ummary of the doctoral dissertation in law the legal status of accused persons under the vietnamese criminal procedure law in ho chi minh city

VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES L HUYNH THI NGOC HAN THE LEGAL STATUS OF ACCUSED PERSONS UNDER THE VIETNAMESE CRIMINAL PROCEDURE LAW IN HO CHI MINH CITY Major: Criminal Law and Criminal Procedure Law Major code: 9.38.01.04 SUMMARY OF THE DOCTORAL DISSERTATION IN LAW Hanoi - 2021 The dissertation completed at Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences Supervisor: Assoc Prof Dr Tran Dinh Nha Reviewer 1: Prof Dr Hồ Trọng Ngũ Reviewer 2: Assoc Prof Dr Cao Thị Oanh Reviewer 3: Assoc Prof Dr Trịnh Tiến Việt The dissertation will be defended at Graduate Academy Level Council of dissertation assessment at Graduate Academy of Social Sciences Time: ………… date ……… month …… …year 2021 The dissertation may be found at: - Vietnam National Library; - Graduate Academy of Social Sciences Library INTRODUCTION The necessity of the research topic Human rights are natural, inherent and objective rights of the human beings which recognized and protected by national laws and international legal agreements, and each person has rights because they are the people If people lose these rights, they are no longer human In Vietnam, human rights, basic rights and obligations of citizens are always respected and guaranteed Along with the recognition of human rights, basic rights and obligations of citizens in the Constitution 1946, 1959, 1980, 1992, our Party and State have enforced many policies to ensure human rights and basic rights and obligations of citizens and has mostly participated in international treaties of human rights The 2013 Constitution stipulated that “Human rights and citizen rights can only be restricted by the provisions of the law in necessary cases for reasons of national defense, security, social order and safety, social ethics, community health” (Clause 2, Article 14) The accused persons are also human, however, because they are suspected of committing a crime, they are restricted some rights by the law Therefore, to ensure and protect human rights of accused persons, the law needs to specify the accused person and their legal status so that they can exercise procedural rights and obligations that proceeding-conducting agencies and persons could not violate and obstruct them In terms of awareness: Currently, many countries in the world and Vietnam also have specific provisions on the legal status of accused persons towards respect respect and protect human rights in criminal proceedings, when considering and resolving a criminal case the accused persons are in the central position They are the most important entity in the legal relationship of criminal proceedings, or in other words, if there are no accused persons, there will be no criminal cases, and when criminal cases occur, criminal proceedings activities will clarify the truth of the cases on the basis of implementing the provisions of the criminal proceedings in the process of investigating, prosecuting, and adjudicating to prove the accusation This activity must right procedure, order, objectiveness, properly, right person, right crime and not neglect crimes in the context of the industrial revolution 4.0 In terms of legislation: the legal status of accused persons is now stipulated clearly and specifically by law, especially in the 2013 Constitution and the criminal procedure law The important issue is how to enforce the provisions of the law in practice to ensure and protect human rights and citizen rights of accused persons in criminal proceedings, demonstrating humanity, not to slander innocent people but not to neglect crimes, and limit procedural violations in prosecuting, investigating, hearing and executing criminal cases Although the Vietnamese criminal procedure law has legally created the premises, conditions, mechanism and measures to inspect and supervise criminal proceedings activities of proceeding-conducting agencies and persons, namely, Investigation Agency and People’s Procuracy, the People's Court, and judicial titles, facilities for legal proceedings In recent years, however, Vietnam’s criminal proceedings still reveal many limitations, the rights of accused persons are not guaranteed There are still unjust cases in some countries due to objective and subjective reasons, especially short-sighted legal thinking and misunderstanding of the law, arbitrary application of legal provisions in verifying, investigating, prosecuting and hearing when proceedingconducting persons usually towards accusation and negative prejudices of society against the accused persons In practice, Ho Chi Minh City (HCMC) has the largest number of lawyers (accounting for 40% of the country’s lawyers), many lawpracticing organizations (accounting for one third of the whole country) Although there are many favorable conditions for the lawyer's practice, by 2020, HCMC’s goal is to have over 50% criminal cases being judged by the Court with lawyer’s participation but has not yet reached for now Some lawyers have not been proactive and active in self-studying and updating legal knowledge to improve their professional skills as well as improving political, ethical and behavioral qualities In addition, some lawyers not have responsibility for their work, and enthusiasm to their