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MINISTRY OF EDUCATION AND TRAINING MINISTRY OF JUSTICE HANOI LAW UNIVERSITY HA LE THUY JUDICIAL MEASURES IN VIETNAMESE CRIMINAL LAW THEORETICAL AND PRACTICAL ISSUES Major: Criminal law and criminal procedure Code : 9380104 SUMMARY OF DOCTORAL THESIS IN LAW HA NOI – 2020 THE THESIS WAS COMPLETED AT: HANOI LAW UNIVERSITY Scientific Supervisor: Dr Pham Manh Hung Dr Hoang Van Hung Reviewer 1: Dr Nguyen Tri Tue Reviewer 2: Assoc Prof Dr Nguyen Ngoc Chi Reviewer 3: Dr Nguyen Van Hien The thesis will be defended at the marking commite of Hanoi Law University at the time…hour…month…year 2020 The thesis can be found at: 1) National Library 2) Library of Hanoi Law University LIST OF ANNOUNCED RESEARCH WORKS RELATED TO THE THESIS’ THEME Ha Le Thuy (2015), Some issues on judicial methods in Vietnam's criminal law and solutions for complementing, Journal of Procuratorate Studies, (1), pp.56-63 Ha Le Thuy (2015), As to application of judicial measures in place of penalization towards juvenile delinquency pursuant to the current criminal law in Vietnam, Journal of Human Resources Development, (4), p 63-68 Ha Le Thuy (2016), Judicial measures in the Criminal Law of some countries in the world, The People’s Court Journal (4), pp.32-36 Ha Le Thuy (2017), Penalties and judicial measures application to offenders in Vietnam Penal Code and related laws in number of countries, Journal of Legislative Studies (14), p.60-64, 34 Ha Le Thuy (2020), Evaluating provisions of the Criminal Code 2015 on supervisory, educational measures applied to offender aged under 18 in comparison with foreign law, The People’s Court Journal, (11), p.1-8, 48 A INTRODUCTION The urgency of the topic Since the introduction of the first Criminal Code, legal institutions have been regulated and gradually ameliorated through amendments, supplements and replacements However, it can be seen that, at present, the judiciary legal institution still has problems that exist theoretically and practically, requiring in-depth research and comprehensive to resolve these issues From the theoretical perspective, there are still different views when referring to the concept, characteristics, nature or role of judicial measures in criminal law Differences in criminal policies of each state, differences in economical, political, cultural and social characteristics of each state also lead to the recognition and regulation of judicial measures in criminal law of different states So far, we have not built a sufficient theoretical basis for judicial remedies, have not developed a legal concept of judicial measures, neither clarified the characteristics, roles and purposes of these measures From the perspective of criminal law, the provision of judicial measures in addition to the penalty system contributes to the diversification of criminal handling measures, supporting legal application agencies to have a choice diverse and flexible in thoroughly handling criminals but still ensuring the effectiveness of handling However, there are still plenty of legal aspects that need to be analyzed and clarified how to bring them closer to the applied practices, thereby promoting the indispensable role of judicial measures From a practical perspective, judicial measures are applied and contribute significantly to the fight against crime prevention In addition to the achieved results, some judicial measures, when applied in practice, have not brought into full play the effective role that lawmakers are eager to reach, even some are not yet applied in practical handling crimes Therefore, with the requirements set forth above, the continuous systematic research of the provisions of the judicial measure on judicial measures, the expression of these measures in the existing criminal code The application of these measures in practice has profound theoretical and practical implications That is also the reasons for us to choose the topic "JUDICIAL MEASURES IN VIETNAMESE CRIMINAL LAW - THEORETICAL AND PRACTICAL ISSUES" as our research thesis Research objectives and tasks of the thesis 2.1 The objective of the thesis The dissertation sets out the research objectives and theoretical clarifications on the concept, characteristics and basis of the provision of judicial measures; analyze and clarify the provisions of the penal code on judicial measures to evaluate the suitability between reasoning and statutory law Besides, the thesis also focuses on analysis and clarification of the reality of applying judicial measures to find out restrictions, inadequacies, and evaluate difficulties and obstacles On that basis, the dissertation also sets out the goal of perfecting the law on judicial measures, discovering remedial solutions and ameliorating efficiency to be the basis for flexible application and judicial measures in the practice of criminal handling 2.2 The task of the thesis - Research theoretical concepts, characteristics of judicial measures, analyze issues related to judicial measures to identify different concepts of judicial measures, from which construction get the scientific concept of judicial measure; - Studying legally on provisions of the Criminal Code on judicial measures, analyzing and clarifying the history of criminal legislative provisions on judicial measures, generalizing provisions of criminal law of some states in the world from which to compare, contrast and draw similarities and differences with Vietnam's criminal law; - Research, analyze and evaluate the current provisions of the criminal law and the reality of the application of judicial measures in Vietnam's criminal law, point out the problems and limitations in the process of applying judicial measures; - Research and find solutions to perfect the law, identify the factors that ensure the correct application of legal provisions on judicial measures to improve the effectiveness of the application of judicial measures in practice Research subject and research scope of the thesis 3.1 Research subjects The thesis studies the theoretical issues of judicial measures, with reference to the provisions of Vietnam's criminal law from 1945 to 2015 Criminal Code and the criminal law of a number of states in the world have regulations on judicial measures, studying the current provisions of Vietnam's criminal law and the practice of applying these measures in Vietnam, studying solutions to improve their