Justice and expression of justice in constitutions of Vietnam

 Justice is a concept with a very dynamic connotation. The

thesis has introduced the concept of Justice, at the same time, focused

on analyzing and clarifying the socio-economic basis, basic elements,

characteristics, applications and existence forms of Justice. In

addition, the process of forming and developing ideas and Justice

theory in Vietnam are also studied and analyzed for clarification

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luation of the research work 1.2.1. Achievements Initially there is consistency in the roles; essential elements, basic characteristics and forms of existence of Justice; partly analyzing the expression of Justice in the Constitutions, especially the role of the courts in Justice protection and at the same proposing a number of solutions to promote and protect Justice. 1.2.2. Further research The research work has not clarified the general and specific nature of the concept of Justice; has not fully and thoroughly assessed the role of Justice in revolutionary policies; aspects of Justice expression in basic institutions of the constitutions, especially the Constitution 2013, have not been fully studied; not clarifying the role of People's Courts as the branch of power to perform the task of Justice protection; not fully analyzing the status of Justice protection through judicial activities; solutions to Justice promotion and protection have not yet been completed. 6 1.3. Theoretical basis and research method 1.3.1. Theoretical basis How are the concept, components, characteristics and forms of Justice clarified? The role of the constitution and the Justice expression in the institutions of the constitution? Current situation of Justice expression in some basic institutions of the constitution and practices of Justice protection through the courts’ activities in Vietnam? What are directions and solutions to complete the constitutional institutions in the Justice expression? Hypotheses in the research work: Justice is an essential value in society; The reality of Justice expression and promotion the Justice values of the constitution of Vietnam still has a number of weaknesses; It is necessary to continue to improve the Constitution to promote and protect Justice. Aristoste's Theory of Justice is used for the research. 4. Methodology and Research Methods Dialectical materialism and historical materialism and some research methods such as systematic method, analysis and synthesis methods, etc. 7 CHAPTER 2. THEORETICAL ISSUES OF JUSTICE AND THE EXPRESSION OF JUSTICE IN THE CONSTITUTIONS 2.1. Definition “Justice is a social value that helps members in a community cooperate and develop and is a moral basis for the State to organize, manage the society and the courts to resolve conflicts, disputes, create stability and social order”. 2.2. Socio-economic basis, essential elements, basic characteristics and classification of justice 2.2.1. The socio-economic basis for the formation of justice is the existence of the right to private ownership and social classification, differences and inequality among members in the community. 2.2.2. Essential elements The first way expresses that Justice has three components: towards others, obligations and rights and equality. The second way is that Justice includes four basic aspects: "Desert", "Fairness", "Equality" and "Moral Integrity". 2.2.3. Basic characteristics of justice Firstly, Justice is a basic value of a civilized society. In primitive societies, conflicts were resolved based on "violence". When the society develops, individuals must cooperate together to give solutions to such conflicts instead of making decisions on their own. Social order must be established on the basis of stability, peace and Justice. Secondly, Justice is a mutually educational virtue. Justice has a responsibility to instruct people in their relationship with others and 8 is deeply educational to help each individual to control their behavior well. Thirdly, Justice is a mechanism of social organization and management, a mechanism to control power. Justice is a contradiction settlement mechanism, a fundamental value for social management, against the abuse of state power. Fourthly, Justice is a deeply institutional and political social virtue. The legitimacy of a government are often judged through whether it recognizes, protects and guarantees the implementation of Justice. Fifthly, Justice has a close relationship with the law, is the foundation for promulgating policies and laws. Sixthly, Justice is always associated with the requirement of fair judgement of the courts, an intellectual and reasonable decision by a third party giving solutions to resolve disputes. Seventhly, Justice requires a close combination between Desert and Title. Justice requires everyone to be in the right position, that is the combination of the worthiness and the recognition of the law. Eighthly, Justice requires fairness in voluntary transactions and cooperation. Ninthly, Justice is always associated with the requirement to respect human dignity and rights, a fair and public trial by the courts. Tenthly, the connotation of Justice is class type. Because Justice has a close relationship with political consciousness, in a class society, the ruling class will take measures to determine social values, including values of Justice. Eleventhly, Justice has a close relationship with social Justice. In one aspect, distribution Justice is a mechanism of social Justice. 