people's defense counsels, legal representatives of suspects and defendants In particular, no work has been written on the status of performing the defense functions of defense counsels and accused persons according to the CrPC 2015 1.3.3 Solutions to perfect the law and ensure the performance of defense functions in Vietnam's criminal procedure The research works have raised a number of measures to perfect the regulations on the right to defense, to raise the efficiency of defense activities of defense counsels For example: Supplementing a number of rights and mechanisms to ensure that defense counsels perform well their legal rights; Expanding a number of defense counsels' powers such as the right to collect evidence The defense counsel and the procedureconducting persons must respect the pleading results and the responsibility in ensuring the performance of the defense counsels' rights and handling measures in case of violation; Amendments and supplements to regulations to create favorable conditions for defense counsels to quickly participate in the proceedings and approach the process of resolving the case in the direction of simplifying procedures for granting defense pleadings and procedures to participate in defense However, the evaluation of the provisions of the CrPC 2015 on the function of defense, the unreasonable contents of the defense function are codified in the CrPC 2015 there is no scientific study any research on this issue Since then, the introduction of measures to ensure the implementation of the defense function and perfect the provisions of the law on defense function in the CrPC 2015 have not been comprehensively studied 1.3.4 Issues needed for further research Firstly, the thesis needs to continue studying some theoretical issues such as: the concept of defense function has been used, mentioned by some domestic researchers but has not been unified and not studied yet treatise to give concept and analyze inner meaning of this concept; There are no scientific studies on the function of defense functions in the CrPC, and the role of the defense functions is mentioned through the role of the Criminal Procedure function in general, so there has been no generalization and further analysis of this content A number of theoretical issues have been mentioned by the research work but have not yet had in-depth analysis or explanation such as : The form of performing the defense function in the administrative procedure; The existence of defense functions in the criminal Regarding the concept of the function of defense in the Criminal Procedure, there is still no agreement and currently there are many different opinions It can be seen that criminal procedure is a combination of activities of different groups of subjects such as investigating bodies, procuracies, courts and defense counsels When these subjects participate in the LRC, they are influenced by different tasks and interests, so their orientation of activities is also different The administrative procedures of these subjects are bound and linked together by the common purpose of the administrative procedures and are consistent with each other The defense function is one of the basic functions of the Criminal Procedure, therefore, derived from the approach of Criminal Procedure as analyzed above, the author considers that "the function of defense is the operational aspects the great and fundamental orientation of criminal proceedings is recognized by law and ensures the accused party's ability to present evidence and arguments against the charge; contribute to protecting justice, protecting the legitimate rights and interests of accused persons and commercial legal persons, and help the case be resolved objectively, comprehensively and fully” 2.1.2 Features of the defense function in criminal proceedings - Subjects performing the function of defense in criminal procedures: Subjects performing the function of defense also have certain characteristics, with the purpose of protecting the legitimate rights and interests of the accused Different from the subjects of the right to defense, the subjects exercising the function of defense are: Persons held in emergency cases, accused persons and defense counsels - Scope of the defense function in criminal procedure: The defense function arises when a person or commercial entity commits an crime The end of the defense function is determined when the accusation are no longer available In some special cases, when the grounds of accusation no longer exist, the competent subject who issues a decision to suspend the case will have the function of the defense ceased earlier Or, in cases where the legally effective judgment is reviewed and re-settled according to appellate procedure, cassation or reopening procedure, the 11 defense function will appear again until a legally effective judgment is issued new rule - Content of defense function in criminal procedure: The content of the defense function in criminal proceedings is that the defense party uses the powers permitted by law by presenting evidence and arguments in order to combat or abolish the charge; mitigate criminal liability for the accused and protect the legitimate rights and interests of the accused In order to so, the defense must carry out the defense activities, through provisions on the rights of defense counsels in order