clients, they are just interested in remuneration but disregard their practice quality This has greatly affected the legal status of accused persons in HCMC In terms of justice and the protection of human rights: To ensure the procedural status of accused persons, it is necessary to have a direct mechanism to protect the criminal procedural rights and obligations of the accused persons In addition to the legal content stipulates the accused person’s rights and obligations along with the rights and obligations of the proceeding-conducting agencies and persons, but in order to achieve the highest efficiency, it is necessary to have further specific provisions on methods and limits for accusers and accused persons perform their rights and obligations without infringing upon each other’s rights At the same time, there is a solution to consolidate the organization, facilities and means of work and detention of proceeding-conducting agencies and lawpracticing organizations in a modern and professional manner and to meet promptly legal services for subjects (especially the accused persons); ensuring the quantity and quality of lawyer forces Determining the legal status of accused persons is very important not only resolve a criminal case but also protect their legitimate rights and interests When referring to the legal status of a subject, it not only refers to the legal rights and obligations of the subject, but also the way of implementing the subject’s rights and obligations In practice, however, guaranteeing and protecting the legal status of accused persons is not sometimes really paid attention in theoretical studies and application of the law Although there have been so far many works that have clarified the rights and obligations of the accused persons on the basis of researching the provisions of the criminal procedure law, human rights, citizen rights of the accused persons in the criminal proceedings, but they not pay attention to the principle of the rights of one party to be obligations of other party and vice versa so as to examine the relationship among subjects in criminal proceedings In fact, the application of criminal procedure law shows that the law has fully provided the rights of subjects participating in the proceedings but has not specifically stipulated obligations of proceeding3 conducting subjects to meet those rights According to the author, studying the legal status of accused persons not only arising from their rights and obligations but need further examine its correlation with the rights and obligations of proceeding-conducting agencies and persons This is the way so that the accused persons perform their rights and obligations, as well as activities of the proceeding-conducting agencies and persons, and the competent persons when implementing criminal law and policies Additionally, there are still big gaps in applying criminal procedure law and policies on ensuring human rights and procedural rights of accused persons nationwide in general and in HCMC in particular Theoretically and practically, it is necessary to examine to find out the causes and propose solutions to further improve criminal procedure law to guarantee human rights and procedural rights when the accused persons are considered without crime until proven by legal order and having the Court’s conviction that took legal effect With such reasons, it is necessary to examine systematically theoretical and practical issues on “The legal status of accused persons under the Vietnamese criminal procedure law in HCMC” Research purpose and tasks 2.1 Research purpose Based on theory, regulations and the criminal procedure law enforcement on the legal status of accused persons, the dissertation seeks to examine and assess comprehensively the legal status of accused persons under the Vietnamese criminal procedure law over the years in HCMC The dissertation findings contribute to building and perfecting the criminal procedure law, propose solutions, mechanisms of guaranteeing and protecting human rights of the accused persons to effectively implement their legal status in criminal procedure in Vietnam in general, and in HCMC in particular 2.2 Research tasks First, the study seeks to analyze and explain theoretical issues on the rights and obligations of accused persons under the Vietnamese criminal procedure law, it then distinguishes the legal status of each type of accused persons from other criminal procedure subjects and proceeding participants Studying methods and measures to implement the rights and obligations of accused persons is shown by examining activities of proceeding-conducting agencies, proceeding-conducting persons and proceeding participants to clarify the concept, nature, subjects, rights and obligations of the accused persons under the Vietnamese criminal procedure law; criminal policies, procedural functions, procedural models to ensure the rights and obligations of accused persons under the Vietnamese criminal procedure law; to explain factors affecting the implementation of criminal policies, procedural functions, procedural models to ensure the rights of accused persons under the Vietnamese criminal procedure law, in which the role of lawyers and defendant’s agent Second, the dissertation tries to analyze and evaluate the reality of applying criminal policies, criminal laws and criminal procedures