VIETNAM ACADEMY OF SOCIAL SCIENCES
GRADUATE ACADEMY OF SOCIAL SCIENCES

LE VAN QUYEN

Court of the first instance of criminal
cases of the provincial People's Court in
Southeast Vietnam nowadays

Major: Criminal Law and Criminal Procedure
Major code: 62.38.01.04

ABSTRACTTHESIS LAW DOCTORAL THESIS

Ha Noi - 2017


. PERFECT
WORKS ARE
.

GRADUATE ACADEMY OF SOCIAL SCIENCES

SCIENTIFIC ADVISORS: 1. DR. Tran Thi Quang Vinh
2. DR. Nguyen Van Diep

The first Scientifi critic:
Associate Professor Ph.D Trần Văn Độ
The second Scientifi critic:
Associate Professor Ph.D Cao Thị Oanh


Binh Duong, Binh Phuoc, and Ba Ria - Vung Tau. Corresponding to these
provinces and cities are established provincial People's Courts, with the
function of adjudicating criminal cases under the jurisdiction of the
provincial People's Courts. The report of the 10-year review of the
implementation of Resolution No. 49 of the Politburo on the Judicial
Reform Strategy up to 2020 of the People's Courts of the Southeastern
Provinces shows that: the activities of trial in general and trial of criminal
cases in particular of the provincial People's Courts in the Southeast region
has contributed to preserving political security, order and safety and
creating a stable environment for the socio-economic development in the
Southeast region. Specifically, according to the report of the trial activities
of the People's Courts of the Southeastern region, the criminal cases are
always increasing every year, the quality of trial activities in some courts
remains some issues to be concerned. The proceedings still lack of bases
or have errors that lead to the cancellation or modification of judgments.
This has affected the rights and legitimate interests of citizens, human
rights and affects the belief of the people in the system of judicial bodies in
the Southeastern provinces of our country.
The author has an awareness and desire to clarify the factors
affecting the quality of activities in court of the first instance of criminal
cases of the Provincial People's Courts in the Southeast of Vietnam. At the
1


same time, from theoretical and practical research, the author also
proposes solutions and recommendations to improve the quality of the
court of the first instance of criminal cases of the provincial people's court
in Southeast Vietnam. This will also meet the requirements of Resolution
No. 49-NQ/TW dated 02/6/2005 of the Politburo on the judicial reform
strategy of our country up to 2020.

6. Theoretical and practical significance of the thesis
6.1. Scientific significance
The author's research can be used as a source for research or teaching
of legal science in general and training judges in particular. On the other
hand, the contents of the dissertation can also contribute to the building of
the skills of investigation of documents, judicial skills and skills involved
in the proceedings of judicial teams, people's jurors, Prosecutor and
lawyers under the demand for judicial reform of the country.
6.2. Practical significance
The author has accesses judicial proceedings of the People’s court
from trial preparation to trial activity at the trial session. The author also
analyzes the shortcomings and limitations of the trial. The research results
of the author are the basis for contributing to the theoretical development
related to judicial activities, proposing solutions to continuously improving
the quality of judicial activities of the People's Courts in the judicial
reform process happening now in our country.
7. Structure of the thesis
In addition to the introduction, conclusion and bibliography, the
content of the thesis consists of four chapters:
Chapter 1: Overview of related research
Chapter 2: Theory of court of the first instance of criminal cases
Chapter 3: Provisions of the Procedure Code 2003 on court of the
first instance of criminal cases and implementation practices at provincial
People's Court in the Southeast of Vietnam.
Chapter 4: Requirements and solutions to improve the quality of court
of the first instance of criminal cases by the provincial People's Courts.
4


Chapter 1

The study of the Federal Republic of Germany and the French
Republic prosecution models has helped the author to better understand the
organization of court system of the Federal Republic of Germany and the
Republic of France, as well as the Code of Conduct when dealing with a
criminal case. These articles help the researcher to be equipped with the
theoretical background of judicial interrogation in some countries around
the world, which is the basis for the author to see how the organization
operates in Vietnam now.
1.2.3. Studies on judicial activity of several countries in the AsiaPacific region
Through the study of the criminal procedure model and the principles
of the trial of criminal cases in China and Japan, the authors realize that
the papers of oneself only show the analysis of the principles of criminal
procedure, criminal evidence and highlight the advantages of models of
litigation, prosecution and interrogation proceedings.
1.3. EVALUATION OF THE RESEARCH SITUATION AND ISSUES
OF FOCUS OF THE PAPER

