Thirdly, in the stage of prosecution and adjudication of
criminal cases, the German CPC shows a degree of integration of the
"adversarial elements" more clearly than the CPC 2015. Analysis
from the mechanism of practicing prosecution rights during the trial
period, especially in question /interrogation at the trial, prosecutors
from Europe were given a more flexible mechanism, a "more
objective" position than their Vietnamese counterparts. The presiding
judge will not take the active role in question/interrogation which
belongs to the parties. Meanwhile, in Vietnam, although there have
been many innovations to ensure a harmonious combination between
the inquisitorial model and the adversarial model, ensuring the
adversary principle at trial, however the active role of the Presiding
Judge in questioning is still clearer than the Presiding Judge in
Germany.
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tive, influential social phenomenon to
social order. That is the field of CP. Based on the above argument, we
believe that PPF has objects that are criminals and offenders.
1.2.2.2. Characteristics on subjects of the prosecution function
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"Prosecution is an indispensable feature of modern judicial
administration" and the formation of a function, on behalf of the State,
to detect and accuse criminals and offenders is derived primarily from
the development of the concept of state - when criminal acts are no
longer a personal matter and maintaining public order takes
precedence. Therefore, the subject of PPF has a high uniformity in the
science as well as the practice of CP. The PPF is the function of a
state-mandated institution that condemns criminals and offenders
(PPS). Depending on the procedural tradition, the scope of PPF given
to the prosecution institution varies and such systems shall be
organised as Procuracies or Prosecution Services.
1.2.2.3. Characteristics on the scope of the prosecution function
Stemming from the nature of PPF, it is a function on behalf of
the state to make accusations against offenders, it is possible to state
that PPF only arises in the field of criminal procedure. Researching the
scope of PPF also serves to determine when this function arises. PPF
starts from the time the crime is committed and ends when the
sentence takes legal effect.
1.2.2.4. Characteristics on content of prosecutor functions
PPF, in addition to the accusation, also includes prosecution
of offenders and criminals before the Court. PPS carries out the
prosecution of the offender before the Court with indictment or
prosecution decision. This content is also the basis for the
implementation of an important content of PPF in the next stage - the
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trial phase. It is defending the charge at a trial where the case is
brought to trial.
1.2.3. Definition of prosecution function and the
relationship between the Procuracy's prosecution function and other
subject's functions
1.2.3.1. Definition of prosecution function
In order to build a correct definition of PPF, it is necessary to
ensure the following requirements: (1) build the concept of PPF on the
basis of inner function, general characteristics of functional concepts
(from the perspective of terms, functionalism); (2) developing notion
of PPF on the basis of a proper understanding of prosecution rights, in
particular, it is necessary to identify the characteristics of the PPF in
terms of its object, subject, scope and content. We boldly define the
definition of PPF as follows: the prosecution function is a major
aspect of the prosecution's office [Procuracy/Prosecutor], arising
immediately when the crime occurred and ending when the case is
resolved by a judgment or decision of a competent authority, in the
name of the state, to detect crimes, to bring charges, to prosecute
offenders before the Court and to protect such charges at the trial, for
the sake of the public, agencies, organizations and individuals.
1.2.3.2. The relationship between the procuratorial function
of the Procuracy and several functions of other subjects
a. The relationship between the function of prosecution and
the function of controlling judicial activities in criminal proceedings
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Firstly, PPF and the function of controlling judicial activities
(JCF) in the CP are constitutional functions and given to the Procuracy.
Second, PPF arises as soon as the crime is committed. Unlike
PPF, JCF arises only when there are acts of exercising prosecution
rights of procedure-conducting agencies. In other words, in practice,
controlling judicial activities and exercising prosecution rights can be
considered similar in time.
PPF ends when the sentence declares to be legally effective
(and not protested) or the case is suspended by the competent authority.
The JCF closes when punishment is executed.