for guaranteeing and protecting the rights of accused persons under the Vietnamese criminal procedure law in HCMC to find out the causes, limitations and shortcomings as a basis for proposing solutions to strengthening the legal status of accused persons Third, the study builds and completes a system of solutions to improve efficiency of the implementation of the rights and obligations of accused persons under the Vietnam’s criminal procedure law nowadays Research subject and scope 3.1 Research subject The research subject of the dissertation is the rights and obligations of accused persons, methods and measures to implement the rights and obligations of accused persons in three aspects including reasoning, real law and implementation in practice, and applying the criminal procedure law for the accused persons in HCMC 3.2 Research scope The dissertation analyzes and explains theoretical and practical issues on the rights and obligations of accused persons under the Vietnamese criminal procedure law It then distinguishes the legal status of the accused persons from proceeding-conducting subjects and proceeding participants By examining activities of proceeding-conducting agencies, proceedingconducting persons and proceeding participants, the dissertation analyzes methods, measures of implementing the rights and obligations of accused persons to clarify concept, nature, subjects, rights and obligations of the accused persons under the Vietnamese criminal procedure law The dissertation seeks to examine, make statistics, and survey the reality of regulations and enforcement of criminal procedure law on the legal status of accused persons in HCMC It also points out limitations and propose solutions to improve the criminal procedure law These solutions contribute to implementing effectively the legal status of accused persons in Vietnam in general, and in HCMC in particular - Regarding time: for legal documents, the dissertation mainly analyzes and evaluate regulations of Criminal Procedure Code 1988, 2003 and 2015, and legal documents - Regarding administrative documents: statistical reports of law protection agencies, law enforcement agencies in HCMC - Regarding survey data: the study tries to synthesize, analyze, evaluate and compare date from 2009 to 2019 - Spatially: HCMC Methodology and research methods 4.1 Methodology The dissertation based on methodology of dialectical materialism, historical materialism of Marxism-Leninism and Ho Chi Minh's thought on the State and Law, human rights and citizen rights in relation to state power, judicial reform, and rule-of-law-state 4.2 Research methods - Direct research method through actual survey, direct contact and exchange with researchers, people in charge and research in the field of politics and law - Indirect research method by synthesizing and analyzing documents, especially the primary documents, comparing research matters among selected subjects - Research approach based on the mode of enforcing the rights Accordingly, the study of accused persons in Vietnamese criminal proceedings through prosecution-based approach as a legal measure to exercise human rights, or more specifically, not only research on concept of accused persons, what they have rights, but need to pay attention to the mechanism so that proceeding-conducting persons could enjoy full rights and strictly complying with obligations The approach based on the exercise of procedural rights is also the dialectical approach in a common relationship between the parties, the rights and obligations of this party will be the rights and obligations of other party, respectively In practice, proceedings will specify which agency and individual has the responsibility and obligation to ensure these rights of the accused persons, explaining why the law gives many rights for the accused persons but cannot implement Since then, we could find out problems, obstacles and resolve them in practice To address the research tasks, the study utilizes multidisciplinary and interdisciplinary approach to the following specific research methods: - Chapters and 2: Using analysis, synthesis and comparison methods to build the concept of accused persons and their rights and obligations in the Vietnamese criminal proceedings, the bases for determining the legal status of accused persons, namely: + Summarizing experience and scientific knowledge of pervious research works to make evaluation in the study so that the dissertation associates with reality and it has a higher scientific value + Conducting practical surveys to assess the reality of guaranteeing the rights and obligations of accused persons as well as other issues related to ensuring the accused person’s rights, obligations and powers of proceedingconducting agencies, proceeding-conducting persons The surveys are conducted in HCMC, and then the study synthesizes, compares, analyzes data, and conclude relevant contents - Chapter 3: The author uses the method of analysis, criminal statistics, exchanges with experts, and consulting their knowledge, experiences to clarify the legal status of accused persons in relation to the procedural subjects Contents related to the guarantee and enforcement of the rights of accused persons, the role and responsibility of the criminal proceedings system throughout the criminal proceedings, in which, it emphasizes activities