Defense function in Vietnam ‘s criminal procedure

nal Procedure functions, which is the relationship between the accused function, the defense function and judicial functions. These functions are closely related, closely intertwined, coexist and develop. However, the analysis of the relationship of defense functions with the other two functions in the administrative procedure has not been deeply studied, specifically, only at the level of generalization and brief analysis. 1.3.2. Situation of defense function in Vietnam's criminal procedure - On the current situation of the provisions of the law on defense functions: A number of research studies have outlined the birth of defense functions and defense functions shown in certain historical periods. . In particular, the defense function shown in the CrPC 2015 has not been written and researched on this issue. Regarding the provisions on defense functions abroad, a number of research works in foreign countries and in the country have outlined general rights of defense, defense counsels ... in some countries such as Japan, France, Germany, ... However, there has not been any in-depth study of the function of defense in certain countries. - Regarding the current situation of performing the defense functions: All studies have highlighted the actual situation of exercising the right to defense and the defense activities of defense counsels in the administrative procedures as in the investigation period. , the stage of adjudication at the time of applying the CrPC, 2003. Most of them point out the real situation of exercising the right to defense, such as: The reality of the granting of defense certificates; Situation in the collection of documents, objects and details of defense counsels; Situation in the lawyers' contact with accused persons, suspects and defendants; The situation of lawyers at the first- instance trial, especially in the debate, in response to the Procuracy representative ... Most of the works are written about the implementation status in terms of the right to defense. Very few works have been written on the current situation of defense counsels of defense counsels, especially the situation of other defense counsels such as people's defense counsels, legal representatives of suspects and defendants. In particular, no work has been 8 written on the status of performing the defense functions of defense counsels and accused persons according to the CrPC 2015. 1.3.3. Solutions to perfect the law and ensure the performance of defense functions in Vietnam's criminal procedure The research works have raised a number of measures to perfect the regulations on the right to defense, to raise the efficiency of defense activities of defense counsels. For example: Supplementing a number of rights and mechanisms to ensure that defense counsels perform well their legal rights; Expanding a number of defense counsels' powers such as the right to collect evidence ... The defense counsel and the procedure- conducting persons must respect the pleading results and the responsibility in ensuring the performance of the defense counsels' rights and handling measures in case of violation; Amendments and supplements to regulations to create favorable conditions for defense counsels to quickly participate in the proceedings and approach the process of resolving the case in the direction of simplifying procedures for granting defense pleadings and procedures to participate in defense ... However, the evaluation of the provisions of the CrPC 2015 on the function of defense, the unreasonable contents of the defense function are codified in the CrPC 2015 ... there is no scientific study any research on this issue. Since then, the introduction of measures to ensure the implementation of the defense function and perfect the provisions of the law on defense function in the CrPC 2015 have not been comprehensively studied. 1.3.4. Issues needed for further research Firstly, the thesis needs to continue studying some theoretical issues such as: the concept of defense function has been used, mentioned by some domestic researchers but has not been unified and not studied yet. treatise to give concept and analyze inner meaning of this concept; There are no scientific studies on the function of defense functions in the CrPC, and the role of the defense functions is mentioned through the role of the Criminal Procedure function in general, so there has been no generalization and further analysis of this content. A number of theoretical issues have been mentioned by the research work but have not yet had in-depth analysis or explanation such as : The form of performing the defense function in the administrative procedure; The existence of defense functions in the criminal 9 procedure models is referred to through the analysis of LRC functions in the LRC models but still lacking; The relationship between the defense functions and the functions of the accused and the adjudicatory functions. Secondly, the provisions expressing the defense function in certain historical periods need to be analyzed and explained more in-depth, especially the evaluation of the provisions of the CrPC 2015 on the function of defense. The study of the actual situation of performing the defense functions under the CrPC 2015 should be conducted on the basis of collecting report data from the procedure-conducting agencies, the Vietnam Law Federation and conducting surveys and interviews of some lawyers in Hanoi and local areas. Third : Solutions to improve the law and solutions to organize the implementation of the defense function in the Criminal Procedure in accordance with the current situation of Vietnam and the views of the Party and the State on ensuring functional performancenin the CrPC for development orientation to 2030. Chapter 2 THEORETICAL ISSUES ON DEFENSE FUNCTION IN THE CRIMINAL PROCEDURE 2.1. Concepts, characteristics of defense function in criminal procedure 2.1.1. Concept of defense function in criminal procedure * Awareness of function