1.3.1. Evaluation of the research situation
For research in Vietnam
The authors have scientifically studied the workings of the judiciary
bodies, the advantages and disadvantages of litigation models. Noticeably,
some works have analyzed the stages of criminal procedure in our country
and the meaning of each stage of criminal proceedings.
For international research
Studying overseas works related to judicial activity gives the author a
comprehensive comparison of international litigation models and provides
objective and scientific evaluation of the proposition in order to build a
model of legal proceedings in Vietnam to meet the socio-economic
conditions in the near future.
1.3.2. Issues of focus of the research

the Criminal Procedure Code 2003, the author developed the concept of
court of the first instance of criminal cases as follows:
Definition of court of the first instance of criminal cases:
Court of the first instance of criminal cases is the function of
exercising the judicial power of a state performed by a court at the first
level of trial, in which the court reviews all documents and evidence
related to the criminal case, on the basis of public disputes at the trial, the
court issues a judicial or procedural decision to declare a person guilty or
not guilty, to apply or not to apply penalties and resolve other problems
involved in criminal cases.
By analyzing the characteristics of court of the first instance of criminal
cases, the author develops the concept of court of the first instance of
criminal cases activities of the Provincial People's Courts as follows:
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The activities during court of the first instance of criminal cases done
by the Provincial People's Courts are criminal proceedings conducted by
the Trial Panels of the provincial People's Courts at the first level of trial
to review, assess and check all documents or evidence contained in the
case file, through the act of debate at the trial, on this basis the Trial
Panel, according to the provisions of the law, decides whether a person is
guilty or not guilty, to apply penalties or not and resolve issues involved in
criminal cases.
2.1.2. Characteristics of the court of the first instance of criminal
cases by provincial People's Court
Court of the first instance of criminal cases is a criminal procedure
which has similar characteristics to the investigation and prosecution
activity, but the court of the first instance of a criminal case by a provincial
People's Court is different in comparison with activities of the

In this section, the Judge presiding over the hearing shall examine
the identity, explain the rights and obligations of the accused, the victim,
the witness. At the same time, the Judge explains the rights and obligations
of participants in the proceedings.
Third, the interrogation activities at the trial
This is a very important content for determining the objective
truthfulness of the case, because the activities before the proceedings cannot
be publicized.
Fourth, litigation at the trial
Litigation is conducted after the Procuracy presents an impeachment.
Litigation is a requirement of the spirit of judicial reform, ensuring that the
conduct of criminal cases is democratic and objective.
Fifth, active deliberation
The deliberation proceedings are conducted by Judges and assessors
of the people’s council. Judge presiding over the deliberation activities
will have to address each issue of the case that must be settled so that the
Trial Panels can discuss and decide.
Sixth, sentencing activities
The sentencing activity of the People's Courts is carried out in the
name of the state, conducted by a Judge representing the Trial Panel to
publish judgments on penal liability and other judicial decisions related to
the case.
2.1.4. The role of the court of the first instance of criminal cases
First, from a legal point of view
Judicial activity is the proceeding of a direct investigation at the trial,
on the basis of the outcome of the public and democratic litigation of the
parties, the Court serves as the one to re-examines and evaluates in a
comprehensive and objective manner with complete evidence, details of the
criminal case to resolve the nature of the case - judge on the nature of the
criminal nature (or not) of the conduct, of guiltiness (or not) of the accused.

periods of the country such as:
Feudal period
French Colonization Period
The period from the August Revolution to 1954
The period from 1954 to 1975
The period from 1975 to 1988
The period from 1988 until 2003
Chapter 3
PROVISIONS OF CRIMINAL PROCEDURE CODE 2003 ON
COURT OF THE FIRST INSTANCE OF CRIMINAL CASES AND
IMPLEMENTATION PRACTICES AT PROVINCIAL PEOPLE'S
COURT IN THE SOUTHEAST OF VIETNAM
Provisions of the Procedure Code 2003 on the court of the first
instance of criminal cases and implementation practices at the Provincial
People's Court in the Southeast of Vietnam.
11


3.1. PROVISIONS OF CRIMINAL PROCEDURE CODE 2003 ON COURT
OF THE FIRST INSTANCE OF CRIMINAL CASES

3.1.1. Regulations on first instance jurisdiction
Jurisdiction power in court of first instance according to cases
The Criminal Procedure Code 2003 provides for case-by-case
jurisdiction to determine jurisdiction between courts at all levels. The
determination of jurisdiction according to the case is based on the nature of
the offense.
Jurisdiction by subject matter, jurisdiction over the main object is
the separation of judicial power between the People's Courts and the
Military Courts based on the offender.