Thirdly, prosecution and control of judicial activities in
Vietnam Criminal Procedure have a close relationship. Procuring
judicial activities is one of the supervisory activities to ensure the
investigation, adjudication and judgement execution legally and
objectively.
b. The relationship between the prosecution function and the
adjudication function of the Court
Judicial function is the assessment and delimitation of the
results of the accused function (PPF) and the function of defense,
which is decisive for the case. As author Le Tien Chau affirmed, the
judicial function has an important position in ensuring the criminal
proceedings to be operated in accordance with the law to reach the
ultimate goal of CP. Judicial function is considered as a central
function, playing a decisive role in the CP.
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c. The relationship between the prosecution's function and the
defendant's defense function
The relationship between CP and defense functions is the
relationship between two opposing sides. If the purpose of PPF is to
protect the public interest, the interests of the State and individuals
through detecting criminals and making accusations against offenders,
the purpose of the defense function is to give accused persons the
opportunity to protect their legitimate interests in the course of
proceedings, and assist them in defending against accusations by the
accused party. That function reflects an objective requirement of the
principle of "fairness between parties".
d. The relationship between the prosecution function and the
investigating function of the Investigation Agency
Investigations and prosecution are two independent activities,
but closely linked because they have the same purpose of proving
criminals. In particular, investigative activities are activities that
support activities of charges (prosecution). The outcome of an
investigation is a basis for a grounded and legal charge. In other words,
the relationship between the investigative function and the PPF should
not be a mere relationship between the main and auxiliary functions.
Putting this relationship in reference to the purpose and model of CP,
it can be seen that the investigation function is of supporting function
to PPF. PPF makes use of the results of the investigation function.
Chapter 2
PUBLIC PROSECUTION FUNCTION
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IN CRIMINAL PROCEDURE IN VIETNAM AND GERMANY
2.1. General overview of criminal procedure in Vietnam
and Germany
2.1.1. Overview of Vietnam's criminal procedure
The current model of CP in Vietnam is an integrated model
that is prone to interrogation, although, during the development
process, it has absorbed some of the core of adversarial model in
conformity with economic-scocial development. The CP Code 2015
was born with many innovations, but the characteristics of the CP
model are still reflected in the basic points, namely: (1) CP of
Vietnam does not consider criminal case as a legal disputes/conflicts
between the parties; (2) Vietnam CP aims to find the objective truth
of the incident; (3) Vietnam CP divides the process of resolving the
case into procedural stages; (4) Stemming from the objective of
determining the facts of the case, Vietnam CP divides the procedural
subjects into two categories: procedure - conducting agencies and
procedural participants.
2.1.2. Overview of the German criminal procedure
The German legal system is part of the continental European
family, basically belong to the system of Civil law. The German CP
model is basically the model of inquisitorial system. Over time,
along with the mutual learning tendency among procedural models,
the German model of the CP is associated with a number of
adversarial features and has been described as a mixed system.
Therefore, the German Criminal proceedings promotes the role of
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interrogation measures in investigating activities, using the main
principle of compulsory prosecution, direct examination and
evaluation of evidence at the trial but still ensure the role of fair
participation in the proceedings between the accused and the defence
counsel in the process of seeking the truth of the case.
2.2. Similarities in prosecution function in Vietnamese and
German criminal procedure law
2.2.1. Similarities in the subjects, objects and scope of the prosecution
function
2.2.1.1. Similarities in the subject matter of the prosecution
function
It is easy to see that the scholars of the two countries have a
completely similar understanding about the subject of PPF. This is
manifested simultaneously in practical law as well as scientific
research.
2.2.1.2. Similarities in the object matter of the prosecution
function
The subject of PPF is a matter of high consensus in scientific
theory of this function. The CP in Vietnam and Germany both
empowered this important function to the PPS. In Vietnam, it is the
system of the People's Procuracy, in Germany, it is the system of
Public Prosecution Services.
2.2.1.3. Similarities in the scope of the prosecution function
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In CP of Vietnam and Germany, PPF does not arise in the
field other than the criminal proceedings and arises as soon as the
criminal acts occur and ends when the legally effective judgments or
decisions of the Court or other procedural decisions of competent
agencies.