The function of CrP is an integral part of the CrP. Therefore, it is necessary to be aware of the functions of the centers of general practice in general and the functions of defense in the centers of particular crimes based on the functional basis to explain more deeply the research issues. * The concept of criminal procedure function * Definition of defense function in criminal procedure Basis for forming the function of defense in the Criminal Procedure: The appearance and introduction of the function of defense in the criminal procedure is an indispensable objective. It can be said that the democratic and humane nature of the social regime is the basis for the appearance of defense functions in the criminal procedure. The nature of democratic society shows that, if there is a function of accusation, there 10 must be a function of debating - defending to ensure a thing, a phenomenon, an act which is assessed in many different directions, to identify objective truths, do not injustice innocent people; at the same time, ensure fairness in the application of the law. In the practice of applying criminal law, it is not always the right to apply the laws of the intelligence agencies and the awareness of the content of laws is not always uniformly understood. That will affect the legitimate rights and interests of the accused. Therefore, the defense function appears with the noble purpose of protecting justice, protecting the rights and interests of the accused; with the desire that the legal rights and interests of the accused are not violated or tolerated in accordance with the law. From a procedural point of view, the defense function is broader and more complex. Theoretically, legal functions are classified into regulatory and protection functions. “The protection function of the legal system is determined by the need to protect social relations, protect the interests of citizens, social groups, classes, classes and the whole commune. Assembly” [78, p.108]. The basic characteristic of protected social relations is that within the scope of such relations, state coercive measures are applied, legal responsibilities are taken. According to Assoc.Prof. Dr. Vo Khanh Vinh, in the field of CrP relations, the legal protection function manifests itself in three types of responsibility performance: in the form of security, protection, recovery. From the above analysis, it can be seen that the defense function in the administrative procedure is under the protection function. The function of defense appears to be an indispensable objective with the purpose of protecting the rights and interests of the accused, protecting the disadvantaged subjects in society from decisions of state power and guarantee for the rights of the accused are exercised in practice. The protective aspect of the defense function is shown in pointing out the options for defense and protection activities and the implementation of these activities is of common interest, preventing law violations from prosecutors, especially the accusatory subjects. In order to better understand the function of defense in the Criminal Procedure, it is necessary to put it in relation to the purpose and duties of the CrPC and the principle of Criminal Procedure. 11 Regarding the concept of the function of defense in the Criminal Procedure, there is still no agreement and currently there are many different opinions. It can be seen that criminal procedure is a combination of activities of different groups of subjects such as investigating bodies, procuracies, courts and defense counsels. When these subjects participate in the LRC, they are influenced by different tasks and interests, so their orientation of activities is also different. The administrative procedures of these subjects are bound and linked together by the common purpose of the administrative procedures and are consistent with each other. The defense function is one of the basic functions of the Criminal Procedure, therefore, derived from the approach of Criminal Procedure as analyzed above, the author considers that "the function of defense is the operational aspects the great and fundamental orientation of criminal proceedings is recognized by law and ensures the accused party's ability to present evidence and arguments against the charge; contribute to protecting justice, protecting the legitimate rights and interests of accused persons and commercial legal persons, and help the case be resolved objectively, comprehensively and fully” 2.1.2. Features of the defense function in criminal proceedings - Subjects performing the function of defense in criminal procedures: Subjects performing the function of defense also have certain characteristics, with the purpose of protecting the legitimate rights and interests of the accused. Different from the subjects of the right to defense, the subjects exercising the function of defense are: Persons held in emergency cases, accused persons and defense counsels. - Scope of the defense function in criminal procedure: The defense function arises when a person or commercial entity commits an crime. The end of the defense function is determined when the accusation are no longer available. In some special cases, when the grounds of accusation no longer exist, the competent subject who issues a decision to suspend the case will have the function of the defense ceased earlier. Or, in cases where the legally effective judgment is reviewed and re-settled according to appellate procedure, cassation or reopening procedure, the 12 defense function will appear again until a legally effective judgment is issued. new rule. - Content of defense function in criminal procedure: The content of the defense function in criminal proceedings is that the defense party uses the powers permitted by law by presenting evidence and arguments in order to combat or abolish the charge; mitigate criminal liability for the accused and protect the legitimate rights and interests of the accused. In order to do so, the defense must carry out the defense activities, through provisions on the rights of defense counsels in order to protect the accused. The contents of the basic functions in the LRC show in the activities of the respective subjects prescribed by law. The content of the defense function in the Criminal Procedure is reflected in the activities of the defense counsels and accused persons, which are provided for by the Criminal Procedure Law, in order to contribute to the protection of justice, the protection of legitimate rights and interests of accused. The content of the pleading function is specific in the defense activities of the defending subject in order to protect the rights of the accused. 