of proceeding-conducting agencies, proceeding-conducting persons and proceeding participants including procurators, procuracies, judges, people's jurors, defendant’s agents and other proceeding participants who directly affect the legal status of accused persons, namely: + Collecting data on annual reports of agencies in HCMC such as The Procuracy, Court, Legal Committee of the People's Council, People's Committee, Judicial Reform Steering Committee and so on to analyze the reality of guaranteeing the rights and obligations of accused persons, as well as enforcing the rights, responsibilities, and obligations of the proceeding-conducting agencies and persons + Selecting and analyzing some typical cases to learn and evaluate the perception of competent individuals in proceedings and participate in the proceedings over the rights of the accused persons, evaluation of mechanism and conditions to ensure the rights of accused persons in HCMC - Chapter mainly utilizes the synthetic method, scientific forecasts about the trends and requirements to ensure the legal status of the accused persons, thenceforth, it proposes solutions to consolidate and strengthen the legal status of the accused persons New contributions of the dissertation The dissertation not only examines and explains the rights and obligations of the accused persons from the provisions of the law and legal application in practice, but also puts the accused person’s legal status into the system of criminal law policy, criminal procedure law, combining comparison, evaluation and propose suitable solutions and mechanism to ensure the rights and obligations of the accused persons under the pressure over investigation agency, Procuracy, Court or weakening the Court’s independence, ensuring the law’s seriousness, respecting the judiciary’s jurisdiction so as to find out objective truth of the case, not making unjust and missing crimes Guaranteeing the legal status of accused persons to define an adequate limit for the accusers and accused persons are equal in organizational structure, qualifications, compliance with the law 1.4 Theoretical basis and research methods 1.4.1 Research questions To address the research tasks, the dissertation tries to answer the following questions: What are theoretical issues and the provisions of the law to ensure the legal status of accused persons under the Vietnamese criminal procedure law? How is the reality of enforcing the law on the legal status of accused persons under the Vietnamese criminal procedure law in HCMC and factors affecting the implementation process? What are the requirements and solutions to ensure the legal status of accused persons and how should they be implemented? 1.4.2 Research theories The dissertation based on the theoretical system of Marxist-Leninist philosophy; Ho Chi Minh Thought; views and guidelines of the Party and State on criminal policy and judicial reform in Vietnam in the period 2002 2020 Clarifying the provisions of the criminal procedure code 2015 (CPC 2015) on the legal status of accused persons; the relationship between accused persons and other subjects in the proceedings is also an important basis to address the research tasks of the dissertation 1.4.3 Research hypothesis In order to further improve the CPC 2015 as well as implementing effectively regulations, the dissertation examines the legal status of accused persons (arrestees, detainees, defendants (Article 58, 59, 60, 61 of the CPC 2015) is greatly influenced by the legal status of other procedural subjects, especially the legal status of the competent persons Proposal: The CPC 11 should consider the detainees in emergency as the accused persons so that they could ask accusers since they are in the investigation agency at the time the Procuracy does not have detention decision over the detainees Requirements and solutions to ensure the enforcement of rights, obligations and legal status of the accused persons under the Vietnamese criminal procedure law in HCMC Summary of chapter By reviewing literature, previous research works have provided scientific theories, thereby the author continues to explain issues related to the research topic, namely: First, examining characteristics and connotation of accused persons and it provides the concept of accused persons and explains theoretical basis of the legal status of accused persons, why there are differences among types of accused persons Second, examining the reality of the provisions and practice of enforcing rights and obligations of the arrestees, detainees, defendants in relations to the proceeding-conducting subjects and other proceeding participants Since then, detecting the shortcomings, inadequacies and suitable points in applying criminal procedure law Third, on the basis of the research findings, the dissertation proposes some recommendation and solutions to ensure the legal status of accused persons 12 Chapter THEORETICAL ISSUES ON THE LEGAL STATUS OF ACCUSED PERSONS 2.1 The concept, characteristics of the legal status of accused persons 2.1.1 Status and legal status The legal status of accused persons (commercial natural or legal persons) is associated with the provisions of criminal liability and criminal prosecution for accused persons to be the most clearly demonstrated through the Criminal Procedure Law The legal status of accused persons not only