effectiveness of the application of judicial measures in Vietnamese criminal law 3.2 Research scope The thesis studies the above-mentioned subjects based on the provisions of the current Criminal Code and legal documents prescribing judicial measures so far The thesis has studied judgments, decisions and procedures, figures whole nation and in some provinces and cities with large number of sentences in 10 years, from 2008 until 2017 The thesis doesn’t research the reality of applying judicial measures of legal entities committing crimes Because, at the time of the study, Criminal Code 2015 was officially in effect, so no cases have been handled and therefore no actual data Research methodology The thesis is based on the methodology of dialectical materialism and historical materialism, using a combination of methods such as combining theory with practice, analysis method, evaluation methods, general methods, comparative methods, statistical methods to clarify the problem Scientific and practical significance of the thesis In terms of scientific significance, this is the first research in a comprehensive and complete judicial measures study under the doctoral thesis level The work has theoretical value, contributes to the completion of the criminal law science theory, and creates systematic theoretical issues about the legal frameworks, resolving current controversial issues or has different views on the content of the provisions of judicial measures In terms of practical significance, the analysis and assessment of the current situation, the causes and limitations in the application of judicial measures have practical meaning in legislative activities and the law application activities of judicial agencies, judgment enforcement agencies At the same time, the introduction of recommendations and legislative measures to improve the effectiveness of the application of these measures have practical implications for the rehabilitation and education of criminal subjects and for fighting activities prevent and fight against criminals Structure of the thesis In addition to the introduction, an overview of the research topic, the conclusion and the list of references, the content includes: Chapter General issues and criminal laws of some countries on judicial measures Chapter Judicial measures in accordance with current Vietnamese criminal law and practical application Chapter Completing laws and solutions to improve the effectiveness of the application of judicial measures CHAPTER OVERVIEW RESEARCH TO THE THESIS The research in Vietnam related to the topic 1.1 The work of research on judicial measures in general At the level of monograph there are works: “Criminal responsibility and punishment” of the authors Nguyen Ngoc Hoa, Le Thi Son and Pham Thi Lien Chau; “Criminal liability and exemption from criminal liability” by the collective of authors Le Cam, Pham Manh Hung and Trinh Tien Viet; “Completing the provisions of the General Criminal Code in the face of new requirements of the country” by author Trinh Tien Viet; “Scientific commentary on new points of the Criminal Code 2015 (amended and supplemented in 2017)” by Nguyen Thi Phuong Hoa and Phan Anh Tuan; “Scientific awareness of the common part of Vietnamese criminal law after the third codification” by Le Van Cam, author of the research team At the doctoral dissertation level, there are works: “Criminal liability institution under Vietnam's Criminal Law” by Pham Manh Hung; “Criminal responsibility for environmental crimes” by Duong Thanh An; “Major penalties for not depriving people of Vietnam's criminal law” by Nguyen Minh Khue At the research level in the form of articles with works: “Judicial measures in the 1999 Penal Code and the completion of the Criminal Procedure Code on the order and procedures for applying measures” by Pham Hong Hai; “Penalties and judicial measures in Vietnamese criminal law” by Le Cam 1.2 The research works on each specific judicial measure - At the dissertation level, there are constructions: “Judicial measures applied to juvenile offenders” by Duong Thi To Nga; “Judicial measures to return properties, repair or compensate for damage according to the 1999 Penal Code” by Vu Thi Phuong At the level of the articles there are articles such as: “Regulations of the Criminal Code and the Criminal Procedure Code on return of property to owners and applicable practices” by Nguyen Van Truong; “Completing the provisions on criminal liability of criminal legal entities in the Criminal Code 2015” by Nguyen Thi Phuong Hoa In summary, the researches and assessments of the above works are also a valuable reference source for the writer of this thesis However, the aforementioned articles have not analyzed in detail judicial measures, have not studied foreign legislative experience with provisions on judicial measures applied for legal entities to gain experience in the process of applying new measures prescribed in Vietnam's criminal law Overseas research to the thesis 2.1 The work of research on judicial measures in general At the level of monograph, there are works “Penalty Science” by Bernard Bouloc; “General Criminal Law” by Jacques Leroy; “Criminal law curriculum, common part” by Helmut Fuchs At the thesis level, there is a doctoral thesis “Security measures: a comparative study of criminal law of France and Germany” by Jenny Herrmann has researched on judicial mesures known as security measures; at the reporting level, there are the following articles: “Safety measures in the new criminal code” by Constantin Sima; “Punishment and other criminal measures” by Maizer Chankseliani; “Remedy and safety measures in Swiss criminal law” by Nicolas Queloz Articles stated and analyzed criminal remedies other than penalties prescribed by the laws of the countries 2.2 The research works on each specific judicial measure At the thesis level there is a doctoral thesis “Approach to compare criminal liability of juveniles in French and Vietnamese criminal law” by Tran Van Dung, which mentions and compares educational measures for with juvenile offenders between the laws of France and Vietnam At the level of the article, there is an article: “Execution of juvenile offenders in Germany: between a system of protection and justice” by Frieder Dunkel; “Criminal liability of French companies” by Phillipe Xavier Bender; “Swiss Penalties and Measures” by the Federal Ministry of