9 2.2.4. Classification of justice There are many ways of classification, of which, most popular way is to classify Justice into "Distribution Justice" and "Correction Justice". The theory of Justice means fairness in distribution which give many distribution mechanisms such as Aristoste's "purposeful" method, "the greatest happiness for the great number" of Utilitarianism ... The theory of corrective justice develops the relationship between crime and punishment from the principle of "reciprocal exchange", into the principle of "Social happiness" of Utilitarianism and the principle of "human freedom" by Immanuel Kant and John Rawls. 2.3. Formation, ideology and theory of justice in Vietnam In Vietnam, Justice has been developed from "private retaliation" to a "pecuniary compensation" regime and finally criminal sanctions. On the basis of Confucian value, conventions, community solidarity and village consciousness, the concept of Justice has nature of "harmony" in accordance with the spirit of mutual friendship and love of the nation. In People's Revolutionary State, the nature of Justice has been added and completed through many stages. In the period of 1945, the concept of Justice is of natural law. In 1946, Justice is attached closely to the requirement of respecting the law to ensure personal freedom. Since 1950, the nature of Justice is "elimination of all forms of exploitation between people". Since 1960, Justice has focused on collective values. Since 1986, Justice has been recognized and reaffirmed strongly and in the Constitution 2013, Justice was firstly 10 identified. Thus, the concept of Justice in Vietnam is profoundly classy and mainly focuses on judicial activities. 2.4. The role of the constitution and justice expression in the constitutions 2.4.1. The role of the constitution (i) The Constitution opens up a period of historical development of a nation and is a symbol of independence, (ii) The Constitution declares the fundamental values as the basis for the realization of (iii) the Constitution serves as the foundation of state power and legal order. 2.4.2. Justice expression in the constitution Firstly, the declaration of justice is a common value of the community. Secondly, to ensure human rights, civil rights, especially fair judgement right. Thirdly, establishing a free and equal economy and a distribution mechanism to ensure social Justice. Fourthly, establish the rule-by-law government model, optimal model to promote the Justice values. Fifthly, establish judicial power and the Courts as the central institution to Justice protection. Sixthly, establishing a constitutional protection mechanism, thereby contributing to the Justice protection at highest political level. 11 CHAPTER 3. REALITY OF JUSTICE EXPRESSION IN THE CONSTITUTIONS AND PRACTICE OF JUSTICE PROTECTION IN VIETNAM 3.1. Reality of justice expression in the Constitutions 3.1.1. The Constitution identifies and declares justice as a fundamental value of the Vietnamese social community. "Justice" was firstly identified in Clause 3, Article 102 of the Constitution 2013, and indirectly declares the role of the fundamental value of Justice in the organization and social management. 3.1.2. The Constitution affirms justice and then righteousness of the revolution for power, and at the same time contributing to strengthening legitimate role of the Vietnamese Communist Party as “the force leading the State and society" in Clause 1 of Article 4 of the Constitution 2013. 3.1.3. The Constitution protects human rights, civil rights, especially right of equality before the courts; fair and open trial by the courts; right to be presumed innocent, not to be compelled to testify against oneself. 3.1.4. Justice requires the Constitution to establish a socialist state ruled by law - a model of state organization that emphasizes equality values, especially equality between the state and individuals, is the optimal mechanism to promote and protect the justice values. 3.1.5. The Constitution establishes the basic mechanism of fair distribution justice through the institution of a socialist-oriented market economy. 