the legal basis for identifying and distinguishing rights and obligations of accused persons in each stage of criminal procedure, but also a way for accused persons to exercise their legal rights and obligations and showing the relationship with other legal subjects In order to determine the legal status of accused persons, it is necessary to identify who are the accused persons and their legal status 2.1.2 The legal status of accused persons In my opinion: “The accused persons are commercial individuals or legal persons who are suspected by competent authorities perform some acts or to commit crimes and they may be imposed coercive measures of criminal procedure or other criminal procedure measures to investigate, prosecute and hearing in accordance with the CPC of Vietnam” Accordingly, the law recognizes that individuals and legal persons are considered the accused persons if they have signs of committing crime to determine their legal rights, interests and obligations when participating in the proceedings as well as the way of conducting the proceedings The author would like to introduce the concept of the legal status of accused persons: “The legal status of accused persons is their position in the criminal proceedings mechanism expressed by determining their procedural rights and obligations in each stage of criminal proceedings” From the concepts mentioned above, we can classify the accused persons to 13 examine their procedural rights and obligations in each stage of criminal proceedings since they are accused until issuing judgement 2.1.2.1 The arrested person “The arrested person is an individual offender or to be wanted, arrestee, defendant by the decision of the competent persons or approved by the People’s Procuracy to investigate, prosecute and hearing in accordance with the Vietnamese criminal procedure law” 2.1.2.2 Detainees In the author’s opinion: “Detainees are persons to be held in custody to verify their crime sign under the Vietnamese criminal law and criminal procedure law” 2.1.2.3 Defendants In the author’s opinion: “Defendants are individuals or representatives of commercial legal person having objective legal grounds enough to prove they might commit a crime and were criminally prosecuted by the provisions of the Vietnamese criminal law and criminal procedure law” 2.1.2.4 Accused In the author’s opinion: “The accused is the person to be adjudicated at the trial in accordance with the Vietnamese criminal law and criminal procedure law” 2.1.2.5 Accused persons under 18 years of age The Vietnamese Criminal Procedure Code divided accused persons into full-time enrolment of 14 years of age or more and full-time enrolment of 16 years of age or more corresponding to each level of liability, ensuring friendly proceedings and consistent with psychology, age and perception of accused persons under 18 years old 2.1.2.6 Accused persons are commercial legal persons committing crimes Legal person who is subject to criminal prosecution to be only “commercial legal person is suspected committing dangerous acts to society that the Penal Code defines as a crime and might be criminally liable to that acts 14 2.2 Distinguishing accused persons from other criminal proceedings subjects 2.2.1 Distinguishing proceeding-conducting agencies from proceeding-conducting persons 2.2.2 Distinguishing defendant’s agent from other proceeding participants 2.3 The basis for determining the legal status of accused persons 2.3.1 Social basis The legal status of the criminal procedure subject must be considered in the specific legal relationship with other criminal procedure subjects and in the common relationship with other subjects 2.3.2 Political - ideological basis Being a profound source that directly affects the process of forming the Criminal Procedure Law, demonstrating the nature of the law and the unity of rights and obligations to stabilize the society, protecting and encouraging the development of new social relations 2.3.3 Constitutional basis The basis for forming the positive law is the artificial product of civilization, representing the powerful will of the State created by man, and expressed by the legal norms and codes Its existence and effect are determined by the powerful entity 2.3.4 Traditional of criminal justice criminal procedure law policy Criminal justice activity means exercise of state power and a set of specific actions performed by judicial agencies in criminal procedure that are directly related to resolving criminal cases properly 2.3.5 International legal standards on human rights of accused persons and regulations on the legal status of accused persons in some countries Summary of chapter On the basis of the methodology of dialectical materialism and Ho Chi Minh's thought on the law, this chapter has clarified a number of theoretical issues on the legal status of accused persons, including: content, 15 characteristics, concepts, rights and obligations related to the legal status of accused persons Distinguishing the accused persons from other criminal procedure subjects and the basis for determining the legal status of accused persons Accusation is a state agency activity or a competent person in accordance with the law to prosecute criminal liability (offenders must be criminally responsible for their acts) to people who commit dangerous acts to society stipulated by the