Justice and the police, Swiss Federal Office of Justice Thus, from the perspective of each specific defense plan, foreign works have also studied the copyrights applied to juvenile offenders or against legal entities who have committed crimes but have not yet studied them into a cabinet, specific content about the judicial mesures Evaluating the research situation related to the thesis 3.1 The research results are inherited and continue to develop by the thesis On the basis of presenting and analyzing domestic and foreign researches related to the judicial mesures from the perspective of overall research and specific research of each measure, the thesis has shown the results that the works go ahead to be able to inherit and develop 3.2 The issues related to the thesis have not been solved or continue research The thesis points out the contents that have not been mentioned or clarified by the previous works and need to continue researching and clarifying in this thesis: Theoretical issues about the legal frameworks in the law Criminal law; Legislative experience of some typical countries in the world providing for judicial measures; Practical application of judicial mesures specified in Vietnam's Criminal Law; Proposal of complete solutions regulations of criminal law and solutions to ameliorate the effectiveness of applying the judicial mesures in practice 3.3 Research hypotheses Hypothesis 1: The nature of judicial measures in relation to punishment and other criminal remedies should be re-perceived The judicial mesures is not only a means to support the punishment but also an independent role Hypothesis 2: In the current context, the system of judicial mesures does not fully meet the needs of the application, does not ensure the role and effectiveness of the defense measures in the system of criminal enforcement measures Hypothesis 3: The judicial mesures applied to criminal subjects are necessary and need to be more clearly and fully regulated in the criminal law Hypothesis 4: The current situation of Vietnam's criminal law and the situation of applying judicial mesures for offenders and commercial legal entities still has problems that require improvement to apply correct and to ameliorate the effectiveness of their application in practice 3.4 Research question The content of the thesis will focus on research to answer the following questions: Firstly, what are the concepts, characteristics, roles of judicial mesures? Basis of stipulating judicial mesures in criminal law? What is the relationship between judicial mesures and punishment? Secondly, how are judicial mesures regulated in the criminal law of some countries in the world? What are the similarities and differences from Vietnam's criminal law? Thirdly, how is the content of the legal framework regulated in the current criminal law? Fourthly, how you apply the practice of judicial mesures? What are the limitations, difficulties, obstacles and their causes? Fifthly, to overcome the causes of the limitations and difficulties in applying the judicial measures and improve the effectiveness of applying these measures in the future, what solutions are needed? 3.5 Approach of the thesis: access to rights, inter-disciplinary approach, historical approach and comparative approach Conclusion chapter overview An overview of the research works of senior scholars at home and abroad has given the author a comprehensive and insightful view on the issues related to the thesis Thereby, the author also found that, although there are many works at different angles research on judicial measures, but until now, there has not been any work at the advanced thesis level research in a comprehensive and holistic perspective from the criminal law perspective on judicial measures So, the thesis will continue to focus on clarifying the theoretical issues on judicial measures, the practice of applying judicial measures of Vietnam, thereby proposing synchronous and have practical value to contribute to improving the effectiveness of the application of judicial measures in Vietnam 10 1.2.3 The period of the promulgation of the Criminal Codes from 1985 to before 1999 Obviously, Vietnam's criminal law remarkably changed through the first promulgation of a complete Criminal Code With the provisions of this Code, judicial measures were more complete basing on the inheritance of the provisions on judicial measures mentioned in legal documents Lawmakers determined that judicial measures had an indispensable position and role in the Criminal Code, and emphasized the importance and significance of the application of judicial measures to deal with crimes, contributing to prevent from crimes effectively 1.2.4 The period of the promulgation of the Criminal Codes between 1999 and before 2015 The 1999 Criminal Code (later amended in 1999 and supplemented in 2009) was resulted from the second codification process of criminal law on the basis of inheriting the system of principles and regulations of the 1985 Criminal Code, simultaneously the provisions of the Criminal Code became appropriate thanks to the amendment, supplementation, improvement and development, of which the provisions on judicial measures were more complete and more clearly expressed their nature and role 1.3 The overview of criminal laws of some countries on judicial measures 1.3.1 Provisions on judicial measures in Sweden’s criminal law Sweden’s Criminal law defines judicial measures in chapter 36 under the name Other Special Legal Effects of Crime including: confiscation of property, fine of enterprises, compensation for damages and other legal measures as prescribed by law Although there is no definition of other special measures, Sweden’s Criminal Code affirmed that these special legal measures could be applied simultaneously with penalties 1.3.2 Provisions on judicial measures in France’s criminal law France’s Criminal law points out a system of criminal coercive measures apart from penalties, known as security measures Among the security measures that apply to offenders, there are some measures construed as either primary or additional penalties within the penalty system Specifically, the security measures apply to juvenile offenders including: mandatory supervision, mandatory attendance at a correctional institution; to offenders over 18 years old including: expulsion, prohibition of accommodation in the territory of France The classification