2.2.2. Similarities in the content of the prosecution's function
PPF, in addition to the accusation, also includes prosecution of
offenders and criminals before the Court and protect such
prosecution. In order to further study the similarities (and differences)
in the content of PPF in CP in Vietnam and Germany, the author
conducted a study of the content of PPF on the basis of analyzing
some of the following contents: (1) similarities in the competence of
the PPS in the stage of initiating and investigating criminal cases; (2)
Similarities in the competence of the PPS in the prosecuting stage; (3)
Similarities in the competence of the PPS in the adjudication stage.
2.2.2.1. Similarities in the authority of the Prosecuting Agency
in the stage of initiation and investigation
PPS, by its nature, is an institution authorized by the State, on
behalf of the State, to make charges against criminals and offenders.
At the stage of initiation, investigation of criminal cases, information
on criminals has become increasingly clear through the collection of
evidences, marked by investigation conclusions of competent
agencies. In this phase, the similarities of PPF is codified into the
similarities in specific powers, including: (1) Powers in receiving
and resolving information, reporting on crimes commit; (2) Powers
20
to initiate prosecution; (3) Powers over measures to restrict human
rights and civil rights; (4) Powers to investigate and conclude
investigation.
2.2.2.2. Similarities in the authority of the Prosecutor during
the prosecution period
The principle of prosecution in CP applied by both countries is
the compulsory prosecution principle. The compulsory prosecution
principle in the CP, can be understood that, the PPS does not and has
no right to consider the decision to prosecute. The role of the PPS is
limited by legal evaluation of evidences in determining whether or
not it commits a crime.
2.2.2.3. Similarities in the jurisdiction of the Prosecuting
Agency during the trial period
The CPL of the two countries recognizes the great similarity to
the power of the PPS in the adjudication stage. In both countries, the
trial (after the opening procedures) shall start with the declaration of
the indictment (Article 306 of the CPC 2015, Article 243(3) of the
German CPC). Next, the content of the PPF in the trial phase is
clearly shown through the authority to interrogation and debate at the
trial. Procurators /Prosecutors carry out these proceedings for the
thoroughness purpose to affirm that the previous charge was
grounded, of the right person, in accordance with the law or in
making procedural decisions based on evidence publicly evaluation
at the trial.
21
2.3. Differences in the function of the prosecution in
criminal procedure law of Vietnam and Germany
2.3.1. Differences in the object, subject, and scope of the
prosecution function
The two countries noted the difference in the practice of CP
enforcement on PPF. There are types of crimes which are objects of
PPF in the German CP (minor crimes) but not the objects of the CP
in Vietnam because according to Vietnamese law, those “offenses”
are handled by administrative agencies.
The subjects of PPF in the two countries are given to the PPS.
Therefore, in respect of nature, the two countries' regulations on the
subject of PPF are not different: PPF is only authorized by the State
to an prosecuting agency system. In Vietnam, PPF is a constitutional
function - the supreme assertion of the State about the authorization
of the Procuracy system. However, when approaching from a
practical perspective on the subject of implementation of PPF and
the relationship between these subjects, especially the relationship
between the PPS and the investigating agencies, the differences in
the CPL of the two countries are obvious and cearly in legislative
thinking [in the CPC].
2.3.2. Differences in the content of the prosecution function
2.3.2.1. Differences in the content of the prosecution functions
during the stage of criminal initiation and investigation
If the content similarity of the PPF in the criminal initiation
and investigation is in the "decisive role" of the PPS, then the content
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differences of this function in these stages lies in the "active role" of
the PPS to investigating activities. The activeness of PPS in
investigating activities of the two countries is markedly different.
While in Germany, the PPS has an exclusive role to issue
criminal charges, in Vietnam, the active role in launching
prosecutions is recorded for the investigating agencies.
Regarding the authority to end the investigation, the difference
can be said to be completely opposite in CP legislation of the two
countries. In Germany, the legislator only grants the right to end
investigation to the PPS. In contrast, the CPC 2015 clearly defined
the active role of investigating agencies in the investigation of
criminal cases, including the authority to end investigations.
Although the Procuracy is the competent authority to make a final
decision on suspending the investigation of the case or terminating
investigation activities, the active role of investigating bodies is still
recorded: “The investigation ends when The investigating bodies
issues an investigation conclusion report requesting prosecution or
issues an investigation conclusion report and a decision to suspend
the investigation”.