Number

Court

01

Ho Chi Minh City

02

Dong Nai

03

Ba Ria – Vung Tau

04

Tay Ninh

05

Binh Duong

06

Binh Phuoc
Total

Number of

1072
18296

2149
2449
1011
17567

67
127
61
729

3,02 %
4.93 %
5.69 %
3,98 %

13


3.2.2. On jurisdiction and trial limits
The jurisdiction in accordance with the provisions of the Criminal
Procedure Code 2003, there are many inadequacies, unclear delineation
between competence level according to the case, competence according to
the object and territorial jurisdiction. The limitation on judicial
proceedings also restrains Court's right to independence.
3.2.3. On the accuracy of the issuance of procedural decisions
during the pretrial preparation stage
In real situation from 2006 to 2015, preparatory activities of court of

21
9
1632
2008
1772
78
37
1657
2009
1798
41
25
1732
2010
1813
73
29
1711
2011
1891
66
32
1793
2012
1937
28
15
1894
2013
2043

- Procedures for commencing court of the first instance of
criminal cases
- About the interrogation activities at the trial
+ Interrogation activities of the Judge
+ Interrogation activities by people's jurors
- On the debate at the trial
- The outcome of the litigation,
- On deliberation activity
- On sentencing activities
3.2.5. The reality of stringency and general prevention
For 10 years, the provincial People's Courts in the South East have
done well the task of judicial work. Criminal sentence has served the right
person guilty of crime, which has contributed to ensuring the maintenance of
security, order and general prevention. However, there are also many verdicts
after the declaration that have not been convincing to general public, and
many of the verdicts were reported by the media agencies doubting about the
authenticity and persuasiveness of the case, many cases were prolonged more
than usual to resolve. Many inmates who have completed the sentence got
back to criminal activities. Thus, on a certain level, it is found that the
sentence does not guarantee general deterrence and prevention.
3.3. Situation of the first instance judgment being appealed,
protested, results of the appellate trial, wrongful violations in the
application of the Criminal Procedure Code 2003 into adjudication
activity and their causes
3.3.1. The situation of the first-instance judgment being
appealed, protested and the result of the hearing of the appeal
From 2006 to 2015, the Provincial People's Courts in the Southeast
of Vietnam have adjudicated 13,646 criminal cases in the first instance, in
which the number of cases subject to annual appeals varies as follows:
Extracted data from Table 3.2 and 3.6

93,11 %
906
1240
73,06 %
682
1184
57,6 %
457
1955
23,37 %
485
1125
43,11 %
490
1161
42,2 %
524
1179
44,44 %
546
1195
45,69 %
Total
8172
13646
In 2006, the People's Court judged 1738 cases of first instance, in
which 1559 cases were appealed, the appeal rate is 89.7%. By 2015, the
total number of cases handled by the provincial court in the Southeast was
1195 cases, in which there are 546 appeals or protests, the rate accounted
for 45.69%.

instance

Suspension of court
of the first instance
ProceedCrimes
ings
left
infringuntried
ement
27
29

More
severe
sentence

Less
severe
sentence

Amended as
civic

Not
guilty

667

9


16

8

0

15

19

2009

754

791

722

7

11

5

0

24

22


14

8

0

17

10

2012

805

836

773

2

6

20

0

18

17


15

12

1

21

26

2015

991

1018

952

8

16

10

1

16

15


Year
Rate
appealed
first instance
71.58%
2006
1559
1116
73.72%
2007
1279
943
72.34%
2008
1244
900
74.06%
2009
906
671
69.35%
2010
682
473
68.49%
2011
457
313
65.97%
2012

3.3.2. Violations in the application of the provisions of the Criminal
Procedure Code 2003 to the first-instance trial of criminal cases
First, wrongful identification of the litigant
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According to aggregated data from Table 3.2, the number of crimes
left untried was 109 cases and 158 cases were dropped due to procedural
violations. Of the total of 158 cases of procedural violations, there were 51
cases of procedural violations due to wrong determination of the persons
involved in the proceedings and the guardians.
Second, wrongful identification of evidence in the case
Specifically, through the study of 158 cases of procedural violations,
69 cases identified the wrong evidence.
Third, the wrong identification of components of the jury
Of the 158 cases that were canceled due to procedural breach, 38
cases had incorrectly identified the composition of the jury and
jurisdiction.
Fourth, the violation of time to resolve the case
Annually, many cases still remained untried, the time to resolve a
case is still too long
Fifth, the violation of the principle of litigation
The Criminal Procedure Code 2003 has not materialized the
litigation as a principle, and the rules of procedure are only scattered in
some articles of the code, so it does not bind on the responsibility of the
Procuracy to fully join in with this responsibily, and also lawyers have not
fully played his role in the litigation.
3.3.3 The causes of inappropriateness in the application of the
provisions of the Criminal Procedure Code 2003 relating to
adjudication activity