of penalties and security measures only identified the different purposes of these measures, but the nature and security measures could still be the main or additional penalties in the system of penalties 1.3.3 Provisions on judicial measures in German Federation’s criminal law Germany’s Criminal Code defines judicial measures in chapter three, title 6under the name Measures of reform and prevention including: compulsory 11 placement in a psychiatric hospital, compulsory placement in an addiction treatment facility, compulsory placement in preventive detention, mandatory supervision of conduct, disqualification from driving and disqualification from exercising a profession It can be seen that Measures of reform and prevention prescribed by Germany’s Criminal Code are not under the penalty system nor are they considered as an accompanying consequence as the criminal law in some other countries in the world, they are separate from criminal prosecution system aiming to improve the status of the person being applied as well as to ensure social safety 1.3.4 Provisions on judicial measures in Russian Federation’s criminal law Russian Federation’s Criminal Code stipulates judicial measure at Section VI, chapter 15 and chapter 15-1 under the name Other Criminal Legal Measures, including: compulsory measures of medical treatment, confiscation of property and compensation for damages, compulsory education There is no separate part on judicial measures or any provisions indicating the purpose and meaning of the application of these measures in Russian Federation’s Criminal Code However, in each specific measure, law makers clearly apply the method, target and duration 1.3.5 Provisions on judicial measures in China’s criminal law China’s Criminal Code incompletely defines judicial measures including: compensation for losses, mandatory attendance at an educational institution, compulsory medical treatment, warning, written self-criticism These measures which appear in China’s Code also figures out that Chinese lawmakers have noted the existence of other criminal coercive measures in addition to penalties On the basis of researching judicial measures in the criminal law of other countries, the dissertation has pointed out the similarities and differences between Vietnam's criminal law and the criminal law of the countries mentioned above Thereby, the dissertation also recommends selected and studied points for the completion of judicial measures in the criminal law Conclusion of chapter In summary, the definitions of judicial measures are constructed from scientific bases, from experiences on judicial measures prescribed by foreign countries, from the analysis and evaluation on forming and developing judicial measure institutions for years, accepted and reasonable points would be taken into consideration of current criminal law on judicial measures The correctness and reasonability of scientific theories will once again be confirmed and clarified in relation to the current Vietnam’s criminal law In addition, the research results of this chapter will become the theoretical foundation for understanding and assessing practical problems of judicial measures Finally, the points mentioned in this chapter would be recommendations for the completion of Vietnam's criminal law in the final chapter of the dissertation 12 Chapter JUDICIAL MEASURES UNDER THE PROVISIONS OF THE CURRENT VIETNAMESE CRIMINAL LAW AND PRACTICE OF APPLICATION 2.1 Current Vietnamese criminal law provisions on judicial measures 2.1.1 Provisions on confiscation of money and items directly related to the crime Confiscation of money and items directly related to the crime is interpreted as confiscation to supplement the state budget, however, if the confiscated objects and money are no longer valid or used, they must be destroyed In terms of applicable conditions, confiscation of money and items directly related to the crime applied to all types of crimes and to all criminals In terms of content, confiscation of money and items directly related to the crime is deprivation of objects, money of offenders or stripping of objects and money that offenders have earned from crimes to pay into the state budget or for disposal if no longer valid The purpose of this measure is to prevent and ensure the deterrence of crime, stability and social order 2.1.2 Provisions on returning, repairing of property or provision of compensation; offering of public apology In terms of applicable conditions, this measure can be applied to all types of crimes and all subjects In terms of content, this measure force criminal subjects to return properties they have illegally appropriated to their lawful owners or managers In cases the criminal subjects have caused the above properties to be damaged, they must repair or compensate for the damage or must still apologize publicly In terms of purpose, this measure is applied to support the penalty, in order to restore the original state of ownership when the crime has not occurred or to remedy the consequences caused by the criminal act, to restore the honor and dignity that the offender committed with the victim 2.1.3 Provisions on mandatory disease treatment Mandatory disease treatment is forcing a person who, during or after performing dangerous acts for the society but before being convicted or is serving a penalty, loses his/her awareness or control of his/her acts, must go to specialized treatment facilities for the purpose of eliminating conditions that may lead to new offenses in the future due to their illness In terms of applicable conditions, mandatory disease treatment is only applied to people who commit dangerous behaviors for the society that suffer from mental illness leading to the loss of cognitive ability or the ability to control behaviors For the purpose, this measure is intended to prevent the possibility of harming social order and safety of people with mental illness or other illnesses that cause mental disorders as well as eliminate the possibility of leading to dangerous behavior for society 13 2.1.4 Provisions on education in correctional institutions to juvenile ofenders For the condition, the education in correctional institutions is the measure applied to juvenile offenders due to the seriousness of the offenses, his / her identity and the living environment It cannot guarantee education and amelioration but it must place the