2.3.2.2. Differences in the content of prosecution functions
during the prosecution stage
The difference in jurisdiction of the PPS in the prosecution
period between Vietnam and Germany lies in the degree of
"discretionary prosecution" integrated and operated within the state
system. The degree of discretion in the prosecution decision of
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colleagues in Germany is officially recognized, while in Vietnam,
the principle of discretionary prosecution has not been recorded in
the CPC 2015.
2.3.2.3. Differences in the content of the prosecutor's functions
during the trial of criminal cases
Differences in the content of PPF in the adjudication stage
between the two countries lie in the "active role" of the PPS in the
stage of criminal case adjudication, especially in interrogation
regime at trials. Analysis of the prosecution practice mechanism
during the trial period, especially in the questioning / interrogation
regime at the trial, prosecutors/procurators from Europe are given
flexible mechanisms, more proactive than colleagues in Vietnam.
2.4. General assessment of similarities and differences of
prosecution functions in Vietnamese and German criminal
procedure law
2.4.1. General assessment of similarities should be further
recorded and developed
2.4.1.1. Similarities in the object, scope and subject of the
prosecution function should continue to be recorded and developed
The object and scope of PPF are two issues that show a great
similarity in Vietnam and Germany. The complete similarity in the
scientific and legislative awareness shows the general criminal
policy, the prosecution policies of the two countries have common
standards.
24
Similarity in terms of object, the scope of PPF in the two
countries has once again affirmed the CP theories and practices on
such issues. This also confirms the rightness of the prosecution's
opinion that only arises in the field (criminal procedure), which
clearly demonstrates the role of the State and State Agencies for the
function of maintaining order and social security.
After that, the high consensus in the theory of the subject of
PPF in the two countries affirmed the right direction of judicial
reform, reform of PPS in Vietnam with the model of inquisitorial
based system.
2.4.1.2. Similarities in the content of the prosecution function
should continue to be recorded and developed
Content similarities of PPF in the two countries lies in the
characteristics of the CP model. Vietnam and Germany, both
originate from the model of inquisitorial system, so although there
are differences in terms of investigation, prosecution and
adjudication regulations, however, the characteristics of this model is
still clearly shown in the Criminal Procedure Law of Vietnam and
Germany, especially goals of the CP and the method to achieve such
goals.
These similarities once again confirms the right view of the
State of reforming the model of criminale procedure. It is based on
practical review to substantially overcome the problems and
shortcomings of the current model; improve the effectiveness and
efficiency of criminal justice activities, and at the same time must
25
come from the reality of Vietnam, affirming the continued
maintenance and promotion of the inherent advantages in the current
Criminal Procedure Model; selectively absorb the rational cores of
the adversarial model in accordance with the specific cultural,
political, economic and social conditions of Vietnam.
2.4.2. General assessment of the differences of prosecution
functions in Germany and experiences for Vietnam
2.4.2.1. Differences in the object, subject and scope of the
prosecution functions in Germany and experiences for Vietnam
The difference [in the CP practices] in terms of object and
scope of the PPF does not stem from the implications of these two
issues, but from the connotations of the criminal concept and the
criminal classification of the two countries.
Differences from the inner meaning of the criminal concept
and the classification of crimes have led to a different reality in the
application of the CPL between Vietnam and Germany. There are
acts that are considered crimes and are objects of the German PPF.
However, those acts are not subject to the criminal prosecution of the
Vietnamese PPS. Differences contribute to a arising difference in an
important content of PPF - discretionary powers to prosecute.
Differences in the subject which implement PPF between the
two countries reflects a huge difference in the CP legislation,
specified by the provisions on the duties and powers of the PPS, the
Court, the investigation bodies and their mutual relationships during
criminal proceedings. The lawmakers in Germany demonstrates the
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"dominant" role of the PPS, which holds PPF. Meanwhile, the
legislators in Vietnam shows the "important role" of investigating
agencies. This difference is a lens that reflects the country's CP
practice.