2.2. The role and relationship of defense functions with other basic functions of criminal proceedings 2.2.1. The role of defense functions in criminal proceedings First: The defense function has a role in protecting justice, protecting human rights, the legitimate rights and interests of accused persons. Secondly, the existence of the function of defense, the function of condemnation and the function of adjudication are the constituent and essential elements of the CrPC, the decision on the model of Criminal Procedure and being governed by the purpose and principles of the CrPC . 2.2.2. The relationship between the defense function and the function of defense and the function of trial The CrPC consists of three basic functions, that is, the function of accusation, the function of defense and the function of adjudication. Each function has a different position, role, nature, different implementing subjects, different specific activities and especially between them, they are independent of each other. However, between these functions, there is a close relationship with each other, bound together, unified to arrive at the ultimate goal of finding the objective truth of the case. Depending on the 13 specific stage of the proceedings, there are periods when one of the three basic functions is lacking, the CrP cannot function well. Regardless of the procedural model (investigation, interrogation, litigation ...), all three functions of accusation, defense and adjudication always appear and exist. Each function exists, campaigning for the existence and movement of the other two functions [4, p.31]. 2.3. Forms of performing the defense functions in criminal procedures and the defense functions in the criminal procedure models 2.3.1. Forms of performing the defense function in criminal proceedings The function of defense in the Criminal Procedure is performed through direct forms such as: Self-performance of defense function, performed by the accused person himself or indirectly, that is to perform the function of defense through help of defense counsels (thanks to defense counsels) and defense counsel as appointed. To perform the defense functions themselves and ask the defense counsel to conduct them in parallel or only in a form depending on the views of the accused in each specific case. The self-defense and thanks to defense counsels are complementary and supportive. In cases where a person is accused of requesting defense counsels, they still have the right to defend themselves in order to protect their own interests. 2.3.2. The function of defense in criminal procedure models 2.4. Factors affecting the performance of defense functions in criminal proceedings Legal factor: Human factors and awareness: Economic, political and social factors: Chapter 3 REGULATION OF THE LAW ON DEFENSE FUNCTIONS IN VIETNAM'S CRIMINAL PROCEDURE AND PRACTICAL IMPLEMENTATION 3.1. Regulation of law on the function of defense in criminal proceedings 3.1.1. History of formation and development of defense function in Vietnam's criminal procedure 14 In the early stages, the recognition and adjustment of legislation on the function of defense in the administrative procedures are very weak. The content of pleading is generally prescribed in legal documents such as Laws, Decrees, etc. However, the legal provisions on defense are few and not specific, only general provisions on the lawyer has the right to defend and the defendant has the right to defend himself. 3.1.1.1 Regulation on showing the function of defense in Vietnam's criminal procedure in the period of 1945-1987 3.1.1.2 Regulation on showing the function of defense in Vietnam's criminal procedure in the period of 1988-2003 3.1.1.3 Regulation on showing the function of defense in the Criminal Procedure Code 2003 3.1.1.4. The regulation demonstrates the defense function in the Criminal Procedure Code 2015 The 2015 Criminal Procedure Code added a new chapter (chapter V) that provides content related to defense to ensure defense counsel's quick access to the process of resolving a case. Concretizing the provisions of the 2013 Constitution and in order to create favorable conditions for the accused to exercise the right to defense, the CrPC has provided some new contents in 2015. a. Provisions on showing the function of defense in the stages of prosecution, investigation and prosecution * Time of participating in NBC's proceedings * NBC's registered defense activities In order to participate in the proceedings in criminal cases, to protect the legitimate rights and interests of accused, accused and defendants, NBC must register to defend in every case. This is a new provision of the CrPC of 2015, replacing the old one which is the procedure for granting a defense counsel certificate. The CrPC 2015 requires that, when registering a defense, defense counsels must produce required documents such as a lawyer card, lawyer request letter, etc. At the request of the accused, their representatives and relatives of the accused for inviting defense counsels, the investigating bodies, procuracies and courts shall have to ensure that they have their right to offer a defense. * Defense activities of defense counsels: 15 - Activities of meeting with accused persons of defense counsels: According to Article 80 of the CrPC, defense counsel is allowed to meet and ask