person in a strictly disciplined institution instead of imposing penalties on them Concerning the content, education in correctional institutions limits the freedom of to juvenile offenders and train in a strictly disciplined environment, fully comply with the rules, regulations, studies and practice under the strict supervision of correctional institutions for a certain period of time from 01 year to 02 years For the purpose, these measures are applied to ensure the deterrence and prevention 2.1.5 Provisions on judicial measures taken against a corporate legal entity committing a crime include 2.1.5.1 Restoration of original state Restoration of original state is considered to be a very effective support for the punishment If penalties are only considered as an effective legal tool to punish offenses committed by an individual in the name of legal entities, then it is the responsibility of the legal entity to restore the original state for material damage caused by an individual, organizations or a society 2.1.5.2 Implementation of other measures for mitigation and prevention of consequences Remedy may be interpreted as the legal entity committing a crime by using measures prescribed by law to limit or restore a part of the original state caused by its acts According to the above provisions, an act may be applied many remedies in addition to other sanctions Law-makers formulate the contents of measures to force the remedial and prevent from consequences continously happening related to the environment, goods, products and articles that are the subjects of the impact of these criminal groups 2.2 Practical application of the provisions of the law on judicial measures in Vietnam from 2008 to 2017 2.2.1 Situation of applying judicial measures in Vietnam from 2008 to 2017 2.2.2.1 The situation of applying judicial measures to confiscate objects and money directly related to crimes The application of measures of confiscation of objects and money directly related to crimes focused on the following criminal groups: crimes of offences against the person and repulation offences against rights of property drugrelated offences against public order and public safety These crimes are both affected by property and at the same time, offenders often use tools and means to support crimes Therefore, when being handled criminally, the competent authorities will temporarily seize them to serve the process of investigation, prosecution and trial When deciding criminal responsibility for offenders, the Court may exproprivate or destruct If the property is owned by the other that 14 has no fault in letting the offender use it in the commission of a crime, then the property must be returned to that entity In addition, competent authorities may impound property as custody to ensure the execution of sentences Table 1.2: Situation of applying judicial measures to confiscate objects and money directly related to crimes Article Number Applying judicial measures Ratio % of cases to confiscate objects and money directly related to crimes Article 93 116 105 83% Article 112 30 30 100% Article 133 40 40 100% Article 135 8 100% Article 136 7 100% Article 138 60 55 91,6% Article 139 95 92 96,8% Article 140 35 30 85,7% Article 194 54 54 100% Article 250 33 30 90,9% Article 258 7 100% Article 278 0% Article 280 0% 500 458 91,6% Total 2.2.1.2 The situation of applying judicial measures to return properties, repair, compensate damages, and force public apology In order to evaluate how often this measure is applied in practice, the author relied on statistics of high-probability criminal groups by selecting 500 sentences at random in provinces and cities across the country within 10 years, although this is only a relative number However, they also reflect quite fairly and honestly the situation of applying this judicial measure, because these are the criminal groups with the highest rate of court proceedings Table 2.2: Number of cases on crimes applying judicial measures to return properties, repair, compensate damages, and force public apology Article Number of Applying judicial measures to cases return properties, repair, Ratio % compensate damages, and force public apology Article 93 116 110 94,8% Article 112 30 10 33,3% Article 133 40 38 95% 15 Article 135 Article 136 Article 138 Article 139 Article 140 Article 194 Article 250 Article 258 Article 278 Article 280 Total 60 95 35 54 33 500 55 92 28 14 29 409 100% 100% 91,6% 96,8% 80% 25,9% 87,8% 57,1% 100% 85,7% 81,8% 2.2.1.3 Situation of application of compulsory judicial measures for medical treatment Through the statistics of cases where offenders are subjected to compulsory medical treatment, we also realize that according to the mental forensic examination plays an important role to quickly resolve the case, but currently has not been paid attention to implement effectively and synchronously Table 3.2: Situation of defendant applying of mandatory disease treatment at the proceedings Year (1) 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 Total Total number of defendants (2) Number of Number of Ratio % detainees prisoners applying of (3)+ (4)/ applying of of mandatory (2) mandatory disease treatment disease treatment (4) (3) 101,285 0 96,803 40 0,04% 89,072 79 0,08% 105,408 50 0,04% 117,110 62 0,05% 117,402 47 0,04% 116,178 123 71 0,16% 106,200 88 33 0,11% 101,536 116 67 0,18% 95,248 61 21 0,08% 1,046,215 666 192 0,08% (Source: Statistics of the Supreme People's Procuracy) 16 2.2.1.4 Situation of applying judicial measures to juvenile offenders Through the research of cases of defendants applying the Court's at all levels during 10 years, it has been shown that the number of defendants applied each year is very small, even though there is any increase significantly It can be recognized that, while the judicial mesures are important in educating and reforming juvenile offenders, giving them the opportunity to ameliorate their personalities to soon reintegrate into the community, but in fact, very few are applied Table 4.2: Situation of juvenile offenders applied judicial measures from 2008 to 2017 Year The total Total The number of The number of number number of defendants who defendants who of cases defendants applied applied the measure with of juvenile measure of education in juvenile offenders sending to communes, wards offenders correctional and towns institutions 2008 2744 3900 2009 2722 3710 4 2010 