to protect the accused The contents of the basic functions in the LRC show in the activities of the respective subjects prescribed by law The content of the defense function in the Criminal Procedure is reflected in the activities of the defense counsels and accused persons, which are provided for by the Criminal Procedure Law, in order to contribute to the protection of justice, the protection of legitimate rights and interests of accused The content of the pleading function is specific in the defense activities of the defending subject in order to protect the rights of the accused 2.2 The role and relationship of defense functions with other basic functions of criminal proceedings 2.2.1 The role of defense functions in criminal proceedings First: The defense function has a role in protecting justice, protecting human rights, the legitimate rights and interests of accused persons Secondly, the existence of the function of defense, the function of condemnation and the function of adjudication are the constituent and essential elements of the CrPC, the decision on the model of Criminal Procedure and being governed by the purpose and principles of the CrPC 2.2.2 The relationship between the defense function and the function of defense and the function of trial The CrPC consists of three basic functions, that is, the function of accusation, the function of defense and the function of adjudication Each function has a different position, role, nature, different implementing subjects, different specific activities and especially between them, they are independent of each other However, between these functions, there is a close relationship with each other, bound together, unified to arrive at the ultimate goal of finding the objective truth of the case Depending on the 12 specific stage of the proceedings, there are periods when one of the three basic functions is lacking, the CrP cannot function well Regardless of the procedural model (investigation, interrogation, litigation ), all three functions of accusation, defense and adjudication always appear and exist Each function exists, campaigning for the existence and movement of the other two functions [4, p.31] 2.3 Forms of performing the defense functions in criminal procedures and the defense functions in the criminal procedure models 2.3.1 Forms of performing the defense function in criminal proceedings The function of defense in the Criminal Procedure is performed through direct forms such as: Self-performance of defense function, performed by the accused person himself or indirectly, that is to perform the function of defense through help of defense counsels (thanks to defense counsels) and defense counsel as appointed To perform the defense functions themselves and ask the defense counsel to conduct them in parallel or only in a form depending on the views of the accused in each specific case The self-defense and thanks to defense counsels are complementary and supportive In cases where a person is accused of requesting defense counsels, they still have the right to defend themselves in order to protect their own interests 2.3.2 The function of defense in criminal procedure models 2.4 Factors affecting the performance of defense functions in criminal proceedings Legal factor: Human factors and awareness: Economic, political and social factors: Chapter REGULATION OF THE LAW ON DEFENSE FUNCTIONS IN VIETNAM'S CRIMINAL PROCEDURE AND PRACTICAL IMPLEMENTATION 3.1 Regulation of law on the function of defense in criminal proceedings 3.1.1 History of formation and development of defense function in Vietnam's criminal procedure 13 In the early stages, the recognition and adjustment of legislation on the function of defense in the administrative procedures are very weak The content of pleading is generally prescribed in legal documents such as Laws, Decrees, etc However, the legal provisions on defense are few and not specific, only general provisions on the lawyer has the right to defend and the defendant has the right to defend himself 3.1.1.1 Regulation on showing the function of defense in Vietnam's criminal procedure in the period of 1945-1987 3.1.1.2 Regulation on showing the function of defense in Vietnam's criminal procedure in the period of 1988-2003 3.1.1.3 Regulation on showing the function of defense in the Criminal Procedure Code 2003 3.1.1.4 The regulation demonstrates the defense function in the Criminal Procedure Code 2015 The 2015 Criminal Procedure Code added a new chapter (chapter V) that provides content related to defense to ensure defense counsel's quick access to the process of resolving a case Concretizing the provisions of the 2013 Constitution and in order to create favorable conditions for the accused to exercise the right to defense, the CrPC has provided some new contents in 2015 a Provisions on showing the function of defense in the stages of prosecution, investigation and prosecution * Time of participating in NBC's proceedings * NBC's registered defense activities In order to participate in the proceedings in criminal cases, to protect the legitimate rights and interests of accused, accused and defendants, NBC must register to defend in every case This is a new provision of the CrPC of 2015, replacing the old one which is the procedure for granting a defense counsel certificate The CrPC 2015 requires that, when