arrestees, detainees, suspects and defendants who are being held in detention at any stage of the proceedings and unlimited the number of meetings. defense counsel is allowed to actively discuss matters related to its clients in the custody conditions of detention facilities without being obliged to be present to the procedure conductors. In order to meet arrestees, detainees, suspects, defendants in detention, defense counsel must present a written notice of the defense counsels of the procedure-conducting competent agency, the lawyer card or the assistance card. legal or identity card or citizen ID card. After finishing the interrogation, defense counsel has the right to ask its clients. This questioning is completely active from defense counsel. defense counsel can ask questions related to the client and the behavior the client has committed in the case ... - Regulation on changing or canceling preventive and coercive measures: When finding that the accused or defendants meet all conditions for changing or canceling preventive or coercive measures, defense counsel will propose to the competent authority to propose changes or cancellation of measures being applied to the accused and defendants. For example, it is recommended to change detention prevention measures to other less strict measures such as banning from residence, bail, deposit to ensure ... - Regulation on requesting summons of witnesses, other participants in legal proceedings and competent procedural persons: When necessary to clarify matters related to accused persons, defense counsels may request convene witnesses, other participants in legal proceedings and competent procedural persons. defense counsel only proposed to summon the above subjects when their testimony was in favor of the accused and defendants and in favor of the defense and defense of defense counsels. - Activities of collecting, examining and evaluating evidences and proposing competent procedural authorities to collect evidences: When performing the task of protecting the legitimate rights and interests of the accused and defendants; defense counsel may discover new documents, new evidence that has not been discovered by the proceeding agency. In this case, defense counsel has the right to collect, inspect, evaluate evidence 16 or request competent procedural authorities to collect evidences, when such documents and objects are beneficial to the accused and do not. worsening the suspect's condition. For example, it is evidence proving the innocence of the accused or extenuating circumstances of the criminal liability of the accused, which the procedure-conducting agency has not shown in the case file. - Read, take notes, copy documents in case files: * Self-defense activities of accused persons: Persons accused of carrying out self-defense and protection activities through the powers provided for in the CrPC. The CrPC 2015 has been revised compared to the 2003 CrPC, not only providing more specific and clear provisions but also extending the rights of accused persons, helping to ensure fairness in the enforcement of criminal law. b. Regulations that demonstrate the defense function during the trial period Compared to the CrPC, 2003, the CrPC 2015 recognizes the equal rights of the NBC with participants in litigation at the trial in more detail. The Court is responsible for creating conditions for procurators, defendants, NBC, and other participants in legal proceedings to fully exercise their rights and obligations, and to democratically and fairly conduct disputes before the Court. According to the provisions of the CrPC 2015, the authority and position of NBC in litigation at the trial is enhanced, NBC has the right to equal with the Procuracy representative in presenting evidence, documents and requests. The trial panel must listen and acknowledge all opinions of procurators, defendants, defense counsels and participants in oral arguments in order to assess objectively and comprehensively the truth of the case. In case of not accepting the opinions of the participants in the trial, the trial panels must clearly state the reasons and be inscribed in the judgments ". 3.1.2. Functions of defense in criminal procedure law of some countries in the world and experience for Vietnam Functions on the defense of criminal procedure laws of the Federal Republic of Germany Functions to defend in the criminal procedure law of the United States The defense function in China's criminal procedure law 17 Experience with Vietnam 3.2. Practical performance of defense functions in criminal proceedings 3.2.1. Situation of accused persons and defense counsels participating in defense cases in criminal cases In fact, for various reasons, accused people often perform their own right to defend, not ask defense counsel to defend themselves. Table 3.1: Number of cases involving defense counsels at the first instance trial Year Total number of first- instance trial cases Number of cases involving defense counsels Ratio % Number of cases without defense counsels Ratio % 2009 60.433 6.303 10.4% 54.130 89,6% 2010 51.705 4.783 9,2% 46.922 90,8% 2011 57.009 4.480 7,8% 52.529 92,2% 2012 65.974 5.195 7,8% 60.779 92,2% 2013 67.153 5.001 7,4% 62.152 92,6% 2014 66.676 4.554 6,8% 62.122 93,2% 2015 59.866 3.808 6,3% 56.058 93,7% 2016 61.918 4.173 6,7% 57.745 93,3% 2017 57.872 4.050 7.0% 53.822 93% 2018 58.587 5.611 9,5% 52.976 90,5% The first 6 months of 2019 26.846 2.550 9,4% 24.296 90,6% (Source: Supreme People's Court) *The situation of lawyers who are invited and appointed to participate in the defense of criminal cases In recent years, the number of lawyers invited by clients to defend against the number of appointed lawyers has increased, accounting for a higher proportion than the number of defense lawyers appointed. This shows that the need for lawyers to defend the accused is increasing, confirming the role and legal status of defense counsel in general and 18 lawyers in particular in criminal proceedings. The increasing charge of invit