2582 3418 2011 2355 3243 1 2012 4541 6157 13 24 2013 3979 5277 17 2014 3402 4476 2015 2757 3609 2016 2424 3169 2017 1877 2373 Total 29383 39332 52 75 (Source: Statistics of the Supreme People's Court) In summary, from the practical situation of the application of the judicial measures of the procedure-conducting agencies in the past 10 years in whole nation, it can be seen that, the judicial system has contributed to thoroughly handling crimes and promoting the effect of disposal of crimes together However, the practice of applying judicial measures also shows that there are still obstacles, inadequacies in the law, shortage in the process of law application…These issues will be analyzed in details in the following sections 17 2.2.2 Problems and limitations in the practice of judicial application 2.2.2.1 For judicial measures to confiscate objects and money directly related to crimes Firstly, the problems mentioned in Clause 1, Article 47 confiscation of tools and means of the offenders or of other persons who are at fault in letting their properties be used as tools and means for offenses, but the property has been sold or is not recoverable; problems related to the identification of objects and money due to crimes or from the sale, purchase or exchange of such things, with regard to problems of objects that the state banned from storage and circulation at Point b, Clause 1, Article 47 Secondly, restrictions on how to understand and apply the law In current practice, the confiscation of tools and means used in the commission of crimes is still inconsistent between the procedure-conducting agencies due to different understandings about the tools and means used for the commission of crimes Thirdly, the limitations of the procedure proceedings Practices handling crimes, handling material evidence show that, in some cases, the measures of confiscation of objects and money directly related to crimes should be applied but the courts not 2.2.2.2 For judicial measures returning properties, repairing or compensating damages, forcing to publicly apologize Firstly, problems about the provisions of law There are viewpoints that the measures of returning property, repairing or compensating for damage are measures prescribed by the Penal Code but belong to the content of civil liability because they originate from the obligation to pay for damages caused by criminal acts Secondly, restrictions in the application process Agencies conducting legal proceedings are still not in order in the application of the provisions of Clause 2, Article 41 to Clause 1, Article 42 of the 1999 Penal Code to return properties to their lawful owners or managers that the offender appropriated 2.2.2.3 For mandatory judicial remedies cure Firstly, problems about the provisions of law For those who commit an act dangerous to society while suffering from a disease specified, their offenses have not been criminally prosecuted After committing crimes, how is compulsory medical treatment applied? Secondly, restrictions in the application process The agencies are embarrassed in applying the law to deal with cases of illness after committing crimes and later cured Or for those suffering from other illnesses that lead to the loss of awareness or the ability to control who behavior under Clause 1, Article 13 of the Criminal Code 2015 and they are also considered to be incapable of criminal liability In case at the time of committing crimes, whether compulsory measures of healing are applied or not 18 Thirdly, restrictions and difficulties in the implementation of mandatory judicial remedies cure 2.2.2.4 Judicial measures against juvenile offenders Firstly, problems about the provisions of law Provisions on judicial measures are not specific and not distinguish between administrative handling measures and judicial measures, conditions for applying measures are not clear, and there are no binding obligations against juvenile offenders to whom judicial measures replacing penalties are applied Secondly, restrictions and difficulties in the implementation process The state management of correctional institutions yet is not synchronized and effective Currently, the organization of the state management system for correctional institutions has not yet been consolidated and not yet professionalized 2.2.3 The cause of the problems and restrictions in the application of judicial measures 2.2.3.1 The cause of the legal system Due to the fact that the criminal law has not caught up with the rapid and diverse development of social relations that need to be adjusted, due to the lack of coherence and uniformity of the law, it has caused some embarrassments in the application of judicial measures of procedure-conducting agencies or procedure-conducting persons 2.2.3.2 Causes of guidance and interpretation of laws Guidance on the application of laws by competent agencies has not yet been consistent, timely and synchronized The documents guiding the application of the provisions of the Criminal Code, the Criminal Procedure Code are still scattered or only guide a specific issue that confuse the procedure-conducting agencies in their application 2.2.3.3 The cause of the subject of application of the law Those who apply the law still have many restrictions of their awareness and practical capacity The number of cases is increasing while the number of judicial officers and judicial officers are insufficient to meet the needs of prompt, timely and lawful handling, which has led to the overcrowded, backlog of judgments, overdue sentences increased 2.2.3.4 Causes of material facilities and equipment The State's economic conditions have not yet met the requirements of the full and effective implementation of criminal coercive measures in general, including judicial measures in particular Physical conditions, facilities, infrastructure, equipment are still inadequate and unable to meet the requirements of the implementation of current judicial measures 19 2.2.3.5 The cause of the coordination carried out between the competent authorities The coordination of competent agencies in the enforcement of judicial mesures is not yet tight, leading to ineffectiveness 2.2.3.6 Other causes Due to the restricted awareness of the aggrieved party, so they not have legitimate requirements for the entities conducting legal proceedings, especially with respect to the court during the trial process to implement