registering a defense, defense counsels must produce required documents such as a lawyer card, lawyer request letter, etc At the request of the accused, their representatives and relatives of the accused for inviting defense counsels, the investigating bodies, procuracies and courts shall have to ensure that they have their right to offer a defense * Defense activities of defense counsels: 14 - Activities of meeting with accused persons of defense counsels: According to Article 80 of the CrPC, defense counsel is allowed to meet and ask arrestees, detainees, suspects and defendants who are being held in detention at any stage of the proceedings and unlimited the number of meetings defense counsel is allowed to actively discuss matters related to its clients in the custody conditions of detention facilities without being obliged to be present to the procedure conductors In order to meet arrestees, detainees, suspects, defendants in detention, defense counsel must present a written notice of the defense counsels of the procedure-conducting competent agency, the lawyer card or the assistance card legal or identity card or citizen ID card After finishing the interrogation, defense counsel has the right to ask its clients This questioning is completely active from defense counsel defense counsel can ask questions related to the client and the behavior the client has committed in the case - Regulation on changing or canceling preventive and coercive measures: When finding that the accused or defendants meet all conditions for changing or canceling preventive or coercive measures, defense counsel will propose to the competent authority to propose changes or cancellation of measures being applied to the accused and defendants For example, it is recommended to change detention prevention measures to other less strict measures such as banning from residence, bail, deposit to ensure - Regulation on requesting summons of witnesses, other participants in legal proceedings and competent procedural persons: When necessary to clarify matters related to accused persons, defense counsels may request convene witnesses, other participants in legal proceedings and competent procedural persons defense counsel only proposed to summon the above subjects when their testimony was in favor of the accused and defendants and in favor of the defense and defense of defense counsels - Activities of collecting, examining and evaluating evidences and proposing competent procedural authorities to collect evidences: When performing the task of protecting the legitimate rights and interests of the accused and defendants; defense counsel may discover new documents, new evidence that has not been discovered by the proceeding agency In this case, defense counsel has the right to collect, inspect, evaluate evidence 15 or request competent procedural authorities to collect evidences, when such documents and objects are beneficial to the accused and not worsening the suspect's condition For example, it is evidence proving the innocence of the accused or extenuating circumstances of the criminal liability of the accused, which the procedure-conducting agency has not shown in the case file - Read, take notes, copy documents in case files: * Self-defense activities of accused persons: Persons accused of carrying out self-defense and protection activities through the powers provided for in the CrPC The CrPC 2015 has been revised compared to the 2003 CrPC, not only providing more specific and clear provisions but also extending the rights of accused persons, helping to ensure fairness in the enforcement of criminal law b Regulations that demonstrate the defense function during the trial period Compared to the CrPC, 2003, the CrPC 2015 recognizes the equal rights of the NBC with participants in litigation at the trial in more detail The Court is responsible for creating conditions for procurators, defendants, NBC, and other participants in legal proceedings to fully exercise their rights and obligations, and to democratically and fairly conduct disputes before the Court According to the provisions of the CrPC 2015, the authority and position of NBC in litigation at the trial is enhanced, NBC has the right to equal with the Procuracy representative in presenting evidence, documents and requests The trial panel must listen and acknowledge all opinions of procurators, defendants, defense counsels and participants in oral arguments in order to assess objectively and comprehensively the truth of the case In case of not accepting the opinions of the participants in the trial, the trial panels must clearly state the reasons and be inscribed in the judgments " 3.1.2 Functions of defense in criminal procedure law of some countries in the world and experience for Vietnam Functions on the defense of criminal procedure laws of the Federal Republic of Germany Functions to defend in the criminal procedure law of the United States The defense function in China's criminal procedure law 16 Experience with Vietnam 3.2 Practical performance of defense functions in criminal proceedings 3.2.1 Situation of accused persons and defense counsels participating in defense cases in criminal cases In fact, for various reasons, accused people often perform their own right to defend, not ask defense counsel to defend themselves Table 3.1: Number of cases involving defense