2.4.2.2. Differences in the content of the prosecution functions
in Germany and experiences for Vietnam
Differences in content of PPF in the two countries are
reflected in three issues: (i) Prosecutorial responsibility in
investigating activities; (ii) Powers to measures to restrict human and
civil rights; (iii) Degree of integration of "adversarial elements" in
the stage of criminal prosecution and adjudication.
Firstly, the prosecution responsibility in investigating
activities demonstrates the relationship between the PPS and the
investigating agencies. In respect of the nature, prosecution
responsibilities show the relationship between the PPF and
investigative functions. In Germany, the PPS has an active and
decisive role in launching and ending the prosecution. Meanwhile, in
Vietnam, the PPS has a "decision" power over these authorities, but
the "active" role of investigating bodies is recognized in both the
legislative and CP practice.
Second, with regard to measures to restrict human rights and
civil rights, the differences between the two countries are also very
clear. In Vietnam, investigating bodies is empowered to take the
active role in applying measures to restrict human rights and civil
rights during the period of initiation, investigation of criminal cases.
27
Despite the fact that the Procuracy's have the right to approve or not.
Meanwhile, the fact that German lawmakers place responsibility on
the role of the Court system of jurisdiction over measures to restrict
human and civil rights is well-founded and worth learn from.
Thirdly, in the stage of prosecution and adjudication of
criminal cases, the German CPC shows a degree of integration of the
"adversarial elements" more clearly than the CPC 2015. Analysis
from the mechanism of practicing prosecution rights during the trial
period, especially in question /interrogation at the trial, prosecutors
from Europe were given a more flexible mechanism, a "more
objective" position than their Vietnamese counterparts. The presiding
judge will not take the active role in question/interrogation which
belongs to the parties. Meanwhile, in Vietnam, although there have
been many innovations to ensure a harmonious combination between
the inquisitorial model and the adversarial model, ensuring the
adversary principle at trial, however the active role of the Presiding
Judge in questioning is still clearer than the Presiding Judge in
Germany.
Chapter 3
SOLUTIONS TO IMPROVE THE EFFECTIVENESS OF
PUBLIC PROSECUTION FUNCTION IN CRIMINAL
PROCEDURE IN VIETNAM FROM GERMANY’S
EXPERIENCES
28
3.1. Requirements of solutions to improve the
effectiveness of prosecution functions in Vietnam's criminal
procedure
3.1.1. Thoroughly grasp the thought of organizing the
exercise of the Rule of law State power
3.1.2. Requirements of strengthening of adversarial
element in criminal proceedings, meeting the requirements of
judicial reform in the new situation
3.1.3. Requirements of Human rights assurance
3.1.4. Requirements of Feasibility
3.1.5. Requirements of International integration requirements
3.2. Solutions to improve the effectiveness of prosecution
functions in Vietnam's criminal procedure
3.2.1. Improving the criminal procedure law on prosecution functions
3.2.1.1. Completing the structure of the CPC of the
procedural subject
We propose to change the structure of the CPC 2015, by
providing for 01 Chapter with the name "Criminal Procedure
Subjects", which includes the provisions on the accused and defense
subjects, Courts and other subjects participating in the CP. The
content of this Chapter will replace Chapter III and Chapter IV of the
current CPC.
29
3.2.1.2. Perfecting the criminal procedure law to
strengthening prosecution responsibilities in investigating activities
It is necessary to research and improve the CPL in the
direction of giving the Procuracy the right authority, consistent with
the contents of the PPF that this system of agencies is assigned to
hold, specifically as follows:
(1) With regard to the authority to decide on the initiation
and termination of prosecution, it is necessary to amend the relevant
provisions of the CPC, the Law on Organization of the People's
Procuracy in 2014, in the direction that only PPS shall have powers
to decide prosecute criminal cases, prosecute suspects and suspend
cases.
(2) For investigative activities aimed at gathering evidence
and supporting prosecution activities without the act of initiating or
terminating prosecution (crime scene investigation, interrogation of
suspects, ...), investigating bodies has the right to take initiative.
However, the CPC should be improved in the direct
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