the proper application of judicial mesures The economic factor is also a significant factor affecting the judicial activities, the proceeding process or the judgment execution activities and the impacts on the subjects that carry out this activity both objectively and subjectively Conclusion of chapter In terms of research of the current situation of Vietnam's criminal law on judicial measures, it can be seen that there are still problems in the criminal legislative situation and criminal handling practices due to the objective and subjective causes Therefore, analyzing and evaluating the provisions of the current law, analyzing and evaluating practical practices is necessary, thereby providing effective solutions to support the effective application of judicial measures in practice The above-mentioned issues will be the premise for the author to continue perfecting the remaining content of the thesis, as well as achieving the final purpose of the study of judicial measures, which is to discover devise solutions to ameliorate their effectiveness and apply them in practice 20 CHAPTER THE COMPLETION OF LAW AND SOLUTIONS TO IMPROVE THE APPLICATION OF JUDICIAL MEASURES 3.1 Applied factors in accordance with regulations on judicial measures in the 2015 Criminal Code The dissertation indicates the following factors: Firstly, the provisions of the Cirminal Code on judicial measures must be applied simultaneously and ensure the principles of criminal law; Secondly, make sure to quickly develop and issue guidanceon implementing and explaining new provisions in the criminal code; Thirdly, the application of judicial measures also takes into account of the qualifications and capabilities of the proceeding-conducting persons; Fourthly, facilities, equipment, and means also need to be invested to meet the timeliness and effectiveness of the implementation of judicial measures; Fifthly, it is necessary to have a consistent mechanism among the competent authority, competent law enforcement persons, and the specialized staff; Sixthly, it is necessary to make sure the requirement ofthe prevention and prompt and strict prosecution of crimes, ensuring the respect of democratic rights, legal rights and interests of citizens 3.2 The completion of legal regulations on judicial measures 3.2.1 The completion of regulations of the criminal law on judicial measures 3.2.1.1 Concerning the general regulations on judicial measures First, it is necessary to theoretically define judicial measures to ensure the clarity and consistency in comparison with other definitions in the criminal law, including the role and effect of the application of judicial measures, entities of application, especially the principles of the application of judicial measures Second, in order to ensure the consistency and completeness, it is necessary to re-design Article 46 on fully listing judicial measures, adjusting the name of judicial measuresapplied to corporate legal entities committing crimes in Article 46 to ensure the consistency with Article 82 of the Criminal Code Third, it is necessary to supplement new judicial measures to ensure effective prosecution of crimes and prevent dangerous acts for society 3.2.1.2 Regarding some specific judicial measures Firstly, for the confiscation of objects and money directly related to crimes, it is necessary to prescribe the collection process to ensure the strict confiscation, especially in case money and objects no longer exist or cannot be finallydetermined where they are Secondly, with regard to property return, it is necessary to clarify the difference of the regulations of Section 2, Article 47 and Section 1, Article 48 on return of property 21 Thirdly, with respect to the compensation for losses, it is necessary to represent the nature of judicial measures in the Criminal Code Fourthly, it is advised to eliminate the provision of offering of public apology in the current Criminal Code, whichshould be considered as a civil measure and apply the provisions of the Civil Code for the adjustment and implementation Fifthly, it is better for the Procuracyto apply compulsory medical treatment before the prosecution of a criminal case rather than it iscurrently prescribedin Article 447 of the 2015 Criminal Procedure Code Sixthly, it is necessary to keep researching the expansion of entities applying compulsory medical treatment, accordingly helping to timely prevent dangerous acts from being considered crimes for society in reality Seventh, it is necessary to stipulate more clearly the provisions to be able to apply compulsory education in a correctional institution to juvenile offenders instead of penalties that they are exempted from the criminal liability 3.2.2.The completion of guidance on the application of criminal law, criminal procedures, and execution of criminal sentences related to judicial measures First,the Council of Judges of the Supreme People's Court should select the judgments that apply judicial measures prescribed in the latest Criminal Code to develop into judicial precedents for the Courts to apply in the trial process Second, the competent authorities should issue joint circulars on providing the guidance for the agencies conducting legal proceedings, ensuring the consistence in the application of law Third, concerned authorities should organize conferences and workshops to summarize lessons learned in the practice of applying judicial measures, thereby serving as a base for adjusting, supplementing and amending the legislative and practical deficiencies, if any 3.3 Enhancing the capacity and professional responsibility for members in charge of the investigation, prosecution, judgment and enforcement of judgment The competent members in the course of the investigation, prosecution, proceedings and enforcement of judgment should improve their professional knowledge so that the implementation of judicial measures complies with the provisions of law The State should regularlygive training courseson professional knowledge and skills to people who directly work with juvenile offenders such as educatorwarden, regional police, mediators, officials in the field ofpopulation, family and children in the locality Relevant members in charge of implementing other decisions of the Court need to enhance their professional skills in particular and legal knowledge in 22 general so that the implementation of judicial measures can