Tóm tắt Luận văn Public prosecution function in criminal procedure in Vietnam and Germany

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 13 "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 14 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 15 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. 16 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 17 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 18 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 19 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 22 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 23 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 26 "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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