Penal Code Since accusation until the state’s judgment or decision to a specific subject, they have become a accused person (may be individual or legal person), since then there is a relation between accused person and the state authority, the rights of one party are the obligations of other party and vice versa The content of accusation tends to prove the accused person has committed a crime or not The form of accusation is shown by the order, procedures under the law that the subjects apply for proving accusation against the accused subject The content and form of the accusation have a dialectic relationship to find out objective truth and determining the legal status of criminal procedure subject, especially determining the legal status of accused persons in each state of criminal procedure At the same time, it also proves why not only arrested, detained, internees and defendants are the accused persons but also someone is detained in an emergency when competent authorities detain people without Procuracy’s decision but accused by the state 16 Chapter THE REALITY OF THE PROVISIONS ON THE LEGAL STATUS OF ACCUSED PERSONS AND PRACTICE OF ENFORCING LEGAL STATUS OF ACCUSED PERSONS IN HO CHI MINH CITY 3.1 The reality of the legal status of accused persons in HCMC 3.1.1 Overview of crime situation between 2009 and 2019 in HCMC 3.1.2 The legal status of accused persons before 2015 3.1.3 The legal status of accused persons under the the 2015 Penal Code 3.2 Practice of enforcing legal status of accused persons in HCMC 3.2.1 The legal status of accused persons in the stage of investigation and prosecution The rights of accused persons are still difficult to guarantee, so it is necessary to have participation of defendant’s agent The legal status of detainees in emergent case, in terms of content, the law provides their rights and obligations like the accused persons, but in term of the form, the 2015 CPC has not recorded the detainees in emergent case to be the accused persons 3.2.2 Legal status of accused persons in the stage of prosecution The Procuracy is the competent agency to oversee judicial activities, including investigation and adjudication of the Court The application of non-custodial measures is still limited Therefore, it is very necessary to have an external inspection and supervision mechanism for the activities of the Procuracy when exercising its right to prosecute and supervise judicial activities 3.2.3 The legal status of accused persons in the trial stage 3.2.3.1 First-instance trial The operation of the two-level city People's Courts is also limited and their performance is not high Lack of advocate listening leading to “confrontation” but no longer “confrontment” to find out the objective truth of the case 3.2.3.2 Appellate trial 17 Superior Court judges with higher qualifications and experience will promptly detect mistakes or shortcomings in assessing evidence and applying law of lower Court judges, on the other hand, this also shows the advocate’s role in ensuring the objectivity of the case 3.2.3.3 Cassation and retrial Guaranteeing two levels of hearing including cassation and retrial to protect the legitimate rights and interests of accused persons 3.2.4 Applying the law for offenders under 18 years of age Currently, the law does not have specific sanctions to ensure the quality of the advocate when participating in criminal procedure, so sometimes it is only form affecting the legitimate rights and interests of accused persons under 18 years old 3.2.5 Applying the law for commercial legal persons committing crimes Relevant regulations have not been applied very much in HCMC 3.3 Limitations and shortcomings in exercising the legal status of accused person and the causes In the stage of the investigation, the legal status of detainees in an emergency, in terms of content, the law stipulates their rights and obligations like the arrested person, but in terms of form, the 2015 CPC has not recorded detainees in emergent case to be the accused persons The concept of litigation has recently been used popularly, so some proceeding-conducting persons not fully understand the nature of the litigation, not reporting against themselves to be considered opposing and not honestly declaring The advocates are not really taken seriously They are the key to open the door to all rights and responsibilities of accused persons It is clear that both the criminal law and criminal procedure are complex issues and it is often confusing without the advocate’s participation Summary of chapter In fact, the exercise of criminal procedure law in HCMC shows that the legal status of accused persons in each state of criminal procedure is 18 different In order for the criminal procedure system reaches high effectiveness, each criminal procedure subject, proceeding participants must understand their own rights and obligations From positive impact of Article 31 of the 2013 Constitution leading to the breakthrough approach specified in Article 13 of the 2015 CPC is the principle of innocence - a very important principle determining the legal status of accused persons were officially recorded in the CPC At the same time, on the basis of studying the legal status of accused persons in relations with agencies and proceeding-conducting persons, and other proceeding participants have identified the responsibility