counsels at the first instance trial Year 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 The first months of 2019 Total number of firstinstance trial cases 60.433 51.705 57.009 65.974 67.153 66.676 59.866 61.918 57.872 58.587 26.846 Number of cases involving defense counsels Ratio % Number of cases without defense counsels Ratio % 6.303 4.783 4.480 5.195 5.001 4.554 3.808 4.173 4.050 5.611 2.550 10.4% 9,2% 7,8% 7,8% 7,4% 6,8% 6,3% 6,7% 7.0% 9,5% 9,4% 54.130 46.922 52.529 60.779 62.152 62.122 56.058 57.745 53.822 52.976 24.296 89,6% 90,8% 92,2% 92,2% 92,6% 93,2% 93,7% 93,3% 93% 90,5% 90,6% (Source: Supreme People's Court) *The situation of lawyers who are invited and appointed to participate in the defense of criminal cases In recent years, the number of lawyers invited by clients to defend against the number of appointed lawyers has increased, accounting for a higher proportion than the number of defense lawyers appointed This shows that the need for lawyers to defend the accused is increasing, confirming the role and legal status of defense counsel in general and 17 lawyers in particular in criminal proceedings The increasing charge of inviting defense lawyers proves that the quality of defense counsel 's defense is increasing, creating trust for the people, society in general and the accused in particular The number of defense counsel in general and lawyers nationwide in particular is increasing day by day, meeting the increasing demand for lawyers from clients Most of defense counsel participated in the case with a high sense of responsibility before the customer and before the law (including the cases required by the procedure proceeding agency) defense counsel 's professional activities such as researching case files, meeting suspects, defendants, gathering additional evidence, preparing arguments for defense, protection, planning for questioning, participating in litigation at sessions The court has been carefully and carefully prepared by defense counsel Reality shows that defense counsel 's participation in legal proceedings not only better guarantees the right of defense of defendants, defendants and other involved parties, but also helps the procedureconducting agencies to discover and correct correcting shortcomings, clarifying objective truths, trying the right people, the right crimes, the law, and protecting socialist legislation In particular, with the participation of defense counsel, most of the cases have proved the criminal relief mitigation grounds for the accused, even in some cases, proved the crime of the defendant in the case judgment * Situation of other defense counsels participating in defense in criminal cases - People's advocates who participate in defense in criminal cases: - Representatives of persons accused of participating in defense in criminal cases: - Legal aid professionals who participate in defense in criminal cases: 3.2.2 Practical implementation of the defense function of defense counsels during the stage of prosecution, investigation and prosecution 3.2.3 Practical implementation of of defense functions of defense counsels during the trial period 3.2 Practical implementation of defense function of accused persons 18 In fact, the person accused of performing the defense function has encountered certain difficulties These difficulties come from the information agencies, such as not allowing the accused to present all opinions, testimonies, interrogations at night, violations of the agencies at different levels, affecting the the accused's rights At the trial, the accused still faces a number of difficulties such as: making a request but not being accepted, difficult to participate in the debate due to not having access to the case file, getting decided to bring the case to trial slowly so there was no time to study for self-defense Violations of the People's Court in securing the right to defend by asking questionnaire for procuracy officials include: certificate of defense counsels later than the prescribed (42.3%); not to nominate defense counsel in compulsory cases (24.9%), limited time, scope of presentation and debate (22.2%); not postpone the trial in the absence of NBC as indicated (7.4%), refuse to grant certificate of defense counsel without cause (7.4%) [68] However, the above difficulties also stemmed mainly from the accused Because of their limited legal capacity and knowledge, they are not aware of their legal rights and interests to protect themselves Even the accused didn't even understand the legal term or content of the indictment “At the trial, defendants without defense lawyers are often not involved in the debate, not knowing how to respond to the Procuracy representative about the crime, the penalty frame, and the sentence that procuracyproposed In some cases, having argument with procuracy is just normal reasoning, there is no legal factor in debate ”[68] 3.2.5 The cause of the limitations in the practice of defense functions in criminal proceedings 3.2.5.1 Inadequacies in the law on defense functions 3.2.5.2 Other causes From the procedure-conducting agency; - From the defense counsels; From the accused: - From the perceptions of society: Chapter VIEWPOINTS AND SOLUTIONS TO ENSURE THE IMPLEMENTATION OF DEFENSE FUNCTION IN THE CRIMINAL PROCEDURE OF VIETNAM 19 4.1 Perspective to improve the law and ensure the implementation