3.1.6. The Constitution establishes institutions on the National Assembly and the Government, agencies that promote Justice values at macro level, through policies, basic functions such as 12 promulgating, organizing the implementation of the Constitution, laws; supreme supervision over compliance with the Constitution, laws and deciding of important issues of the country. 3.1.7. The Constitution establishes judicial power and assign the Courts tasks of justice protection, and at the same time, assign People's Procuracy tasks of exercising prosecution rights and administering judicial activities The Constitution 2013 officially identified "justice protection" as top and cross-cutting task of the People's Court, and at the same time establishing independent judicial rights, strictly regulating procedural principles, professional principles, integrity requirements as well as constitutionalise “adversary” is the judicial principle of the courts. The Constitution assigns the People’s Procuracy to exercise the power to prosecute and supervise judicial activities in order to ensure the rule of law, fairness and objectivity, combating errors, arbitrary, abuse of power, ensuring the accuracy of both substantive justice and procedural justice in judicial activities. 3.1.8. The Constitution establishes the fundamental and supreme law position of the constitution and establishes a constitutional protection mechanism with the provisions "All violations of the Constitution shall be dealt with" and "The mechanism do defend the Constitution shall be prescribed by a law". 3.2. Reality of justice protection in Vietnam 3.2.1. The reality of jurisdiction of the courts Over the past time, the refusal of the courts is quite arbitrary. The judicial action of the courts depends very much on written laws. "The Judges and People's Assessors are independent and shall obey only the law", that is, the courts only accepts cases of disputes when 13 there is a law for that relationship. On the basis of the Constitution 2013, these shortcomings have been gradually overcome with the permission to apply custom or similar application of law, precedent, and fairness. 3.2.2. The status of accuracy in judgment of the courts The number of cases that are overdue by the law due to subjective errors, typically 156 cases (0.04%) in 2014, 144 cases (0.03%) in 2015, and 67 cases in 2016 (0, 02%). The number of cases of unclear judgements is still quite large, in 2014 it was 560 cases (0.14%), in 2015 it was 295 cases (0.07%). The number of cases that have to be re-judged under cassation and retrial has tended to decrease, but still exist. In 05 years, it has accepted 35,556 applications for cassation and retrial, resolving 30,774 cases, reaching 86.5%, of which, responding to parties without protest grounds with 20,665 cases, with protest under cassation and retrial 4,394 cases. There has 05 cases and 3 cases of wrong judgement in 2006- 2010, and 2011-2015 respectively. In 05 years, the rate of judgments and decisions being canceled due to subjective errors by judges is 0.8% (decreased by 0.4% compared to the previous term), canceled due to subjective errors is 0.95% (reduced 0.85% over the previous term). The Justice of the trials have been improved, the percentage of sentences canceled and corrected due to subjective errors tends to decrease, specifically, in 2011 it was 2.14%, in 2012 it was 1.83%, in 2013 was 1, 71%, in 2014 it was 1.61% and in 2015 it was 1.35%, in 2016 it was 1.27% and in 2017 it was 1.3%. 3.2.3. Current state of social perception 14 The Government Inspectorate's anti-corruption report found that nearly 40% rated the level of corruption in the courts and the prosecution as common, 17% said they used other means, because of corruption in the courts are too high. The Development Outlook Report by the Ministry of Planning and Investment shows that judicial independence in Vietnam ranks low due to its heavy dependence on other institutions and due to political and administrative pressures... The Vietnam Lawyers Association' Justice Index report notes that due to lack of trust in state institutions, a very small percentage of people request resolution of civil disputes, only 3.3%. The World Bank's Business Report ranking of world Economies evaluates the performance of contracts through dispute resolution by courts in Vietnam, ranking 69 out of 190 economies. The World Justice Project's Justice Index report shows that up to 7% of cases will use violence to resolve and only 9% will seek help from the government or a third party. The report on the Rule of law index of the World Justice Project showed that Vietnam's rule of law index reached 50/100, ranked 74/113 countries, of which the civil Justice index was at weak level 44/100, ranked 92/113 countries and the criminal Justice index was at weak level at 49/100, ranked 52/113 countries. 