reach expected results 3.4 Increasing the coordination among competent authorities in the application of judicial measures During theaccusation and investigation, the Procuracyand the Investigation Agency should closely coordinate in the application of compulsory medical treatment or confiscation of objects and money directly related to crimes During theprosecution, the Procuracy should rely on the final report of investigation by the investigation agency to determine whether psychiatric medical examinations are required to apply compulsory treatment During the trial, the Court must coordinate with the Procuracy and the Investigation Agency to deal with evidence, consider whether the confiscation of property is applied and return it to the legal ownerif necessary, take into account of the application of compulsory medical treatment In addition, the proceeding conducting agencies should have active coordination with other competent authorities such as civil judgment enforcement agencies in the application of compensation for losses, the center of mental forensic examination, psychiatric hospitals for the purpose of compulsory medical treatment, correctional institutions for compulsory education, other agencies and organizationsapplying judicial measures to entities committing crimes 3.5 The completion of organizations and agencies conducting judgments in general and agencies implementing judicial measures in particular Further research should be done to improve the model of the criminal judgment enforcement system in particular including agencies implementing judicial measures and the system of judgment enforcement agencies in general The system of criminal judgment enforcement agencies needs to be established synchronously and consistently managed from the central to local levels, ensuring the effective coordination between criminal and civil judgment enforcement in criminal cases and other civil measures 3.6 Investing and upgrading facilities and infrastructure to effectively implement judicial measures The State should continue to build or upgrade facilities to implement judicial measures including confiscation of objects and money directly related to crimes; The State should take into account of establishing or building specialized medical institutions in localities where there are entities who suffer from a mental diseaseand are being treated; The State should invest in facilities of reform schools where spoiled children and juvenile offenders are educated 23 3.7 Other solutions Competent agencies and authorities should improve the cooperation and exchange of legislative experience and implementation of other countries' criminal coercive measures, especially judicial measures applied to entities committing crimes The State should strengthen international cooperation and mutual legal assistance to recover property and deal with foreign evidence The State also needs to enhance the propaganda and dissemination of the contents of the Criminal Code in general and judicial measures in particular so that citizens can update and understand the new provisions of the 2015 Criminal Code, thuscitizens can themselves protect their legal rights and interests in case the application of judicial measures affects their rights Conclusion of chapter The dissertation has pointed out the necessary issues in the process of applying the provisions of the 2015 Criminal Code Based on the obtacles and limitations as well as their causes, the contents of chapter has indicated solutions and recommendations to improve the law and enhance the effectiveness of the application of judicial measures, helping to prevent and fight crimes effectively in both theory and practice These solutions are still appropriate to the criminal policy of the Party and the State, ensuring the uniformity of the criminal law with the Constitution and other laws in the Vietnamese legal system As the result, the State's humanitarian principles in dealing with crimes is obviously shown“severe punishment is associated with lenience, punishment is combined with education and persuasion” 24 D CONCLUSION Judicial measures are criminal coercive measures, which show the State's condemnation of dangerous acts to society and to crimes committed by the subjects Researching Vietnam's criminal legislative history through periods can be seen that the establishment of new judicial measures was officially recognized only when the first criminal law was established and completed more than times of amendments and additions Researching criminal laws of some countries in the world that have provisions on judicial measures, we can see that the criminal policy is both flexible and diverse but still ensures the purpose of preventing and combating crimes of countries Thereby, the thesis also draws out the similarities and differences in the criminal law provisions of each country in order to gain experience in handling criminals Researching the provisions of the current criminal code, it can be seen that the diversity of the scope of subjects, subjects of application, subjects of enforcement has made judicial measures meet the needs Bridge to fight against crime in many different stages of the proceeding process However, it is this diversity that has led to unavoidable obstacles in practice Continuing to improve the provisions of the penal code and proposing solutions to improve the effective application of socio-political significance and great legal significance in the fight against crime prevention It also enhances the role and position of judicial measures in Vietnam's criminal legal system However, there are still many issues related to the establishment of judicial measures from both the theoretical, regulatory and practical aspects of applying the measures mentioned in this thesis research process ... differences with Vietnam's criminal law; - Research, analyze and evaluate the current provisions of the criminal law and the reality of the application of judicial measures in Vietnam's criminal law,... Vietnam's criminal law from 1945 to 2015 Criminal Code and the criminal law of a number of states in the world have regulations on judicial measures, studying the current provisions of Vietnam's... the practice of applying these measures in Vietnam, studying solutions to improve their effectiveness of the application of judicial measures in Vietnamese criminal law 3.2 Research scope The thesis