of defense functions in Vietnam's criminal procedure - Thoroughly grasp the Party and State's views on raising the quality of litigation and intensifying disputes at the trial: - Thoroughly grasp the Party and State's views on raising the role of defense counsels and protecting the legitimate rights and interests of accused persons: - Orientations for perfecting the law and ensuring the performance of defense functions in criminal proceedings: + To improve the effectiveness of the defense function, create a new position of defense counsel and ensure the rights of the accused, the completion of the law is indispensable Completing the provisions of the law must ensure the common criteria in the implementation of the criminal policy and the purpose of the Criminal Procedure, and at the same time must have its own criteria to ensure the performance of defense functions in practice The CrPC 2015 has shown an important step forward compared to the 2003 CrPC in improving the law, including the provisions related to the defense function, ensuring the rights of the defense counsel as well as the accused + To complete the regulation of the law on the function of defense in criminal proceedings, one of the important contents is to innovate in cognitive thoughts The renewal of awareness on the function of criminal procedures in general and the defense function in the centers of the particular life should need to appreciate the position, role and significance of the administrative procedures as well as the overall consideration of the constituent elements of CrP The purpose of any CrP system must be done at the same time two tasks: to determine the truth of the case, to ensure justice is enforced, but how to be on the road In seeking that truth and justice, the rights of all involved parties must be respected and protected [27, p.113] The purpose of the defense function is to protect not only the legitimate rights and interests of the accused but also the justice, the human rights, the legal and social justice + The defense function is a basic function of the CrP so it needs to be built in a synchronous manner with the functions of accusations and judicial functions The improvement of the law on the function of defense 20 in the administrative procedures must be unified and must not be in conflict with the other basic functions of the center of administrative procedures because these are the basic functions of the center of communication with each other + Improve the model of CrP 4.2 Solutions to ensure the implementation of defense functions in Vietnam's criminal procedure 4.2.1 Perfecting the regulation of law related to the defense function in criminal proceedings First: Regarding defense counsel's rights and ensuring the performance of defense functions Proposing to supplement and amend some rights of defense counsel: - Supplementing the right to receive procedural decisions related to the person to whom he / she defends (decision to return additional investigation files, indictments, decisions to dismiss cases or decisions to suspend cases the accused, the investigation conclusion) as well as documents on changes in criminal procedure - Edit The right to proactively propose witnesses as well as summon other participants in the proceedings to the trial -Recommend supplementary regulations with no limit on the time for meeting of defense counsels - The provision that defense counsels are involved in a number of specific investigative activities has not been facilitated in the course of participating in the proceedings Therefore, the chapter on investigative activities should specify the rights and obligations of NBC when participating in investigative activities and regulations to ensure that defense counsels can participate in accordance with the law laws that not cause difficulties from the CrP agency, defense counsels' signatures into the investigation records In this way, the rights of defense counsels will have a specific mechanism for implementation, avoiding formality when performing defense function Specifically: - Please specify clearly and specifically the right to copy files and documents of the case in the proceedings of the defense counsel because although the CrP provides for this, the practice of the procedure There are 21 many reasons to restrict defense counsel from exercising this right, such as not allowing defense counsel to use cameras to copy files and documents, or making unreasonable requests such as requiring defense counsel to list documents to be copied for consideration decision - The defense counsel provision has the right to collect evidences, documents and objects related to defense from agencies, organizations and individuals that are difficult to be implemented in reality as the CrP of 2003 and the CrP 2015 not provide for Obligation to provide evidence of agencies and organizations when requested Therefore, it is recommended that the provisions of Article 81 of the CrP are supplemented as follows: “Organizations and individuals that store documents, objects and facts related to the defense are responsible for providing the defense counsel when request" At the same time, it is recommended to supplement regulations on coordination and support of agencies and organizations in providing documents to defense counsel and sanctions for interventions, preventing defense