15 CHAPTER 4. VIEWPOINTS AND SOLUTIONS TO JUSTICE PROMOTION AND PROTECTION IN VIETNAM TODAY 4.1. Requirement on justice promotion and protection 4.1.1. Requirement on building rule-of-law State Building an orderly and stable society on the basis of law and justice In order to ensure social order and stability, the Constitution and statutes must have the supreme position in regulating relations in all fields of social life. Therefore, the judicial capacity and efficiency of the courts - directly to protect Justice, effectiveness and the strength of the law need to be further focused on improving. Requirements for ensuring human rights, civil rights and dignity. Ensuring Justice is also an aspect of human rights, citizenship and dignity, especially from the perspective of equal legal status, on the implementation of obligations such as benefits in distribution, enjoyment, fair trial opportunities to ensure both procedural justice and substantive justice. Construction of clean and strong judiciary One of the important characteristics of a socialist rule-of-law State is the existence of an independent, integrity, fair and effective judicial system that effectively protects Justice. Therefore, judicial activities that focus on judicial activities of the courts must be conducted efficiently and effectively. 4.1.2. Requirement of completing market economy with socialist orientation and international integration Requirement to complete the market economy with socialist orientation The State creates a favorable, equal, cooperative investment and business environment, and at the same time, establishes the basic 16 principles of distribution justice to ensure fairness in enjoying the achievements of economic growth. International integration Vietnam needs to be proactive and ready to prepare the necessary conditions to ensure international integration profoundly, especially the serious and responsible implementation of international standards, including standards about justice promotion and protection. 4.1.3. Current status of Justice protection Requirements for strengthening leadership of the Communist Party of Vietnam The risk of decrease of the Vietnam Communist Party 's ruling legitimacy still exists and is one of the most challenging issues that challenge the leadership of the Party. One of the shortcomings in the Party's leadership is the weak use of power to promote and protect Justice. Shortcomings and limitations exist in a number of constitutional institutions and the recent practice of justice protection activities. Shortcomings and limitations in a number of institutions of the Constitution 2013 include: The value of Justice is indirectly reflected through the provisions of the People's Courts or some policies on equality, social equality; The recognition of the Justice of the Constitution in Chapter VIII on People's Courts, the People's Procuracies has made the values of Justice to be collected in a narrow range, merely a "judicial value" of the judiciary; The initiative from citizens to participate in promoting and protecting the values of Justice has not been focused properly; The right to access Justice has not been officially recognized as a basic right; The content, scope and 17 modes of control activities among agencies exercising legislative, executive and judicial powers have not been clarified, potentially risk of violating Justice values; There is still too much emphasis on the key role of the state economy, creating inequality Justice in cooperation, exchange and competition among economic sectors; The basic principles of distribution Justice have not been clearly shown; The values of Justice need to be more clearly reflected in the legislative and executive powers; Regulations on judicial independence need to continue to be studied and recognized more thoroughly; The constitutional defense mechanism remains unsolved. Shortcomings and limitations in Justice protection practices include: The situation of overdue cases to be resolved in accordance with regulations due to subjective errors has not been completely overcome; The number of types of cases and petitions for cassation and retrial that the courts has to accept and resolve is still very large, the number of unresolved applications is still large; People's confidence in the courts' judgments and decisions is not high; And the case of wrong conviction of innocent persons; The proportion of judgments, decisions canceled and corrected due to subjective errors has not been decreased sharply. In some cases, the appeal courts has corrected first-instance judgments and decisions without reasonable grounds; The judges still have limited capacity, qualifications and professional skills; responsibility; carelessness; Some judges also have individualism and show their lack of improvement professional ethics and good behaviors; In administrative proceedings, the judges are very limited in knowledge of socio-economic management and also show signs of conflict fear. 4.2. Viewpoints of justice promotion and protection 18 4.2.1. Strengthening and maintaining the leadership of the Vietnam communist Party The measures to improve the effectiveness of the Justice protection activities must ensure the Party's s leadership in accordance with the country's conditions in each period, maintain political stability and the nature of socialist rule-of-laws state. 