of ensuring the rights and obligations of accused persons to be investigation agencies, Procuracy, the people’s court at all levels, followed by the participance of other proceeding subjects such as victims, witnesses, appraisers, valuators; the supervisory role of individuals and organizations under the elected bodies such as the National Assembly, People's Councils at all levels, the Front and its member organizations; and the role of other state agencies In particular, the role of advocates, first of all, lawyers who are professionally trained to defense their clients in accordance with the Criminal procedure law and the law of lawyers, and representatives of criminal procedure participants, the rules of litigation is guaranteed in the trial, but in fact, the activities of the lawpracticing organization have not met the requirements and have not been paid attention Although the law has specific provisions, due to misunderstanding, the implementers have not applied properly such provisions leading to violation in prosecuting, investigating, and hearing Chapter RECOMMENDATION AND SOLUTIONS TO ENSURE THE LEGAL STATUS OF ACCUSED PERSONS 4.1 Recommendation to secure the legal status of accused persons 4.1.1 Respecting and protecting human rights, individuals’ legitimate rights and interests Ensuring bodily inviolable rights: it is necessary to quickly and fully equip facilities for recording and recording images when taking testimony 19 of accused persons, be aware of the presence of advocate in the stage of taking testimony is to ensure human rights of the accused persons, the agencies and proceeding-conducting persons must properly realize that the accused persons still have human rights, and they are only limited some rights stipulated by the CPC 4.1.2 Ensuring the legitimate rights and interests of accused persons The right to defend the accused person: It is very necessary to stipulate the presence of advocate since the detainee has appeared in the investigation agency headquarters, and conditions for the advocate participate in the proceedings since the investigation agency has received the detainee in emergency cases The right to protect personal life, health, honor, dignity, and property: It is necessary to change the name of accused persons into “suspecters” to remind and eliminate prejudice that the accused persons are “guilty persons” 4.2 Solutions to protect the legal status of accused persons 4.2.1 Legal solutions - Recognizing the accused persons' right to silence as a separate principle - Stipulating a mechanism to exclude the accused persons provide false testimony - Stipulating a mechanism to increase other measures in addition to custody - Recognizing the detainees in emergency case as accused persons 4.2.2 Organizational solutions 4.2.2.1 For the proceeding-conducting subjects - Stipulating clearly rights and obligations of the proceeding-conducting subjects - Strengthening coordination among proceeding-conducting agencies - Completing activities of the family courts and minors 4.2.2.2 For other proceeding participants 20 The proceeding-conducting agencies must really respect the rights of advocate 4.2.3 Other solutions - Developing and improving the capacity of lawyers to meet the requirements of participating in proceedings, legal advice, and legal aid - Strengthening propaganda and education to raise awareness of complying with the law Summary of chapter Criminal Procedure Law is a system of relevant legal documents of a country to prevent and fight against individuals and organizations committing crimes When mentioning the legal status of accused persons also includes p procedural rights and obligations of the accused persons The accused persons are always in weak position in the criminal procedure, so the protection of their legitimate rights and interests is always paid special attention and examined, especially the completion of legal provisions and reviewing whether the CPC has recorded the legal grounds to protect them or not At the same time, it is also necessary to pay attention to the CPC has stipulated the rights and obligation respectively to the proceeding-conducting agencies forcing parties comply with The legal status of accused persons cannot be independent but must be placed in the dialectical relations with the legal status of the proceeding-conducting agencies and persons The criminal law and criminal procedure have sufficient and strict regulations on institutions and provisions is only a necessary condition, the most important issue is the mechanism, method and means to effectively implement such regulations As such, this has just effectively improved the law application Determining the legal status of the proceeding-conducting subjects and proceeding participants to form a unified body and increasingly develop 21 CONCLUSION From many perspectives, the legal status of accused persons under the Vietnamese criminal procedure law today is specifically stipulated; the regulations arise from personal and social interests, and harmoniously combined, consistent with requirements, political tasks, social development and in the context of international integration The legal rights and interests of accused persons are increasingly clearly and strictly defined by law, demonstrating civilization, humanitarian, educational, and ensuring legal basis to protect the legal