Second, it is required when conducting trial activities to ensure
objectivity and strictly follow the two-level trial.
Thirdly, the request for trial activities, the right to defense of the
accused or defendants should be properly exercised.
Fourth, it is an urgent necessity to apply case law method in the trial
Fifth, the Courts are required to renovate the administrative-justice work.
This is to publicize and clarify the activities of the Court; to renovate
the judicial administrative procedures, eliminate unnecessary papers and
procedures, apply the one-door procedure; apply information technology
into administrative and judicial activities of the Court
Sixth, it is demanded to raise political and ideological education for
court officials
Every year, the leaders of the court should promote the movement of
stuyding and following Ho Chi Minh's example for the court staff.
Particularly, the Judge team need to implement well the code of conduct, the
moral of the service and the spirit and sense of devotion to serve the people.
4.1.2. Requirement to ensure rule of law principles in adjudication
Trial activities of the Court are activities of settling disputes in
society, handling law violations. The activity is directly related to the
rights and interests of people and of citizens. Therefore, the court's
adjudicating activities must comply with the principle of adjudication. This
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is the foundation for ensuring the quality of judging, protecting the human
rights, legitimate rights and interests of organizations and individuals.
4.1.3. Requirement of protection of human rights in adjudication
It is necessary to protect human rights in adjudicating activities, and
this requires the Court to fully implement the principles provided for by
the Criminal Procedure Code, including principles of presumption of

20


4.2.1. Prepare the necessary and sufficient conditions for training
about the Criminal Procedure Code 2015
First, classify the participants of training
Second, distribute and convey the provisions of the CPC related to
trial limits
Third, implement the provisions relating to jurisdiction
Fourth, implement the principles of litigation in the trial
4.2.2. Continue to improve the provisions of the Criminal Procedure
Code in 2015 on court of the first instance
The CPC 2015 has addressed the limitations of the former versions,
however, CPC 2015 still meets with a number of different opinions on
some aspects of judicial activity that needed to be continuously improved.
Specifically, there are following points:
Article 278. Application, change and cancellation of preventive
measures and coercive measures
Article 296. The presence of investigators and others
Article 298. Concerning the trial limits.
Clause 1, Article 325, when procurators withdraw part of their
prosecution decisions or conclude on less serious offenses, the Trial Panels
shall continue hearing the cases.
Clause 1, Article 329, to arrest the accused after pronouncement of
the judgment, except for cases specified in Clauses 4 and 5 of Article 328
of this Code.
4.2.3. Raise the capacity for trial operation of persons conducting
legal proceedings
First, renew the method of selection, working term of the judge
Second, enhance the judicial skills of the judges

monitoring, summing up the trial work is fundamental.
4.2.6. Strengthen the use of case law in judicial activities
Based on the advantages of case law, looking at the current
conditions of our country, the application of the case law is necessary in
order to improve the effectiveness of the trial.
4.2.7. Complete the provisions of the Penal Code
The Penal Code in 2015 is promulgated, but many laws were not
detail and have not enough capacity to adjust social relations. Therefore, in
order to meet the requirements of ensuring security and social order in the
immediate and long-term conditions, the Penal Code 2015 should be
adjusted accordingly to current situation is a necessary requirement.
4.2.8. Invest in equipment for the operation of the court
Apart from the functions and tasks assigned to the court by the state,
it is necessary to invest in court equipment in order to ensure continuous
22


operation. In reality of the equipment of the People's Court, in order to
ensure that the Court performs its function of trial, the State should pay
attention to some specific issues as follows:
First, the technical facilities that directly serve the court proceedings.
Second, more funds invested to renovate working offices with full
functional rooms.
Third, renew apparels for the judge, people's jury, court clerk and
lawyer.
4.2.9. Build the legal culture while strengthen legal education in
adjudication
Build a lifestyle that respects the law, builds a culture of legal
obedience when practicing trial. First of all, judges, people's procurators,
procurators, defendants and defense counsels must really respect the law.