4.2.2. Synchronous and appropriate route and steps Justice promotion and protection is an important, urgent and long-term task so that solutions to justice promotion and protection must be prudent and focused, ensuring a specific and planned roadmap and sufficient conditions to ensure appropriate steps. 4.2.3. Learning international experience combined with traditional legal inheritance of the country Learning international experience Ensuring to learn human achievements and experience in accordance with Vietnamese practical conditions and international integration. Inheriting the legal tradition of Vietnam In the process of acquiring and choosing world experiences, it is necessary to pay full attention to factors of culture, traditions of local law such as the relationship between morality, ethics and law or custom that the law of the state is independent factor. 4.3. Solutions to the justice promotion and protection 4.3.1. The group of solutions to improve the Vietnam Communist Party’s leadership effectiveness in completing theories and implementation of justice promotion policies. Firstly, justice promotion and protection needs to be definitively affirmed as an important constituent part in the leadership of the Party. On that basis, it should supplement and 19 recognize Justice as a typical value of democracy and social progress in paragraph 2, Clause 1, Part IV, Guidelines of building a country in transition to socialism (as amended and supplemented in 2011). Secondly, reports on political affairs, socio-economic development plans, resolutions, directives and other important documents of the Party should continue to focus on implementing the values of Justice, especially in the process of perfecting the rule-of- law state and the socialist-oriented economy. Thirdly, along with guidelines of juridical reform since 2002 to the present, with the issuance of Resolution No. 08-NQ/TW and Resolution No. 49-NQ/TW with a roadmap to 2020, it is necessary to continue the implementation of the juridical reforms as well as providing breakthrough directions in this field for the period until 2030. Fourthly, the leaders completes the theory of Justice in socialist rule-of-law State with a number of basic contents as follows: Promoting research, progress to unify the concept of Justice awareness; correctly identifying the position and role of Justice in socialist rule-of-law State; correctly defining the relationship between Justice, natural law and positive law; being aware of the role of laws. Fifthly, improving the efficiency of the organization and implementation of the Party's leadership, including: Organizing, applying, setting goals, directions and measures to seriously implement advocates and resolutions of the Party on justice promotion and protection; Strongly promoting the role, initiative, creativity and responsibility of other organizations of the political system in implementing the Party's guidelines of justice promotion and protection; instructing political ideology for public employees, 20 party members and the masses of people in implementing the Party's guideline of justice promotion and protection. 4.3.2. Solutions for completing the institutions of the Constitution 2013 on justice and justice protection - Solutions for completing a number of institutions of the Constitution 2013 Firstly, Justice should be directly recognized in the Premable or in Chapter I on Constitutional Political System. Secondly, continuing to develop the viewpoint of a socialist rule-of-law state for the sake of benefits of its people. Proposing to continue to maintain Article 2 Chapter I. Constitutional Political System 2013. Thirdly, continuing to clarify the content, scope, mode and object of power control in the Constitution 2013 in Clause 3, Article 2, Chapter I of the Constitutional Political System 2013. Fourthly, it is necessary to affirm that the right to access Justice is a fundamental human right in Clause 1, Article 31, Chapter II of the Constitution 2013. Fifthly, there is need to supplement that the private economy is an important driving force of the economy in Clause 1 Article 51 Chapter 3 on Economy, society, culture, education, science, technology and environment in the Constitution 2013, at the same time it is necessary to clarify the basic principles of distribution Justice in society. Sixthly, continuing to research and proceed to establish an independent, specialized constitutional protection organization in the socialist political-legal system of Vietnam. Seventhly,

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