status of accused persons By applying the law in practice to further adjust criminal law and criminal procedure to meet social standards and fighting against crimes Accused persons are normal people but the proceeding-conducting agencies have suspected them committing crime, so their rights are limited and they must comply with such restriction Human rights of accused persons in each procedural stage is different due to measures to limit such their rights The rights and obligations of proceeding-conducting agencies, proceeding-conducting persons is that they must verify, prosecute, investigate, prosecute, hearing to prove crimes by order, procedure of the criminal procedure law to clarify objective truth of criminal cases and hearing right person, right crime The rights and obligations have stipulated in the CPC creating the legal status of the parties in relations of criminal procedure law, dialectical relations, and interact with each other in a complete system of criminal procedure The accusation process is reflected in the investigation agency’s results and indictment of Procuracy, the accused persons are always in a weak situation so they need the role of advocates to protect their legitimate rights and interest When the law considers accused persons to be not guilty or in other words, as suspecters, the advocates must also have high qualification corresponding to accusers Guaranteeing the right to advocate of accused 22 person make an important contribution to ensuring the rights to legal proceedings, the legal status of accused persons and it is also a legal measure to carry out human rights of the accused persons To guarantee and protect the legal status of accused persons, it is necessary to have strict regulations of criminal procedure law In fact, the criminal procedure process requires that when applying the criminal procedure law, must consider the legal status of accused persons in relations with authorized subjects, or more specifically, the way of implementing the rights and obligations of accused persons in relations with the rights, obligations and responsibilities of the proceeding-conducting agencies and persons This is a sufficient condition to protect human rights, citizen rights of the accused persons in practice The law should also give the concept emphasizes that the accused persons are suspecters only, thus include detainees in emergencies; emphasizing human rights of accused persons but due to the law suspects that they have committed crimes, they are limited some rights and imposed by some coercive measures The accused persons comply with obligations is also one of the conditions for implementing their rights, the legal status of accused persons will include their rights and obligations and the way of implementing such rights and obligations, it is operation of the proceeding-conducting agencies, proceeding-conducting persons based on the provisions of the CPC Creating a complete mechanism to guarantee the legal status of accused persons, especially this mechanism must have the equality of organization, strong competencies, compliance with the law of all criminal procedure subjects With limited theoretical knowledge and the dissertation’s limitation, we try to survey, analyze, make statistics and clarify the theoretical and practical issues on the legal status of accused person under the Vietnamese criminal procedure law in HCMC, thenceforth, the study propose recommendation and solutions to improve the law and mechanisms to 23 protect the rights of accused persons in Vietnam in practice The dissertation has proposed recommendation that the CPC recognize the detainees in emergencies as the accused persons, contributing to raising awareness of implementing the legal status of accused persons is that must be placed in relations to the legal status of the proceeding-conducting agencies, proceeding-conducting persons; completing theories on the characteristics and concept of accused persons in various stages of criminal procedure in order to improve the institutions on the rights of accused persons in the Vietnamese criminal law and criminal procedure 24 The author’s published-papers list related to the dissertation Huynh Thi Ngoc Han (2019), “The legal status of accused persons under the criminal procedure law of the UK and US”, Journal of Procuracy, No 14, pp.52-57 Huynh Thi Ngoc Han (2020), “The rights to ask advocate of the accused persons in the criminal procedure in some countries around the world”, Journal of Procuracy, No 2, pp 57-61 Huynh Thi Ngoc Han (2020) “Some opinions on provisions of the 2015 Criminal Procedure Code related to person held in custody in case of emergency: From a human right perspective”, Journal of Social Science Manpower, No 6, pp 41-50 25 ... and the provisions of the law to ensure the legal status of accused persons under the Vietnamese criminal procedure law? How is the reality of enforcing the law on the legal status of accused persons. .. Chapter THE REALITY OF THE PROVISIONS ON THE LEGAL STATUS OF ACCUSED PERSONS AND PRACTICE OF ENFORCING LEGAL STATUS OF ACCUSED PERSONS IN HO CHI MINH CITY 3.1 The reality of the legal status of accused. .. reality of applying criminal policies, criminal laws and criminal procedures for guaranteeing and protecting the rights of accused persons under the Vietnamese criminal procedure law in HCMC to find