counsel from exercising the right to collection cross evidence Witnesses, organizations and related individuals are required to be responsible to coordinate with defense counsel; defense counsel may go to the detention facility to investigate, collect evidence from the detainee, the accused, the defendant, or may ask them to go to Court to testify The detention agency must ensure that the above people receive requests for investigation, gather evidence and testify from defense counsel - The Criminal Procedure Code in 2015 is still not consistent with regulations when defense counsel meets suspects and defendants in detention camps to meet privately or in the presence of prison supervisor In fact, during the investigation phase, in some localities when NBC met suspects, defendants in detention camps, they always had to be approved by investigators or forced to have enumerator accompanying them In order to create conditions for defense counsels to work effectively, we believe that the provisions of Article 80 of the CrPC should be supplemented as follows: 1) "The defense counsels have the right to personally meet the accused in custody or temporary houses detention without the presence of a person conducting legal proceedings or a prison supervisor "; 2)" Information exchanged between NBC and accused person needs to be confidential and not controlled on the content of the exchange " 22 4.2.2 Solutions to organize the implementation of the law on the function of defense in criminal proceedings CONCLUSION Researching on the dissertation topic "Defense function in Criminal Procedure of Vietnam", in wide and complicated research conditions, the author of the thesis has achieved some modest results This is one of the high theoretical and practical topics Although the issue of defense has been studied by many authors from the perspective of the right to defense, the principle of defense, but from the perspective of defense function, very few studies have mentioned it The author of the thesis clarified the basic theoretical issues on the function of defense in Vietnam's criminal procedure such as the concept, characteristics and role of defense function; form of performing the function of defense; conditions to ensure the performance of defense functions in criminal proceedings Thereby affirming that the defense function is one of the three basic functions of criminal procedure, which are the operational aspects in criminal procedure the recognition and assurance of the accused by the accused of the ability to present evidence and arguments against the charge, to protect the legitimate rights and interests of the accused, the commercial entity committing the crime, contribute to resolving the case objectively, comprehensively and fully The provisions of Vietnam's criminal law which show the function of defense in criminal proceedings are also clarified by the author by analyzing the provisions on the rights of defense counsels, the rights of accused persons as well as their obligations in the stage of prosecution, investigation, prosecution, and trial of criminal cases Over the years, defense counsels have performed quite well their defense functions to protect the rights of their clients The participation of defense counsels does not hinder the proceedings of procedure-conducting persons; on the contrary, the activities of involved parties promote and complement each other At the same time, the defense of the defendant and the accused help to ensure the legitimate rights and interests of the accused, limit the law violations of the CrP agency and guarantee the prosecution activities The proceedings took place objectively, comprehensively and in accordance with the law However, besides the positive points, the practical 23 implementation of the defense functions of defense counsels and accused persons faces many difficulties, the causes stemming from the provisions of law and from the defense counsels, accused persons, persons conducting legal proceedings From the practice of performing the defense function in the Criminal Procedure of Vietnam, the author offers a view to perfecting the law and solutions to ensure the implementation of the defense function in the Criminal Procedure, including solutions on legal improvement solutions on organizational conditions, about people, about economy, politics and society 24 LIST OF RESEARCH WORKS BY AUTHOR "Some theoretical issues on the function of defense in Vietnam's criminal procedure", legal profession magazine No 01/2018 "Criminal defense function of some countries in the world and experience for Vietnam", legal journal No 03/2018 "Functions of defense in criminal procedure of some countries in the world and experience for Vietnam", legal profession magazine No 02/2019 ... related to defense function in Vietnam's criminal procedure In addition, the object of the topic is the practice of performing the defense function in Vietnam's criminal procedure, practical... defense functions in Vietnam's criminal procedure 3.2 Research scope In term of the content : The thesis focuses on studying the theoretical issues and provisions of Vietnam's criminal procedure... history of the function of defense in the Vietnam CrPC - Second : The thesis researches the practical implementation of defense functions in the Vietnam CrPC for the past 10 years, based on a combination